Duties of Trustee and the Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and has not otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder. (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 are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty or the Group 2 Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer and any NIMS Insurer. (c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) 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 or with the consent of Holders of the Certificates as provided in Section 6.18 hereof; (ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee when required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance Policy; (iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreement; and (iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian. (d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property. (e) 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 any NIMS Insurer, the Certificate Insurer or the 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. (f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement. (g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 Basis Risk Reserve Fund, the Pool 2 Basis Risk Reserve Fund, the Swap Account, the Group 1 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon).
Appears in 2 contracts
Samples: Trust Agreement (Lehman XS Trust 2007-10h), Trust Agreement (Lehman XS Trust 2007-10h)
Duties of Trustee and the Paying Agent. (a) The Trustee, except during prior to the continuance occurrence of an Event of Default and after the curing or waiver of all Events of Default which a Responsible Officer of the Trustee shall may have actual knowledgeoccurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred occurs and has not otherwise been cured or waivedis continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement Agreement, and use the same degree of care and skill in their exercise as a prudent Person man would exercise or use under the circumstances in the conduct of such Person’s his own affairs unless affairs. Any permissive right of the Trustee is acting contained in this Agreement shall not be construed as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereundera duty.
(b) The TrusteeTrustee or the Paying Agent, as applicable, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Paying Agent, as applicable, which are specifically required to be furnished pursuant to any provision of this AgreementAgreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II), shall examine them to determine whether they are conform to the requirements of this Agreement to the extent specifically set forth herein. If any such instrument is found not to conform to the requirements of this Agreement in the form required by this Agreement; provideda material manner, however, that the Trustee or the Paying Agent, as applicable, shall take such action as it deems appropriate to have the instrument corrected. The Trustee or the Paying Agent, as applicable, shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor or the Master Servicer or the Special Servicer, any Servicer, and accepted by the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty Trustee or the Group 2 Cap Counterparty to the Trustee Paying Agent, as applicable, in good faith, pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) The Prior to the occurrence of an Event of Default, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken determined solely by it in good faith in accordance with the direction or with the consent express provisions of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed 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 have notice the truth of the statements and the correctness of the opinions expressed therein, upon any Event certificates or opinions furnished to the Trustee and conforming to the requirements of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or this Agreement;
(ii) to furnish information to Neither the Trustee when nor the Paying Agent shall be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Paying Agent, as applicable, unless it shall be proved that the Trustee or the Paying Agent, as applicable, was negligent in ascertaining the pertinent facts if it was required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance Policy;
(iii) No provision of this Agreement shall require Neither the Trustee to expend or risk its own funds or otherwise incur any financial liability in nor the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it Paying Agent 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; 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 Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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 the Paying Agent, as applicable, or exercising any trust or power conferred upon the Trustee or the Paying Agent, as applicable, under this Agreement.; and
(fiv) The Trustee shall not be required protections, immunities and indemnities afforded to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or hereunder shall also be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 Basis Risk Reserve Fund, the Pool 2 Basis Risk Reserve Fund, the Swap Account, the Group 1 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except available to the extent that the Trustee is the obligor Paying Agent, Authenticating Agent, Certificate Registrar, REMIC Administrator and has defaulted thereon)Custodian.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3), Pooling and Servicing Agreement (First Union National Bank Com Mort Pas THR Cert Ser 2002 C1)
Duties of Trustee and the Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and has not otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(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 are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty or the Group 2 Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer Certificateholders and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) 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 or with the consent of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee when required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance PolicyAgreement;
(iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 Basis Risk Reserve Fund, the Pool 2 Basis Risk Reserve Fund, the Swap Account, the Group 1 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall not have any duty (A) to record, file, or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to maintain any such recording or filing or depositing or any rerecording, refiling or redepositing of any such statement or agreement, (B) to procure or maintain any insurance, (C) to pay or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Collection Account or the Certificate Account or (D) to confirm or verify the contents of any reports or certificates of the Master Servicer, any Servicer, the Swap Counterparty, the Group 1 Cap Counterparty, the Group 2 Cap Counterparty or the Depositor delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for an error of judgment made in good faith by a Responsible Officer or any other officer of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, none of the Trustee or the Paying Agent shall be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or the Paying Agent, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) On or before March 15 of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-9, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall deliver to the Sponsor, the Master Servicer and the Depositor a report regarding its assessment of compliance with the Servicing Criteria applicable to such party, as identified on Exhibit O hereto, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the Servicing Criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable Servicing Criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable Servicing Criteria, which report shall be delivered by the Trustee as provided in Section 6.01(l). In the event that the Trustee and the Paying Agent are the same party, the Relevant Servicing Criteria of the Paying Agent shall be included in the Trustee’s report.. In addition, on or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-9, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, furnish or cause to be furnished to the Sponsor and the Depositor an assessment of compliance and accountant’s attestation of any Subservicer or Subcontractor with respect to the Trustee or Paying Agent, as applicable.
(l) On or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-9, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, cause a registered public accounting firm (who may also render other services to Trustee or Paying Agent), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor, the Master Servicer and the Depositor a report to the effect that (A) it has obtained a representation regarding certain matters from the management of such party, which includes an assertion that such party has complied with the Relevant Servicing Criteria, and (B) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such party’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such party’s assessment of compliance with the Relevant Servicing Criteria made by the Trustee or Paying Agent pursuant to Section 6.01(k) above. In the event that the Trustee and the Paying Agent are the same party, the attestation report caused to be furnished by the Trustee shall also address the Relevant Servicing Criteria of the Paying Agent.
(m) The Trustee shall give prior written notice to the Sponsor, the Master Servicer and the Depositor of the appointment of any Subcontractor by it and a written description (in form and substance satisfactory to the Sponsor and the Depositor) of the role and function of each Subcontractor utilized by the Trustee, specifying (A) the identity of each such Subcontractor and (B) which elements of the servicing criteria set forth under Item 1122(d) of Regulation AB will be addressed in assessments of compliance and accountant’s attestations provided by each such Subcontractor.
(n) For as long as the Depositor is subject to Exchange Act reporting with respect to the Trust Fund, the Trustee and the Paying Agent (if other than the Trustee) shall notify the Depositor, the Master Servicer and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit P hereto, together with a description thereof. On or before March 1st of each year, the Depositor shall distribute the information in Exhibit P to the Trustee.
(o) The Trustee agrees to indemnify the Depositor and the Master Servicer, and their respective directors, officers, employees and agents and the Trust Fund and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon any failure by the Trustee to comply with the provisions of Subsections 6.01(k) through (n) above or any failure by the Trustee to deliver any information, report, certification, accountants’ letter, or other material when and as required under this Agreement, including any report under Section 6.20; provided, however, that in no event shall the Trustee be liable for any special, consequential, indirect or punitive damages pursuant to this Section 6.01(o), even if advised of the possibility of such damages.
(p) The Paying Agent and Certificate Registrar shall have the same rights, protections, immunities and indemnities as are afforded to the Trustee pursuant to this Article VI.
Appears in 1 contract
Duties of Trustee and the Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and has not otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(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 are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty or the Group 2 Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer Certificateholders and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) 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 or with the consent of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee when required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance PolicyAgreement;
(iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 1-2 Basis Risk Reserve Fund, the Pool 2 3 Basis Risk Reserve Fund, the Swap Account, the Group 1 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall not have any duty (A) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to maintain any such recording or filing or depositing or any rerecording, refiling or redepositing of any such statement or agreement, (B) to procure or maintain any insurance, (C) to pay or discharge any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Collection Account or the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of the Master Servicer, any Servicer, the Cap Counterparty, the Swap Counterparty or the Depositor delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for an error of judgment made in good faith by a Responsible Officer or any other officer of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, none of the Trustee or any Paying Agent shall be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or the Paying Agent, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) On or before March 15 of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Lxxxxx XS Trust 2007-1, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall deliver to the Sponsor, the Master Servicer and the Depositor a report regarding its assessment of compliance with the Servicing Criteria applicable to such party, as identified on Exhibit O hereto, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the Servicing Criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable Servicing Criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable Servicing Criteria, which report shall be delivered by the Trustee as provided in Section 6.01(l). In the event that the Trustee and the Paying Agent are the same party, the Relevant Servicing Criteria of the Paying Agent shall be included in the Trustee’s report.. In addition, on or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Lxxxxx XS Trust 2007-1, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, furnish or cause to be furnished to the Sponsor and the Depositor an assessment of compliance and accountant’s attestation of any Subservicer or Subcontractor with respect to the Trustee or Paying Agent, as applicable.
(l) On or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Lxxxxx XS Trust 2007-1, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, cause a registered public accounting firm (who may also render other services to Trustee or Paying Agent), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor, the Master Servicer and the Depositor a report to the effect that (A) it has obtained a representation regarding certain matters from the management of such party, which includes an assertion that such party has complied with the Relevant Servicing Criteria, and (B) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such party’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such party’s assessment of compliance with the Relevant Servicing Criteria made by the Trustee or Paying Agent pursuant to Section 6.01(k) above. In the event that the Trustee and the Paying Agent are the same party, the attestation report caused to be furnished by the Trustee shall also address the Relevant Servicing Criteria of the Paying Agent.
(m) The Trustee shall give prompt written notice to the Sponsor, the Master Servicer and the Depositor of the appointment of any Subcontractor by it and a written description (in form and substance satisfactory to the Sponsor and the Depositor) of the role and function of each Subcontractor utilized by the Trustee, specifying (A) the identity of each such Subcontractor and (B) which elements of the servicing criteria set forth under Item 1122(d) of Regulation AB will be addressed in assessments of compliance and accountant’s attestations provided by each such Subcontractor.
(n) For as long as the Depositor is subject to Exchange Act reporting with respect to the Trust Fund, the Trustee and the Paying Agent (if other than the Trustee) shall notify the Depositor, the Master Servicer and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit P hereto, together with a description thereof. On or before March 1st of each year, the Depositor shall distribute the information in Exhibit P to the Trustee.
(o) The Trustee agrees to indemnify the Depositor and the Master Servicer, and their respective directors, officers, employees and agents and the Trust Fund and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon any failure by the Trustee to comply with the provisions of Subsections 6.01(k) through (n) above or any failure by the Trustee to deliver any information, report, certification, accountants’ letter, or other material when and as required under this Agreement, including any report under Section 6.20; provided, however, that in no event shall the Trustee be liable for any special, consequential, indirect or punitive damages pursuant to this Section 6.01(o), even if advised of the possibility of such damages.
(p) The Paying Agent and Certificate Registrar shall have the same rights, protections, immunities and indemnities as are afforded to the Trustee pursuant to this Article VI.
Appears in 1 contract
Duties of Trustee and the Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and has not otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(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 are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty or the Group 2 Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) 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 or with the consent of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee when required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance Policy;
(iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 1-2 Basis Risk Reserve Fund, the Pool 2 3 Basis Risk Reserve Fund, the Group I Swap Account, the Group 1 I Cap Account, the Class 3-A1 Cap Account, the Group 1 I Collateral Account or the Group 2 Class 3-A1 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon).
Appears in 1 contract
Duties of Trustee and the Paying Agent. (a) The Trustee, except during prior to the continuance occurrence of an Event of Default and after the curing or waiving of all Events of Default which a Responsible Officer of the Trustee shall may have actual knowledgeoccurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred occurs and has not otherwise been cured or waivedis continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement Agreement, and use the same degree of care and skill in their exercise as a prudent Person person would exercise or use under the circumstances in the conduct of such Person’s his own affairs unless affairs. Any permissive right of the Trustee is acting contained in this Agreement shall not be construed as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereundera duty.
(b) The TrusteeTrustee or the Paying Agent, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Paying Agent which are specifically required to be furnished pursuant to any provision of this AgreementAgreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II), shall examine them to determine whether they are in conform to the form required by requirements of this Agreement; provided. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, however, that the Trustee or the Paying Agent shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Paying Agent shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any ServicerDepositor, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty Servicer or the Group 2 Cap Counterparty to Special Servicer or another Person, and accepted by the Trustee or the Paying Agent in good faith, pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). No provision of this Agreement shall be construed to relieve the Trustee or the Paying Agent from liability for its own negligent action, its own negligent failure to act or its own willful misconductmisconduct or bad faith; provided, however, that:
(i) The Prior to the occurrence of an Event of Default, and after the curing of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken determined solely by it in good faith in accordance with the direction or with the consent express provisions of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed 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 have notice the truth of the statements and the correctness of the opinions expressed therein, upon any Event certificates or opinions furnished to the Trustee and conforming to the requirements of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or this Agreement;
(ii) to furnish information to Neither the Trustee when required to do so) unless nor the Paying Agent shall be liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee has actual knowledge thereof or the Paying Agent, respectively, unless written notice of any event which is in fact such a default is received by it shall be proved that the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under Paying Agent, respectively, was negligent in ascertaining the Certificate Insurance Policy;
(iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreementpertinent facts; and
(iviii) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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 Trustee, or exercising any trust or power conferred upon the Trustee Trustee, under this AgreementAgreement (unless a higher percentage of Voting Rights is required for such action).
(fd) The Trustee Paying Agent shall not be required promptly make available via its Internet Website to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing Companion Holder all reports that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured Paying Agent has made available to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer Certificateholders under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 Basis Risk Reserve Fund, the Pool 2 Basis Risk Reserve Fund, the Swap Account, the Group 1 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the extent that such reports relate to the Trustee is the obligor and has defaulted thereon)Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Jp Morgan Chase Comm Mort Pass THR Certs Ser 2003-Pm1)
Duties of Trustee and the Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and has not otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(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 are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty or the Group 2 Cap Counterparty to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer Certificateholders and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) 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 or with the consent of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee when required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance PolicyAgreement;
(iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, the Pool 1 1A-1B Basis Risk Reserve Fund, the Pool 2 Basis Risk Reserve Fund, the Pool 3A-3B Basis Risk Reserve Fund, the Group 1 Swap Account, the Group 2 Swap Account, the Group 1 Cap Account, the Group 2 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account resulting from any investment loss on any Eligible Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall not have any duty (A) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to maintain any such recording or filing or depositing or any rerecording, refiling or redepositing of any such statement or agreement, (B) to procure or maintain any insurance, (C) to pay or discharge any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Collection Account or the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of the Master Servicer, any Servicer, the Cap Counterparty, the Swap Counterparty or the Depositor delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for an error of judgment made in good faith by a Responsible Officer or any other officer of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, none of the Trustee or any Paying Agent shall be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or the Paying Agent, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) On or before March 15 of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-3, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall deliver to the Sponsor, the Master Servicer and the Depositor a report regarding its assessment of compliance with the Servicing Criteria applicable to such party, as identified on Exhibit O hereto, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the Servicing Criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable Servicing Criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable Servicing Criteria, which report shall be delivered by the Trustee as provided in Section 6.01(l). In the event that the Trustee and the Paying Agent are the same party, the Relevant Servicing Criteria of the Paying Agent shall be included in the Trustee’s report.. In addition, on or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-3, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, furnish or cause to be furnished to the Sponsor and the Depositor an assessment of compliance and accountant’s attestation of any Subservicer or Subcontractor with respect to the Trustee or Paying Agent, as applicable.
(l) On or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-3, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, cause a registered public accounting firm (who may also render other services to Trustee or Paying Agent), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor, the Master Servicer and the Depositor a report to the effect that (A) it has obtained a representation regarding certain matters from the management of such party, which includes an assertion that such party has complied with the Relevant Servicing Criteria, and (B) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such party’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such party’s assessment of compliance with the Relevant Servicing Criteria made by the Trustee or Paying Agent pursuant to Section 6.01(k) above. In the event that the Trustee and the Paying Agent are the same party, the attestation report caused to be furnished by the Trustee shall also address the Relevant Servicing Criteria of the Paying Agent.
(m) The Trustee shall give prompt written notice to the Sponsor, the Master Servicer and the Depositor of the appointment of any Subcontractor by it and a written description (in form and substance satisfactory to the Sponsor and the Depositor) of the role and function of each Subcontractor utilized by the Trustee, specifying (A) the identity of each such Subcontractor and (B) which elements of the servicing criteria set forth under Item 1122(d) of Regulation AB will be addressed in assessments of compliance and accountant’s attestations provided by each such Subcontractor.
(n) For as long as the Depositor is subject to Exchange Act reporting with respect to the Trust Fund, the Trustee and the Paying Agent (if other than the Trustee) shall notify the Depositor, the Master Servicer and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit P hereto, together with a description thereof. On or before March 1st of each year, the Depositor shall distribute the information in Exhibit P to the Trustee.
(o) The Trustee agrees to indemnify the Depositor and the Master Servicer, and their respective directors, officers, employees and agents and the Trust Fund and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon any failure by the Trustee to comply with the provisions of Subsections 6.01(k) through (n) above or any failure by the Trustee to deliver any information, report, certification, accountants’ letter, or other material when and as required under this Agreement, including any report under Section 6.20; provided, however, that in no event shall the Trustee be liable for any special, consequential, indirect or punitive damages pursuant to this Section 6.01(o), even if advised of the possibility of such damages.
(p) The Paying Agent and Certificate Registrar shall have the same rights, protections, immunities and indemnities as are afforded to the Trustee pursuant to this Article VI.
Appears in 1 contract
Samples: Trust Agreement (LXS 2007-3)
Duties of Trustee and the Paying Agent. (a) The Trustee, except during the continuance of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee provided for in this Agreement shall not be construed as a duty of the Trustee. If an Event of Default (of which a Responsible Officer of the Trustee shall have actual knowledge) has occurred and has not otherwise been cured or waived, the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs unless the Trustee is acting as Master Servicer, in which case it shall use the same degree of care and skill as the Master Servicer hereunder.
(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 are in the form required by this Agreement; provided, however, that the Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer, any Servicer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty Servicer or the Group 2 Cap Counterparty Servicer to the Trustee pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform on its face to the form required by this Agreement the Trustee shall notify the Person providing such resolutions, certificates, statements, opinions, reports, documents, order or other instrument of the non-conformity, and if the failure to provide such resolution, certificate, statement, opinion, report, document, order or other instrument would constitute an Event of Default under this Agreement, the Trustee will provide notice thereof to the Certificateholders, the Certificate Insurer 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 further action as directed by the Certificateholders, the Certificate Insurer Certificateholders and any NIMS Insurer.
(c) The Trustee shall not have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). 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) 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 or with the consent of Holders of the Certificates as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Trustee when required to do so) unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Holders of the Certificates and this Agreement or the Certificate Insurer under the Certificate Insurance PolicyAgreement;
(iii) No provision of this Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; 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 Depositor or the Master Servicer under this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of the Master Servicer, any the Servicer, the Depositor, the Certificate Insurer, the Group 1 Swap Counterparty, the Group 1 Cap Counterparty, the Balance Guaranteed Cap Counterparty, the Group 2 Cap Counterparty, the Seller or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property.
(e) 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 any NIMS Insurer, the Certificate Insurer or the 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.
(f) The Trustee shall not be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any the Servicer under this Agreement or any the Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in the Collection Account, Account or the Pool 1 Basis Risk Reserve Fund, the Pool 1-2 Basis Risk Reserve Fund, the Swap Account, the Group 1 Cap Account, the Group 1 Collateral Account or the Group 2 Collateral Account Fund resulting from any investment loss on any Eligible Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall not have any duty (A) to record, file or deposit this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to maintain any such recording or filing or depositing or any rerecording, refiling or redepositing of any such statement or agreement, (B) to procure or maintain any insurance, (C) to pay or discharge any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Collection Account or the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of the Master Servicer, the Servicer or the Depositor delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for an error of judgment made in good faith by a Responsible Officer or any other officer of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, none of the Trustee or any Paying Agent shall be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or the Paying Agent, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) On or before March 15 of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-5H, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall deliver to the Sponsor, the Master Servicer and the Depositor a report regarding its assessment of compliance with the Servicing Criteria applicable to such party, as identified on Exhibit O hereto, as of and for the period ending the end of the fiscal year ending no later than December 31 of the year prior to the year of delivery of the report. Each such report shall include (a) a statement of the party’s responsibility for assessing compliance with the Servicing Criteria applicable to such party, (b) a statement that such party used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable Servicing Criteria, (c) disclosure of any material instance of noncompliance identified by such party and (d) a statement that a registered public accounting firm has issued an attestation report on such party’s assessment of compliance with the applicable Servicing Criteria, which report shall be delivered by the Trustee as provided in Section 6.01(l). In the event that the Trustee and the Paying Agent are the same party, the Relevant Servicing Criteria of the Paying Agent shall be included in the Trustee’s report.. In addition, on or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-5H, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, furnish or cause to be furnished to the Sponsor and the Depositor an assessment of compliance and accountant’s attestation of any Subservicer or Subcontractor with respect to the Trustee or Paying Agent, as applicable.
(l) On or before March 15th of each calendar year for so long as the Depositor is subject to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-5H, beginning in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall, at their own expense, cause a registered public accounting firm (who may also render other services to Trustee or Paying Agent), which is a member of the American Institute of Certified Public Accountants, to furnish to the Sponsor, the Master Servicer and the Depositor a report to the effect that (A) it has obtained a representation regarding certain matters from the management of such party, which includes an assertion that such party has complied with the Relevant Servicing Criteria, and (B) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such party’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such party’s assessment of compliance with the Relevant Servicing Criteria made by the Trustee or Paying Agent pursuant to Section 6.01(k) above. In the event that the Trustee and the Paying Agent are the same party, the attestation report caused to be furnished by the Trustee shall also address the Relevant Servicing Criteria of the Paying Agent.
(m) The Trustee shall give prompt written notice to the Sponsor, the Master Servicer and the Depositor of the appointment of any Subcontractor by it and a written description (in form and substance satisfactory to the Sponsor and the Depositor) of the role and function of each Subcontractor utilized by the Trustee, specifying (A) the identity of each such Subcontractor and (B) which elements of the servicing criteria set forth under Item 1122(d) of Regulation AB will be addressed in assessments of compliance and accountant’s attestations provided by each such Subcontractor.
(n) For as long as the Depositor is subject to Exchange Act reporting with respect to the Trust Fund, the Trustee and the Paying Agent (if other than the Trustee) shall notify the Depositor, the Master Servicer and the Sponsor within five (5) days of knowledge thereof (i) of any legal proceedings pending against the Trustee of the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become (but only to the extent not previously disclosed) at any time an affiliate of any of the parties listed on Exhibit P hereto, together with a description thereof. On or before March 1st of each year, the Depositor shall distribute the information in Exhibit P to the Trustee.
(o) The Trustee agrees to indemnify the Depositor and the Master Servicer, and their respective directors, officers, employees and agents and the Trust Fund and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon any failure by the Trustee to comply with the provisions of Subsections 6.01(k) through (n) above or any failure by the Trustee to deliver any information, report, certification, accountants’ letter, or other material when and as required under this Agreement, including any report under Section 6.20; provided, however, that in no event shall the Trustee be liable for any special, consequential, indirect or punitive damages pursuant to this Section 6.01(o), even if advised of the possibility of such damages.
(p) The Paying Agent and Certificate Registrar shall have the same rights, protections, immunities and indemnities as are afforded to the Trustee pursuant to this Article VI.
Appears in 1 contract
