Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 10 contracts

Samples: Servicing Agreement (Impac CMB Trust Series 2002-8), Servicing Agreement (Imh Assets Corp Collateralized Asset Backed Bonds Ser 2004 3), Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2003-5)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the ~~Trust~~Depositor's satisfying the reporting requirements in respect of the Trust under the Exchange Act. The ~~Indenture Trustee~~ Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Depositor with respect to the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each ~~such document on behalf~~ Form 8-K with a copy of the ~~Depositor and the Issuer~~related Monthly Certificateholders Report attached thereto. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture Any other attachments to ~~the contrary, the Master Servicer, and not the Indenture Trustee, shall~~ be ~~responsible for executing each Form 10-K~~ filed ~~on behalf of the Trust. (b) Each~~ with any Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent in Xxxxx-compatible form or as otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. ~~If they are not so timely delivered,~~ Such XXXXX filings shall be at the ~~Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to~~ expense of the ~~Indenture Trustee~~Depositor. The ~~Indenture Trustee~~ Paying Agent shall ~~have no liability with respect~~ continue to ~~any failure to properly prepare~~ make such filings until such time as the Depositor notifies the Paying Agent that it has obtained from the Securities and Exchange Commission a no-action letter or ~~file such periodic reports resulting from or~~ other exemptive relief relating to reducing reporting requirements in respect of the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 Trust under the Exchange Act and, in accordance with and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused extent permitted by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, ~~the Indenture Trustee shall file with the Commission~~ has filed a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic termination of reporting in respect of the Trust under the Exchange Act. Beginning on or before January 31, 2002, the Depositor shall pay the Paying Agent before January 31 of each year a fee of $5,000 as compensation for preparing and filing such reports.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc), Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep for Series 2001-Top), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section ~~3.16~~ 3.20 and the accountant's report described under Section ~~3.17~~3.21, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission,~~ which shall be signed by the senior officer of the ~~Master Servicer~~ Depositor in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates regarding certain aspects ~~of items 1 through 3~~ of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of ~~any~~ the accountant's report attached as an exhibit to the Form 10-K). . The Indenture Trustee's certification shall be delivered to the Depositor by no later than March 19th of each year (dor if such day is not a Business Day, the immediately preceding Business Day) and the Depositor shall deliver the Certification to the Indenture Trustee for filing no later than March 20th of each year (or if such day is not a Business Day, the immediately preceding Business Day). In addition, ~~(i)~~ the Indenture Trustee shall indemnify and hold harmless the ~~Master Servicer and the~~ Depositor and ~~their~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section ~~4.06 caused by~~ 4.02(c) or the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith~~, and (ii) the Master Servicer~~ . The Depositor shall indemnify and hold harmless the Indenture ~~Trustee, the Master Servicer, the Issuer~~ Trustee and ~~their respective~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Master Servicer~~Depositor's obligations under this Section ~~4.06~~ 4.02 or the ~~Master Servicer~~Depositor's negligence, bad faith or willful misconduct in connection therewith. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Master Servicer~~Depositor or the Indenture Trustee, as applicable, then the other party, in connection with a breach of its respective obligations under this Section 4.02 with respect to the Depositor or Section 4.02(c) with respect to the Indenture Trustee or its respective negligence, bad faith or willful misconduct in connection therewith, agrees that it shall contribute to the amount paid or payable by the ~~Master Servicer~~ other party as a result of the losses, claims, damages or liabilities of the ~~Master Servicer~~ other party in such proportion as is appropriate to reflect the relative fault and the relative benefit of the ~~Master Servicer~~ Depositor on the one hand and the Indenture Trustee on the ~~other in connection~~ other. (d) Upon any filing with ~~a breach of~~ the ~~Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence~~Securities and Exchange Commission, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as shall promptly deliver to the Depositor a ~~result~~ copy of ~~the losses~~any executed report, ~~claims, damages~~ statement or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithinformation. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file ~~with the Commission~~ a Form ~~15D~~ 15 Suspension Notification with respect to the Trust. (f) To the extent that, following the Closing Date, the Depositor certifies to the Indenture Trustee that reports and certifications differing from those required under this Section 4.06 comply with the reporting requirements under the Exchange Act, the Indenture Trustee hereby agrees that it will reasonably cooperate to amend the provisions of this Section 4.02 (in accordance with Section 7.01) in order to comply with such amended reporting requirements and such amendment of this Section 4.

Appears in 5 contracts

Samples: Servicing Agreement (New Century Mort Sec Inc Home Equity Loan Trust 2003 6), Servicing Agreement (New Century Home Equity Loan Trust 2005-1), Servicing Agreement (New Century Home Equity Loan Trust 2004-1)

Exchange Act Reporting. (a) The ~~Indenture Trustee and the~~ Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereundershall, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and in respect of the ~~Issuer. Such power~~ Trust Estate, sign and cause to be filed with the Commission any periodic reports required to be filed under the provisions of ~~attorney~~ the Exchange Act, and the rules and regulations of the Commission thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with the preparation and filing of such periodic reports, the Indenture Trustee shall ~~continue until~~ timely provide to the ~~earlier~~ Master Servicer (I) a list of Securityholders as shown on the Certificate Register and the Note Register as of the end of each calendar year, (iII) ~~receipt~~ copies of all pleadings, other legal process and any other documents relating to any claims, charges or complaints involving the Indenture Trustee, as trustee hereunder, or the Trust Estate that are received by the Indenture ~~Trustee from~~ Trustee, (III) notice of all matters that, to the actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted to a vote of the Securityholders, other than those matters that have been submitted to a vote of the Securityholders at the request of the Depositor ~~and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or ~~in the Indenture to the contrary,~~ the Master Servicer, and ~~not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf~~ (IV) notice of ~~the Trust. (b) Each Form 8-K shall be filed by~~ any failure of the Indenture Trustee ~~within 15 days after each Distribution Date, with a copy of the statement~~ to make any distribution to the ~~Certificateholders for such Distribution Date~~ Securityholders as ~~an exhibit thereto~~required pursuant to this Agreement. ~~Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ Neither the ~~Exchange Act and the Rules and Regulations of the Commission),~~ Master Servicer nor the Indenture Trustee shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer~~ have any liability with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to ~~the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits~~ the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Master Servicer's inability or failure to obtain any information not resulting from ~~its~~ the Master Servicer's own negligence or willful misconduct~~. The~~ (b) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall ~~also include a certification~~ include: (i) A certification, signed by the senior officer in charge of the servicing functions of the Master Servicer, in the form attached ~~hereto~~ as Exhibit ~~C-1~~ E hereto or such other form as may be required or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by~~ . (ii) A report regarding its assessment of compliance during the ~~senior officer of~~ preceding calendar year with all applicable servicing criteria set forth in relevant Commission regulations with respect to mortgage-backed securities transactions taken as a whole involving the Master Servicer that are backed by the same types of assets as those backing the certificates, as well as similar reports on assessment of compliance received from other parties participating in ~~charge~~ the servicing function as required by relevant Commission regulations, as described in Item 1122(a) of ~~securitization~~Regulation AB. The Master Servicer shall obtain from all other parties participating in the servicing function any required certifications. (iii) With respect to each assessment report described immediately above, a report by a registered public accounting firm that attests to, and reports on, the assessment made by the asserting party, as set forth in relevant Commission regulations, as described in Regulation 1122(b) of Regulation AB and Section 3.11. (iv) The servicer compliance certificate required to be delivered pursuant Section 3.10. (c) In ~~addition~~connection with the Form 10-K Certification, the Indenture Trustee shall ~~sign~~ provide the Master Servicer with a back-up certification (substantially in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K).F. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 4.03 may be amended ~~by the Master Servicer, the Issuer and the Indenture Trustee~~ in accordance with this Servicing Agreement without the consent of the Securityholders. (ge) ~~Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the~~ The Indenture Trustee shall ~~file~~ make available on the Indenture Trustee's internet website each of the reports filed with the Commission ~~a Form 15D Suspension Notification with respect~~ by or on behalf of the Depositor under the Exchange Act, as soon as reasonably practicable upon delivery of such reports to the ~~Trust~~Indenture Trustee.

Appears in 5 contracts

Samples: Servicing Agreement (Home Equity Loan Trust 2006-Hsa4), Servicing Agreement (Home Equity Loan Trust 2006-Hsa3), Servicing Agreement (Home Equity Loan Trust 2007-Hsa3)

Exchange Act Reporting. (a) The ~~Indenture Trustee and the~~ Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereundershall, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and in respect of the ~~Issuer. Such power~~ Trust Estate, sign and cause to be filed with the Commission any periodic reports required to be filed under the provisions of ~~attorney~~ the Exchange Act, and the rules and regulations of the Commission thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with the preparation and filing of such periodic reports, the Indenture Trustee shall ~~continue until~~ timely provide to the ~~earlier~~ Master Servicer (I) a list of Securityholders as shown on the Register as of the end of each calendar year, (iII) ~~receipt~~ copies of all pleadings, other legal process and any other documents relating to any claims, charges or complaints involving the Indenture Trustee, as trustee hereunder, or the Trust Estate that are received by the Indenture ~~Trustee from~~ Trustee, (III) notice of all matters that, to the actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted to a vote of the Securityholders, other than those matters that have been submitted to a vote of the Securityholders at the request of the Depositor ~~and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or ~~in the Indenture to the contrary,~~ the Master Servicer, and ~~not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf~~ (IV) notice of ~~the Trust. (b) Each Form 8-K shall be filed by~~ any failure of the Indenture Trustee ~~within 15 days after each Distribution Date, with a copy of the statement~~ to make any distribution to the ~~Certificateholders for such Distribution Date~~ Securityholders as ~~an exhibit thereto~~required pursuant to this Agreement. ~~Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ Neither the ~~Exchange Act and the Rules and Regulations of the Commission),~~ Master Servicer nor the Indenture Trustee shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer~~ have any liability with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to ~~the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits~~ the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Master Servicer's inability or failure to obtain any information not resulting from ~~its~~ the Master Servicer's own negligence or willful misconduct~~. The~~ (b) Any Form 10-K filed with the Commission in connection with this Section 4.04 shall ~~also include a certification~~ include: (i) A certification, signed by the senior officer in charge of the servicing functions of the Master Servicer, in the form attached ~~hereto~~ as Exhibit ~~C-1~~ D hereto or such other form as may be required or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by~~ . (ii) A report regarding its assessment of compliance during the ~~senior officer of~~ preceding calendar year with all applicable servicing criteria set forth in relevant Commission regulations with respect to mortgage-backed securities transactions taken as a whole involving the Master Servicer that are backed by the same types of assets as those backing the certificates, as well as similar reports on assessment of compliance received from other parties participating in ~~charge~~ the servicing function as required by relevant Commission regulations, as described in Item 1122(a) of ~~securitization~~Regulation AB. The Master Servicer shall obtain from all other parties participating in the servicing function any required certifications. (iii) With respect to each assessment report described immediately above, a report by a registered public accounting firm that attests to, and reports on, the assessment made by the asserting party, as set forth in relevant Commission regulations, as described in Regulation 1122(b) of Regulation AB and Section 3.11. (iv) The servicer compliance certificate required to be delivered pursuant Section 3.10. (c) In ~~addition~~connection with the Form 10-K Certification, the Indenture Trustee shall ~~sign~~ provide the Master Servicer with a back-up certification (substantially in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K).E. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 4.04 may be amended ~~by the Master Servicer, the Issuer and the Indenture Trustee~~ in accordance with this Servicing Agreement without the consent of the Securityholders. (ge) ~~Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the~~ The Indenture Trustee shall ~~file~~ make available on the Indenture Trustee's internet website each of the reports filed with the Commission ~~a Form 15D Suspension Notification with respect~~ by or on behalf of the Depositor under the Exchange Act, as soon as reasonably practicable upon delivery of such reports to the ~~Trust~~Indenture Trustee.

Appears in 5 contracts

Samples: Servicing Agreement (Home Loan Trust 2006-Hi1), Servicing Agreement (Home Loan Trust 2006-Hi2), Servicing Agreement (Home Loan Trust 2006-Hi4)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Bondholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 4 contracts

Samples: Servicing Agreement (Imh Assets Corp Collateralized Asset Backed Bonds Se 03 12), Servicing Agreement (Impac CMB Trust Series 2004-2), Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2004-1)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the ~~Issuer.~~ Issuer provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's ’s interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section 3.16 and the accountant's ’s report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "“Certification"”), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's ’s obligations under this Section 4.06 caused by the Indenture Trustee's ’s negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's ’s obligations under this Section 4.06 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's ’s obligations under this Section 4.06 caused by the Indenture Trustee's ’s negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's ’s obligations under this Section 4.06 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the ~~Securityholders~~Securityholders but with the consent of the Bond Insurer. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 4 contracts

Samples: Servicing Agreement (IMPAC CMB Trust Series 2005-5), Servicing Agreement (Imh Assets Corp., Collateralized Asset-Backed Bonds, Series 2005-7), Servicing Agreement (IMPAC CMB Trust Series 2005-5)

Exchange Act Reporting. (a) The Indenture Trustee and the RMBS Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K K, or other comparable Form containing the same or comparable information or other information mutually agreed upon, (other than the initial report on Form 8-K) and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) The Depositor shall prepare and file or cause to be prepared and filed the initial current report on Form 8-K for the Issuer. Each Form 8-K thereafter shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. If expressly instructed in writing by the Depositor, the Indenture Trustee shall, in accordance with industry standards, prepare and deliver to the Depositor for execution a Form 15 Suspension Notice with respect to the Issuer. Prior to (unless and until a Form 15 Suspension Notice shall have been filed) March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the ~~Master Servicer~~ Depositor with the Form 10-K no later than March ~~20th~~ 25th of each year. The ~~Master Servicer~~ Depositor shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March ~~25th~~ 27th of each year. Such Form 10-K shall include as exhibits the RMBS Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the RMBS Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the RMBS Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the ~~Master Servicer~~ Issuer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a ~~breach~~ failure of the Indenture ~~Trustee's obligations under this Section 4.06 caused by~~ Trustee to deliver the ~~Indenture Trustee's negligence, bad faith or willful misconduct~~ certification referred to in ~~connection therewith~~clause (c) above, and (ii) the RMBS Master Servicer shall indemnify and hold harmless the ~~Indenture Trustee~~Issuer, the ~~Master Servicer, the Issuer~~ Depositor and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the RMBS Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the RMBS Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the RMBS Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Servicing Agreement (American Home Mortgage Investment Trust 2004-4), Servicing Agreement (American Home Mortgage Investment Trust 2004-4), Servicing Agreement (American Home Mortgage Investment Trust 2004-4)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture~~ Master Servicer, the Special Servicer, the Trustee ~~and the Master Servicer~~ shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture~~ Within 15 days after each Distribution Date, the Trustee shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Trustee shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Trustee in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Trustee and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture~~ Trustee shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. ~~The Indenture~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Trustee nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture~~ Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Trust under the Exchange Act.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 HQ5), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 HQ5), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 HQ5)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture ~~Trustee~~ trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section ~~4.06~~ 4.07 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 4.07 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section ~~4.06~~ 4.07 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 4.07 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic~~ Operative Documents, the provisions of this Section ~~4.06~~ 4.07 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form ~~15D~~ 1 5D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2002 9f), Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2003-2f), Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2002 9f)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. , provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to ~~March 30th~~ June 29th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Servicing Agreement (IMPAC CMB Trust SERIES 2004-6), Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2004-7), Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2004-9)

Exchange Act Reporting. (a) The Indenture Trustee and the HELOC Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K K, or other comparable Form containing the same or comparable information or other information mutually agreed upon, (other than the initial report on Form 8-K) and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) The Depositor shall prepare and file or cause to be prepared and filed the initial current report on Form 8-K for the Issuer. Each Form 8-K thereafter shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. If expressly instructed in writing by the Depositor, the Indenture Trustee shall, in accordance with industry standards, prepare and deliver to the Depositor for execution a Form 15 Suspension Notice with respect to the Issuer. Prior to (unless and until a Form 15 Suspension Notice shall have been filed) March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the ~~Master Servicer~~ Depositor with the Form 10-K no later than March ~~20th~~ 25th of each year. The ~~Master Servicer~~ Depositor shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March ~~25th~~ 27th of each year. Such Form 10-K shall include as exhibits the HELOC Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the HELOC Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the HELOC Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the ~~Master Servicer~~ Issuer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a ~~breach~~ failure of the Indenture ~~Trustee's obligations under this Section 4.06 caused by~~ Trustee to deliver the ~~Indenture Trustee's negligence, bad faith or willful misconduct~~ certification referred to in ~~connection therewith~~clause (c) above, and (ii) the HELOC Master Servicer shall indemnify and hold harmless the ~~Indenture Trustee~~the Issuer, the ~~Master Servicer, the Issuer~~ Depositor and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the HELOC Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the HELOC Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the HELOC Master Servicer, the ~~Issuer~~ Issuer, the Seller and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in the form attached hereto as Exhibit ~~C-1~~ CC, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the ~~"Certification"~~Certifying Person is an individual), and such entity's officers, directors and Affiliates (collectively with the Certifying Person, "Certification Parties") can rely. In addition, in ~~compliance~~ the event that any Serviced Companion Mortgage Loan is deposited into a commercial mortgage securitization, each Performing Party shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with ~~Rules 13a-14~~ respect to such commercial mortgage securitization a Performance Certification (which shall address the matters contained in the Performance Certification, but solely with respect to the related Serviced Companion Mortgage Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and ~~15d-14 under~~ such entity's officers, directors and Affiliates can rely. The Master Servicer shall serve as the ~~Exchange Act and any additional directives~~ Certifying Person on behalf of the ~~Commission~~Trust. In addition, ~~which~~ if the Performing Party is the Special Servicer, such Performing Party shall ~~be signed by~~ execute a reasonable reliance certificate to enable the ~~senior officer~~ Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the ~~Master Servicer~~ certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in ~~charge~~ Section 9.19. In the event any Performing Party is terminated or resigns pursuant to the terms of ~~securitization~~this Agreement, such Performing Party shall provide a Performance Certification to the Certifying Person pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and~~ Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless than the Master Servicer, ~~then the Indenture Trustee agrees that it~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~contribute to the amount paid or payable by the Master Servicer~~ not be regarded as a ~~result~~ breach by such party of ~~the losses, claims, damages or liabilities~~ any of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's its obligations under this Agreement. This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 HQ4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust Series 2004-Top15), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Inc Trust 2004 Top14)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee Administrator shall prepare or cause to be prepared on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Administrator shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the ~~Indenture Trustee~~ Administrator shall file or cause to be filed (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the ~~Indenture Trustee~~ Administrator a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture Trustee~~ Servicer from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Administrator, and not the ~~Indenture Trustee~~Servicer, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture Trustee~~ Administrator or its delegatee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), beginning in 2005, the ~~Indenture Trustee~~ Administrator shall file (or cause to be filed) a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission ~~staff's~~ staffs interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the ~~Master~~ Servicer's annual statement of compliance described under Section ~~3.16~~ 3.15 and the accountant's report described under Section ~~3.17~~3.16, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Administrator shall file (or cause to be filed) an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Administrator. The ~~Indenture Trustee~~ Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Administrator's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ C-l (the "Certification")~~, in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by the senior officer of the ~~Master Servicer in charge of securitization~~Administrator. (c) ~~In addition~~Upon any filing with the Securities and Exchange Commission, the ~~Indenture Trustee~~ Administrator shall ~~sign~~ promptly deliver to the Issuer a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~executed report, statement or information. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Administrator shall file ~~with the Commission~~ (or cause to be filed) a Form ~~15D~~ 15 Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Servicing Agreement (Origen Residential Securities, Inc.), Servicing Agreement (Origen Residential Securities, Inc.), Servicing Agreement (Origen Manufactured Housing Contract Trust 2004-B)

Exchange Act Reporting. ~~(a)~~ The Indenture Trustee and the ~~Master~~ Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the ~~Trust's satisfying~~ satisfaction of the Depositor’s reporting requirements under the Exchange ~~Act~~Act with respect to the Issuer. ~~The~~ So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall ~~prepare~~ promptly notify the Depositor, and, in the case of an event reportable on ~~behalf~~ the Form 8-K, not later than two (2) Business Days after its occurrence, of any event reportable on the Exchange Act Reports of which such Person (or in the case of the Indenture Trustee, a Trust ~~any Forms 8-K~~ Officer of such Person) has knowledge. In addition, if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and ~~10-K customary for similar securities~~ the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as ~~required~~ may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the ~~Rules~~ extent such Person is a party (and ~~Regulations~~ the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in XXXXX-compatible form. Each of the ~~Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf~~ acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor ~~or Issuer~~ in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB and related rules and regulations. Without limiting the generality of the foregoing, so long as the Depositor is required to file Exchange Act Reports: (~~or such other entity). The Depositor and the Issuer hereby grant to~~ a) No later than each Determination Date, each of the Indenture Trustee ~~a limited power~~ and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of ~~attorney to execute~~ any Form 810-~~K and file each~~ D Disclosure Item with respect to such ~~document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of~~ Person (~~i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or in the ~~Indenture to the contrary, the Master Servicer, and not~~ case of the Indenture Trustee, ~~shall be responsible for executing each~~ a Trust Officer of such Person), together with a description of any such Form 10-~~K filed on behalf~~ D Disclosure Item in form and substance reasonably acceptable to the Depositor. In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the ~~Trust~~Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be provided concurrently with the statements to Noteholders pursuant to Section 5.06, commencing with the first such report due not less than five (5) Business Days following such request. (b) Each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two (2) Business Days after its occurrence, of any Form 8-K ~~shall be filed by~~ Reportable Event of which such Person (or in the case of the Indenture Trustee, a Trust Officer of such Person) has actual knowledge. Each Person, other than the Indenture Trustee ~~within 15 days after each Distribution Date~~as set forth above, ~~with a copy~~ shall be deemed to have actual knowledge of ~~the statement~~ any such event to the ~~Certificateholders for~~ extent that it relates to such ~~Distribution Date as an exhibit thereto. Prior~~ Person or any action or failure to act by such Person. (c) No later than March ~~30th~~ 15 of each ~~year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~year, commencing in 2015, the Indenture Trustee and the Servicer shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ notify the Depositor of any Form 10-K ~~and provide the Master Servicer~~ Disclosure Item, together with ~~the Form 10-K no later than March 20th~~ a description of ~~each year. The Master Servicer shall execute~~ any such Form 10-K ~~upon its receipt~~ Disclosure Item in form and substance reasonably acceptable to the Depositor. If any of the Item 1119 Parties have changed since the Closing Date, no later than February 1 of each year, commencing in 2015, the Depositor shall provide ~~the original~~ each of ~~such executed Form 10-K to~~ the Indenture Trustee ~~no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16~~ and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file Servicer with an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives updated list of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K)Item 1119 Parties. (d) ~~In addition~~On or before March 15 of each calendar year, commencing in 2015: (i) The Indenture Trustee shall deliver to the Depositor and the Servicer the Servicing Criteria Assessment. Such report shall be signed by an authorized officer of the Indenture Trustee and shall ~~indemnify and hold harmless~~ at a minimum address each of the ~~Master Servicer and~~ servicing criteria set forth in Item 1122(d) of Regulation AB delivered to the Depositor concurrently with the execution of this Agreement (provided that such certification may be revised after the date of this Agreement as agreed by the Depositor and ~~their officers, directors and Affiliates~~ the Indenture Trustee to reflect any guidance with respect to such criteria from ~~and against~~ the Commission). To the extent any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless Servicing Criteria are not applicable to the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon with respect to asset-backed securities transactions taken as a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then whole involving the Indenture Trustee and that are backed by the same asset type backing the Notes, such report shall include such a statement to that effect. The Indenture Trustee acknowledges and agrees that ~~it shall contribute to~~ the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand Depositor and the ~~Indenture Trustee on~~ Servicer with respect to its duties as the ~~other in connection with a breach~~ Certifying Person, and each of their respective officers and directors shall be entitled to rely upon each such servicing criteria assessment and the ~~Indenture Trustee's obligations under this~~ attestation delivered pursuant to Section ~~4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and~~ 4.11. (ii) ~~the indemnification provided for herein is unavailable or insufficient to hold harmless the~~ The Indenture ~~Trustee, then the Master Servicer agrees that it~~ Trustee shall ~~contribute~~ deliver to the ~~amount paid or payable~~ Depositor and the Servicer a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee ~~as a result~~ and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 13a-18 and 15d-18 of the ~~losses~~Exchange Act (or any successor provisions), ~~claims~~Rules 1-02(a)(3) and 2-02(g) of Regulation S-X (or any successor provisions) under the Securities Act and the Exchange Act, ~~damages or liabilities of~~ including, that, in the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language. (iii) In the event the Indenture Trustee in is terminated or resigns during the term of this Agreement, such ~~proportion as is appropriate~~ Person shall provide the documents and information pursuant to ~~reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under~~ this Section ~~4.06~~ with respect to the period of time it was subject to this Agreement or provided services with respect to the Issuer or the ~~Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~Receivables. (e) In The Indenture Trustee represents that: (i) there are no affiliations relating to the ~~event the Commission permits separate or split certifications to be made~~ Indenture Trustee with respect to ~~the items currently contained in the Certification,~~ any Item 1119 Party; (ii) there are no relationships or transactions with respect to any Item 1119 Party and the Indenture Trustee ~~shall provide a certification~~ that are outside the ordinary course of business or on terms other than would be obtained in an arm’s-length transaction with ~~respect to items 1 and 2 and~~ an unrelated third party, apart from the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of transactions contemplated under the Basic Documents, and that are material to the ~~provisions~~ investors’ understanding of ~~this Section 4.06 may be amended by~~ the ~~Master Servicer~~Notes; and (iii) no litigation is pending or, to the ~~Issuer and~~ best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee ~~without~~ that, if determined adversely to the ~~consent~~ Indenture Trustee, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of ~~the Securityholders. (g) Prior to January 30th of the first year in which~~ the Indenture Trustee ~~is able~~ to ~~do so~~ perform its obligations under ~~applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust~~this Agreement.

Appears in 3 contracts

Samples: Sale and Servicing Agreement (California Republic Funding LLC), Sale and Servicing Agreement (California Republic Funding LLC), Sale and Servicing Agreement (California Republic Funding LLC)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K K, 10-D and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) ~~Each Form 8-K shall be filed by the Indenture Trustee within~~ Within 15 days after each Distribution Date, the Indenture Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System ("EDGAR"), a Distribution Report on Form 10-D (which shall, if applicablx, xxovide the information required by each of the items set forth in Part II thereof) with a copy of the monthly statement to be furnished by the ~~Certificateholders~~ Indenture Trustee to the Noteholders for such Distribution Date and detailing all data elements specified in Item 1121(a) of Regulation AB as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, ; provided that the Indenture Trustee shall ~~not undertake an analysis~~ have received no later than 10 days prior to the date such Distribution Report on Form 10-D is required to be filed, the following information: (A) Notice of any ~~accountant's~~ material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time from the Master Servicer; (B) Notice of any new issuance of asset-backed securities backed by the same asset pool, any pool asset changes, such as Mortgage Loan substitutions and repurchases, and cash flows available for future purchases, if applicable, from the Depositor, the Seller or Master Servicer; (C) A brief description of any legal proceedings pending, including proceedings known to be contemplated by governmental authorities, against the Depositor, the Seller and the Master Servicer or of which any property of the foregoing is the subject, that is material to Noteholders from each of the Depositor, the Seller and the Master Servicer if applicable; (D) The information required by Item 2 of Part II of Form 10-Q regarding any sale of securities that are either backed by the same asset pool or are otherwise issued by the issuer, regardless of whether the transaction was registered under the Securities Act of 1933 during the period covered by the report ~~attached as an exhibit~~ from the Depositor; (E) The information required by Item 3 of Part II of Form 10-Q with respect to defaults upon the senior securities during the period covered by the report, from the Depositor; (F) Any information required to be disclosed in a report on Form 8-K during the period covered by the report on the Form 10-D, but not reported, whether or not otherwise required by the Form 10-D from the Depositor and the Master Servicer; and (G) Any exhibits to the Form 10-K)D from the Depositor. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Servicing Agreement (Park Place Securities, Inc.), Servicing Agreement (Argent Securities Inc), Servicing Agreement (Ameriquest Mortgage Securities Inc)

Exchange Act Reporting. (a) ~~The Indenture Trustee~~ (i) Unless and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunderuntil a Form 15 Suspension Notice has been filed pursuant to Section 4.02(a)(iii) below, ~~and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and~~ within 15 days after each Payment Date, the Indenture Trustee ~~shall~~ shall, in accordance with industry standards, file (with the Commission via the ~~Commission's~~ Electronic Data Gathering and Retrieval ~~System) such forms~~ System (“XXXXX”), a distribution report on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be filed~~ D, signed by the ~~Indenture Trustee within 15 days after each Distribution Date~~Servicer, with a copy of the monthly statement to ~~the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may~~ be ~~required or permitted~~ furnished by ~~the Exchange Act and the Rules and Regulations of the Commission),~~ the Indenture Trustee ~~shall file a~~ to the Noteholders for such Payment Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-K, D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in ~~substance~~ Exhibit I as ~~required by applicable law or applicable Commission staff's interpretations~~the responsible entity for providing that information. The Indenture Trustee ~~shall prepare~~ will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 D Disclosure and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such ~~periodic reports~~ Form 10-D resulting from or relating to the Indenture Trustee's ’s inability or failure to obtain any information ~~not resulting~~ in a timely manner from ~~its own negligence or willful misconduct. The~~ the party responsible for delivery of such Additional Form 10-~~K shall also include a certification~~ D Disclosure. Within 5 calendar days after the related Determination Date, each entity that is indicated in Exhibit I as the ~~form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which~~ responsible entity for providing Additional Form 10-D Disclosure shall be ~~signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition,~~ required to provide to the Indenture Trustee ~~shall sign a certification (~~and the Depositor, to the extent known with respect to themselves, in an XXXXX compatible format, clearly identifying which item of Form 10-D the ~~form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers~~information relates to, ~~directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided~~any Additional Form 10-D Disclosure, ~~however, that the~~ if applicable. The Indenture Trustee shall ~~not undertake an analysis of any accountant's report attached as an exhibit~~ compile the information provided to it, prepare the Form 10-~~K).~~ D and no later than 5 calendar days prior to the 15th day after the related Payment Date forward the Form 10-D to the Depositor for verification with a copy to the Sponsor. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. An officer of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (dwith an original executed hard copy to follow by overnight mail) ~~In addition~~to the Indenture Trustee. For administrative convenience, ~~(i)~~ the Servicer may deliver executed signature pages to the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable be held by the Indenture Trustee as in escrow and attached to a ~~result of~~ Form 10-D only upon the ~~losses, claims, damages or liabilities of~~ Servicer’s electronic notification to the Indenture Trustee in authorizing such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithattachment. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare Certificate Administrator shall, on behalf of the Company and in respect of the Trust Fund, sign and cause to be filed with the Commission any ~~Forms 8-K and 10-K customary for similar securities as~~ periodic reports required by to be filed under the provisions of the Exchange ~~Act~~ Act, and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission ~~thereunder~~thereunder including, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms without limitation, reports on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, ~~in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the~~ Form 10-K D and ~~provide the Master Servicer~~ Form 8-K. In connection with the ~~Form 10-K no later than March 20th~~ preparation and filing of such periodic reports, the Trustee shall timely provide to the Certificate Administrator (i) a list of Certificateholders as shown on the Certificate Register as of the end of each calendar year~~. The Master Servicer shall execute such Form 10-K upon its receipt~~ , (ii) copies of all pleadings, other legal process and ~~shall provide~~ any other documents relating to any claims, charges or complaints involving the ~~original~~ Trustee, as trustee hereunder, or the Trust Fund that are received by the Trustee, (iii) notice of ~~such executed Form 10-K~~ all matters that, to the ~~Indenture~~ actual knowledge of a Responsible Officer of the Trustee, have been submitted to a vote of the Certificateholders, other than those matters that have been submitted to a vote of the Certificateholders at the request of the Company or the Certificate Administrator, and (iv) notice of any failure of the Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to make any distribution to the ~~extent they have been timely delivered to~~ Certificateholders. Neither the ~~Indenture Trustee. If they are not so timely delivered,~~ Certificate Administrator nor the ~~Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture~~ Trustee shall have no any liability with respect to ~~any~~ the Certificate Administrator's failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Certificate Administrator's inability or failure to obtain any information not resulting from ~~its~~ the Certificate Administrator's own negligence or willful misconduct~~. The~~ . (b) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall ~~also include a certification~~ include, with respect to the Certificates relating to such 10-K: (i) A certification, signed by the senior officer in charge of the servicing functions of the Certificate Administrator, in the form ~~attached hereto as Exhibit C-1~~ required or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by the senior officer of the Master Servicer in charge of securitization~~. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) A report regarding its assessment of compliance during the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct preceding calendar year with all applicable servicing criteria set forth in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the relevant Commission ~~permits separate or split certifications to be made~~ regulations with respect to mortgage-backed securities transactions taken as a whole involving the ~~items currently contained~~ Certificate Administrator that are backed by the same types of assets as those backing the certificates, as well as similar reports on assessment of compliance received from other parties participating in the ~~Certification~~servicing function as required by relevant Commission regulations, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, as described in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-KItem 1122(a). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 3 contracts

Samples: Trust Agreement (Residential Asset Securities Corp), Trust Agreement (Residential Asset Securities Corp), Trust Agreement (Residential Accredit Loans Inc)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee Administrator shall prepare or cause to be prepared on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Administrator shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the ~~Indenture Trustee~~ Administrator shall file or cause to be filed (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the ~~Indenture Trustee~~ Administrator a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture Trustee~~ Servicer from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Administrator, and not the ~~Indenture Trustee~~Servicer, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture Trustee~~ Administrator or its delegatee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), beginning in 2005, the ~~Indenture Trustee~~ Administrator shall file (or cause to be filed) a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the ~~Master~~ Servicer's annual statement of compliance described under Section ~~3.16~~ 3.15 and the accountant's report described under Section ~~3.17~~3.16, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Administrator shall file (or cause to be filed) an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Administrator. The ~~Indenture Trustee~~ Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Administrator's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission,~~ which shall be signed by the senior officer of the ~~Master Servicer in charge of securitization~~Administrator. (c) ~~In addition~~Upon any filing with the Securities and Exchange Commission, the ~~Indenture Trustee~~ Administrator shall ~~sign~~ promptly deliver to the Issuer a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~executed report, statement or information. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Administrator shall file ~~with the Commission~~ (or cause to be filed) a Form ~~15D~~ 15 Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Servicing Agreement (Citigroup Mortgageln Tr Origen Manu Hous Cont Tr NTS Ser 200), Servicing Agreement (Citigroup Mortgageln Tr Origen Manu Hous Cont Tr NTS Ser 200)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the Depositor~~ Company in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the ~~Depositor or Issuer~~ Company (or such other entity). The ~~Depositor and the Issuer~~ Company hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the ~~Depositor and the Issuer~~Company. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture~~ Trustee from the ~~Depositor and the Issuer~~ Company of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ L-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the ~~Indenture~~ Trustee shall indemnify and hold harmless the Master Servicer and the ~~Depositor~~ Company and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the ~~Indenture~~ Trustee, the Master Servicer, the ~~Issuer~~ Company and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the ~~Indenture~~ Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the ~~Indenture~~ Trustee on the other in connection with a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Indenture~~ Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the ~~Indenture~~ Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit ~~C-1~~L-1, or other form as indicated by the Commission for this purpose. In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-3~~L-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic Documents~~Agreement, the provisions of this Section ~~4.06~~ 3.25 may be amended by the Master Servicer, the ~~Issuer~~ Company and the ~~Indenture~~ Trustee without the consent of the ~~Securityholders~~Certificateholders. (g) Prior to January 30th of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp Mortgage Pass-Through Certificates, Series 2004-4), Pooling and Servicing Agreement (Impac Secured Assets Corp Mor Pass Thru Cert Ser 2003-3)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in EDGAR-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent axx xxe Depositor, at the Depositor's expense, and any necessary conversion to EDGAR-compatible format will be at the Depositor's expense. Prior to ~~March 30th~~ Maxxx 00th of each ~~year~~ year, commencing in 2006 (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Sarbanes-Oxley Certification required to be included therewith, as descxxxxx xx xxxxxraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first -205- year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include any certification (the "Sarbanes-Oxley Certification") required to be included therewith pursuaxx xx xxx Xxxxanes-Oxley Act of 2002 and the rules and regulations of the Commissxxx xxxxxxxxxxd thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Sarbanes-Oxley Certification shall be provided to the Rating Agencies. Xxx Xxxxxxx Xxrvicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Sarbanes-Oxley Certification (the "Certifying Person") a certification (xxxx, x "Xxxxormance Certification"), in the form attached hereto as Exhibit ~~C-1~~ CC, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the ~~"Certification"~~Certifying Person is an individual), and such entity's officers, directors and Affiliates (collectively with the Certifying Person, "Certification Parties") can rely. In addition, in ~~compliance~~ the event that any Serviced Companion Mortgage Loan is deposited into a commercial mortgage securitization, each Performing Party shall provide to the Person who signs the Sarbanes-Oxley Certification with ~~Rules 13a-14~~ respect to such commercial mortgage sxxxxxxxxxxxxx a Performance Certification (which shall address the matters contained in the Performance Certification, but solely with respect to the related Serviced Companion Mortgage Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and ~~15d-14 under~~ such entity's officers, directors and Affiliates can rely. The Master Servicer shall serve as the ~~Exchange Act and any additional directives~~ Certifying Person on behalf of the ~~Commission~~Trust. In addition, ~~which~~ if the Performing Party is the Special Servicer, such Performing Party shall ~~be signed by~~ execute a reasonable reliance certificate to enable the ~~senior officer~~ Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the ~~Master Servicer~~ certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in ~~charge~~ Section 9.19. In the event any Performing Party is terminated or resigns pursuant to the terms of ~~securitization~~this Agreement, such Performing Party shall provide a Performance Certification to the Certifying Person pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses~~Form 10-K or any Sarbanes-Oxley Certification. The failure of any party to this Agreemenx xxxxx xxxx xhe Master Servicer, ~~damages~~or any of such party's officers, ~~penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ to execute any Form 10-K or ~~based upon~~ any Sarbanes-Oxley Certification shall not be regarded as a breach ~~of the Master Servicer's~~ by such xxxxx xx xxx xf its obligations under this Agreement. This Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Sarbanes-Oxley Act of 2002 or for purposes of designating the Certifyinx Xxxxxx xxxxxut any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top18), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top18)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff's ’s interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section ~~3.16~~ 3.20 and the accountant's ’s report described under Section ~~3.17~~3.21, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "“Certification"”)~~, in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by the senior officer of the ~~Master Servicer~~ Depositor in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates regarding certain aspects ~~of items 1 through 3~~ of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of ~~any~~ the accountant's ’s report attached as an exhibit to the Form 10-K). . The Indenture Trustee’s certification shall be delivered to the Depositor by no later than March 19th of each year (dor if such day is not a Business Day, the immediately preceding Business Day) and the Depositor shall deliver the Certification to the Indenture Trustee for filing no later than March 20th of each year (or if such day is not a Business Day, the immediately preceding Business Day). In addition, ~~(i)~~ the Indenture Trustee shall indemnify and hold harmless the ~~Master Servicer and the~~ Depositor and ~~their~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's ’s obligations under this Section ~~4.06 caused by~~ 4.02(c) or the Indenture Trustee's ’s negligence, bad faith or willful misconduct in connection therewith~~, and (ii) the Master Servicer~~ . The Depositor shall indemnify and hold harmless the Indenture ~~Trustee, the Master Servicer, the Issuer~~ Trustee and ~~their respective~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Master Servicer's~~ Depositor’s obligations under this Section ~~4.06~~ 4.02 or the ~~Master Servicer's~~ Depositor’s negligence, bad faith or willful misconduct in connection therewith. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Master Servicer~~Depositor or the Indenture Trustee, as applicable, then the other party, in connection with a breach of its respective obligations under this Section 4.02 with respect to the Depositor or Section 4.02(c) with respect to the Indenture Trustee or its respective negligence, bad faith or willful misconduct in connection therewith, agrees that it shall contribute to the amount paid or payable by the ~~Master Servicer~~ other party as a result of the losses, claims, damages or liabilities of the ~~Master Servicer~~ other party in such proportion as is appropriate to reflect the relative fault and the relative benefit of the ~~Master Servicer~~ Depositor on the one hand and the Indenture Trustee on the ~~other in connection~~ other. (d) Upon any filing with ~~a breach of~~ the ~~Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence~~Securities and Exchange Commission, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as shall promptly deliver to the Depositor a ~~result~~ copy of ~~the losses~~any executed report, ~~claims, damages~~ statement or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithinformation. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file ~~with the Commission~~ a Form ~~15D~~ 15 Suspension Notification with respect to the Trust. (f) To the extent that, following the Closing Date, the Depositor certifies to the Indenture Trustee that reports and certifications differing from those required under this Section 4.06 comply with the reporting requirements under the Exchange Act, the Indenture Trustee hereby agrees that it will reasonably cooperate to amend the provisions of this Section 4.02 (in accordance with Section 7.01) in order to comply with such amended reporting requirements and such amendment of this Section 4.

Appears in 2 contracts

Samples: Servicing Agreement (New Century Home Equity Loan Trust 2005-4), Servicing Agreement (New Century Home Equity Loan Trust 2005-3)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in Xxxxx-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. The ~~Indenture Trustee~~ Paying Agent shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from ~~or relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Paying Agent is able to do so under applicable law, the ~~Indenture Trustee~~ Paying Agent shall file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Trust under the Exchange Act.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Ser 2003 Top9), Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Ser 2003 Top9)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report -205- described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in the form attached hereto as Exhibit ~~C-1~~ CC, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the ~~"Certification"~~Certifying Person is an individual), and such entity's officers, directors and Affiliates (collectively with the Certifying Person, "Certification Parties") can rely. In addition, in ~~compliance~~ the event that any Serviced Companion Mortgage Loan is deposited into a commercial mortgage securitization, each Performing Party shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with ~~Rules 13a-14~~ respect to such commercial mortgage securitization a Performance Certification (which shall address the matters contained in the Performance Certification, but solely with respect to the related Serviced Companion Mortgage Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and ~~15d-14 under~~ such entity's officers, directors and Affiliates can rely. The Master Servicer shall serve as the ~~Exchange Act and any additional directives~~ Certifying Person on behalf of the ~~Commission~~Trust. In addition, ~~which~~ if the Performing Party is the Special Servicer, such Performing Party shall ~~be signed by~~ execute a reasonable reliance certificate to enable the ~~senior officer~~ Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the ~~Master Servicer~~ certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in ~~charge~~ Section 9.19. In the event any Performing Party is terminated or resigns pursuant to the terms of ~~securitization~~this Agreement, such Performing Party shall provide a Performance Certification to the Certifying Person pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and~~ Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless than the Master Servicer, ~~then the Indenture Trustee agrees that it~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~contribute to the amount paid or payable by the Master Servicer~~ not be regarded as a ~~result~~ breach by such party of ~~the losses, claims, damages or liabilities~~ any of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's its obligations under this Agreement. This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Paying Agent is able to do so under applicable law, the ~~Indenture Trustee~~ Paying Agent shall file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Trust under the Exchange Act.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 HQ4), Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Trust 2003-Top 11)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K K, 10-D and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) ~~Each Form 8-K shall be filed by the Indenture Trustee within~~ Within 15 days after each Distribution Date, the Indenture Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System ("EXXXX"), a Distribution Report on Form 10-D (which shall, if applicable, provide the information required by each of the items set forth in Part II thereof) with a copy of the monthly statement to be furnished by the ~~Certificateholders~~ Indenture Trustee to the Noteholders for such Distribution Date and detailing all data elements specified in Item 1121(a) of Regulation AB as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, ; provided that the Indenture Trustee shall ~~not undertake an analysis~~ have received no later than 10 days prior to the date such Distribution Report on Form 10-D is required to be filed, the following information: (A) Notice of any ~~accountant's~~ material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time from the Master Servicer; (B) Notice of any new issuance of asset-backed securities backed by the same asset pool, any pool asset changes, such as Mortgage Loan substitutions and repurchases, and cash flows available for future purchases, if applicable, from the Depositor, the Seller or Master Servicer; (C) A brief description of any legal proceedings pending, including proceedings known to be contemplated by governmental authorities, against the Depositor, the Seller and the Master Servicer or of which any property of the foregoing is the subject, that is material to Noteholders from each of the Depositor, the Seller and the Master Servicer if applicable; (D) The information required by Item 2 of Part II of Form 10-Q regarding any sale of securities that are either backed by the same asset pool or are otherwise issued by the issuer, regardless of whether the transaction was registered under the Securities Act of 1933 during the period covered by the report ~~attached as an exhibit~~ from the Depositor; (E) The information required by Item 3 of Part II of Form 10-Q with respect to defaults upon the senior securities during the period covered by the report, from the Depositor; (F) Any information required to be disclosed in a report on Form 8-K during the period covered by the report on the Form 10-D, but not reported, whether or not otherwise required by the Form 10-D from the Depositor and the Master Servicer; and (G) Any exhibits to the Form 10-K)D from the Depositor. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Servicing Agreement (New Century Mortgage Securities Inc), Servicing Agreement (Boardwalk Mortgage Securities Inc.)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each ~~year~~ year, commencing in 2006 (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in the form attached hereto as Exhibit ~~C-1~~ CC, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the ~~"Certification"~~Certifying Person is an individual), and such entity's officers, directors and Affiliates (collectively with the Certifying Person, "Certification Parties") can rely. In addition, in ~~compliance~~ the event that any Serviced Companion Mortgage Loan is deposited into a commercial mortgage securitization, each Performing Party shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with ~~Rules 13a-14~~ respect to such commercial mortgage securitization a Performance Certification (which shall address the matters contained in the Performance Certification, but solely with respect to the related Serviced Companion Mortgage Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and ~~15d-14 under~~ such entity's officers, directors and Affiliates can rely. The Master Servicer shall serve as the ~~Exchange Act and any additional directives~~ Certifying Person on behalf of the ~~Commission~~Trust. In addition, ~~which~~ if the Performing Party is the Special Servicer, such Performing Party shall ~~be signed by~~ execute a reasonable reliance certificate to enable the ~~senior officer~~ Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the ~~Master Servicer~~ certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in ~~charge~~ Section 9.19. In the event any Performing Party is terminated or resigns pursuant to the terms of ~~securitization~~this Agreement, such Performing Party shall provide a Performance Certification to the Certifying Person pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and~~ Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless than the Master Servicer, ~~then the Indenture Trustee agrees that it~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~contribute to the amount paid or payable by the Master Servicer~~ not be regarded as a ~~result~~ breach by such party of ~~the losses, claims, damages or liabilities~~ any of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's its obligations under this Agreement. This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Distribution Report on Form 10-D, signed by the Master Servicer, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution Date and detailing all data elements specified in Item 1121(a) of Regulation AB as part of the monthly statement; provided that the Trustee shall have received no later than 2 days prior to the date such Distribution Report on Form 10-D is required to be filed, all information required to be provided to the Trustee as described in clause (a)(iv) below. (ii) The ~~Indenture~~ Trustee will prepare and file Current Reports on Form 8-K in respect of the Trust, signed by the Master Servicer, as and when required; provided, that, the Trustee shall have received no later than one Business Day prior to the filing deadline for such Current Report, all information, data, and exhibits required to be provided or filed with such Current Report and required to be provided to the Trustee as described in clause (a)(iv) below. (iii) Prior to January 30 in each year commencing in 2007, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. Prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, the Master Servicer shall provide the Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any subservicer or subcontractor, if required to be filed). Prior to (x) March 31, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 31 of each year thereafter, the Trustee shall, subject to subsection (d) below, file a Form 10-K, in substance conforming to industry standards, with respect to the Trust Fund. Such Form 10-K shall include the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any subservicer or subcontractor, if required to be filed) and with respect to the Trustee and the Custodian, and the Form 10-K certification signed by the Depositor; provided that the Trustee shall have received no later than March 15 of each calendar year prior to the filing deadline for the Form 10-K all information, data and exhibits required to be provided or filed with such Form 10-K and required to be provided to the Trustee as described in clause (a)(iv) below. (iv) As to each item of information required to be included in any Form 10-D, Form 8-K or Form 10-K, the Trustee's obligation to include the information in the applicable report is subject to receipt from the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, as and when required as described above. Each of the Master Servicer, Sponsor and Depositor hereby agree to notify and provide to the Trustee all information that is required to be included in any Form 10-D, Form 8-K or Form 10-K, with respect to which that entity is indicated in Exhibit O as the responsible party for providing that information. The Swap Provider will be obligated pursuant to the Swap Agreement to provide to the Trustee any information that may be required to be included in any Form 10-D, Form 8-K or Form 10-K. The Trustee shall be responsible for determining the significance percentage (as defined in Item 1115 of Regulation AB) of the Swap Provider at any time. The Master Servicer shall be responsible for determining the pool concentration applicable to any subservicer or originator at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 10-D, 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor ~~or Issuer~~ (or such other entity). The Depositor ~~and the Issuer~~ hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to ~~execute any~~ sign each Form 10-D, Form 8-K and ~~file each such document~~ Form 10-K on behalf of the ~~Depositor and the Issuer~~Depositor. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture Trustee~~ Master Servicer from the Depositor ~~and the Issuer~~ of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) In connection with the filing of any 10-K hereunder, the Trustee shall sign a certification (a “Form of Back-Up Certification for Form 10-K Certificate,” substantially in the form attached hereto as Exhibit L-4) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of the Form 10-K certification signed by the Master Servicer, provided, however, that the Trustee shall not undertake an analysis of any accountant’s report attached as an exhibit to the Form 10-K). (c) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's ’s report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ L-1 (the "“Certification"”), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (cd) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (de) In addition, (i) the ~~Indenture~~ Trustee shall indemnify and hold harmless the Master Servicer and the ~~Depositor~~ Company and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture~~ Trustee's ’s obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's ’s negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the ~~Indenture~~ Trustee, the Master Servicer, the ~~Issuer~~ Company and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's ’s obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the ~~Indenture~~ Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the ~~Indenture~~ Trustee on the other in connection with a breach of the ~~Indenture~~ Trustee's ’s obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's ’s negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Indenture~~ Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's ’s obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. (ef) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the ~~Indenture~~ Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit ~~C-1~~L-1, or other form as indicated by the Commission for this purpose. In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-3~~L-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (fg) Notwithstanding any other provision of the ~~Basic Documents~~Agreement, the provisions of this Section ~~4.06~~ 3.25 may be amended by the Master Servicer, the ~~Issuer~~ Company and the ~~Indenture~~ Trustee without the consent of the ~~Securityholders~~Certificateholders. (gh) Prior to January 30th of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K K, 10-D and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) ~~Each Form 8-K shall be filed by the Indenture Trustee within~~ Within 15 days after each Distribution Date, the Indenture Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a Distribution Report on Form 10-D (which shall, if applicable, provide the information required by each of the items set forth in Part II thereof) with a copy of the monthly statement to be furnished by the ~~Certificateholders~~ Indenture Trustee to the Noteholders for such Distribution Date and detailing all data elements specified in Item 1121(a) of Regulation AB as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, ; provided that the Indenture Trustee shall ~~not undertake an analysis~~ have received no later than 10 days prior to the date such Distribution Report on Form 10-D is required to be filed, the following information: (A) Notice of any ~~accountant's~~ material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time from the Master Servicer; (B) Notice of any new issuance of asset-backed securities backed by the same asset pool, any pool asset changes, such as Mortgage Loan substitutions and repurchases, and cash flows available for future purchases, if applicable, from the Depositor, the Seller or Master Servicer; (C) A brief description of any legal proceedings pending, including proceedings known to be contemplated by governmental authorities, against the Depositor, the Seller and the Master Servicer or of which any property of the foregoing is the subject, that is material to Noteholders from each of the Depositor, the Seller and the Master Servicer if applicable; (D) The information required by Item 2 of Part II of Form 10-Q regarding any sale of securities that are either backed by the same asset pool or are otherwise issued by the issuer, regardless of whether the transaction was registered under the Securities Act of 1933 during the period covered by the report ~~attached as an exhibit~~ from the Depositor; (E) The information required by Item 3 of Part II of Form 10-Q with respect to defaults upon the senior securities during the period covered by the report, from the Depositor; (F) Any information required to be disclosed in a report on Form 8-K during the period covered by the report on the Form 10-D, but not reported, whether or not otherwise required by the Form 10-D from the Depositor and the Master Servicer; and (G) Any exhibits to the Form 10-K)D from the Depositor. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Servicing Agreement (New Century Mortgage Securities Inc), Servicing Agreement (Citigroup Mortgage Loan Trust Inc)

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Impac Secured Assets Trust 2007-3), Pooling and Servicing Agreement (Impac Secured Assets Trust 2007-3)

Exchange Act Reporting. ~~(a)~~ The Indenture Trustee and the ~~Master~~ Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the ~~Trust's satisfying~~ satisfaction of the Depositor’s reporting requirements under the Exchange ~~Act~~Act with respect to the Issuer. ~~The~~ So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall ~~prepare~~ promptly notify the Depositor, and, in the case of an event reportable on ~~behalf~~ the Form 8-K, not later than two Business Days after its occurrence, of any event reportable on the Exchange Act Reports of which such Person (or in the case of the ~~Trust any Forms 8-K~~ Indenture Trustee, a Responsible Officer of such Person) has knowledge. In addition, if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and ~~10-K customary for similar securities~~ the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as ~~required~~ may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the ~~Rules~~ extent such Person is a party (and ~~Regulations~~ the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in XXXXX-compatible form. Each of the ~~Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf~~ acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor ~~or Issuer~~ in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB and related rules and regulations. Without limiting the generality of the foregoing, so long as the Depositor is required to file Exchange Act Reports: (~~or such other entity). The Depositor and the Issuer hereby grant to~~ a) No later than each Determination Date, each of the Indenture Trustee ~~a limited power~~ and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of ~~attorney to execute~~ any Form 810-~~K and file each~~ D Disclosure Item with respect to such ~~document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of~~ Person (~~i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or in the ~~Indenture to the contrary, the Master Servicer, and not~~ case of the Indenture Trustee, ~~shall be responsible for executing each~~ a Responsible Officer of such Person), together with a description of any such Form 10-~~K filed on behalf~~ D Disclosure Item in form and substance reasonably acceptable to the Depositor. In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the ~~Trust~~Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be provided concurrently with the statements to Noteholders pursuant to Section 5.06, commencing with the first such report due not less than five (5) Business Days following such request. (b) Each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two (2) Business Days after its occurrence, of any Form 8-K ~~shall be filed by~~ Reportable Event of which such Person (or in the case of the Indenture Trustee, a Responsible Officer of such Person) has actual knowledge. Each Person, other than the Indenture Trustee ~~within 15 days after each Distribution Date~~as set forth above, ~~with a copy~~ shall be deemed to have actual knowledge of ~~the statement~~ any such event to the ~~Certificateholders for~~ extent that it relates to such ~~Distribution Date as an exhibit thereto. Prior~~ Person or any action or failure to act by such Person. (c) No later than March ~~30th~~ 15 of each ~~year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~year, commencing in 2015, the Indenture Trustee and the Servicer shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ notify the Depositor of any Form 10-K ~~and provide the Master Servicer~~ Disclosure Item, together with ~~the Form 10-K no later than March 20th~~ a description of ~~each year. The Master Servicer shall execute~~ any such Form 10-K ~~upon its receipt~~ Disclosure Item in form and substance reasonably acceptable to the Depositor. If any of the Item 1119 Parties have changed since the Closing Date, no later than February 1 of each year, commencing in 2015, the Depositor shall provide ~~the original~~ each of ~~such executed Form 10-K to~~ the Indenture Trustee ~~no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16~~ and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file Servicer with an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives updated list of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K)Item 1119 Parties. (d) ~~In addition~~On or before March 15 of each calendar year, commencing in 2015: (i) The Indenture Trustee shall deliver to the Depositor and the Servicer the Servicing Criteria Assessment. Such report shall be signed by an authorized officer of the Indenture Trustee and shall ~~indemnify and hold harmless~~ at a minimum address each of the ~~Master Servicer and~~ servicing criteria set forth in Item 1122(d) of Regulation AB delivered to the Depositor concurrently with the execution of this Agreement (provided that such certification may be revised after the date of this Agreement as agreed by the Depositor and ~~their officers, directors and Affiliates~~ the Indenture Trustee to reflect any guidance with respect to such criteria from ~~and against~~ the Commission). To the extent any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless Servicing Criteria are not applicable to the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon with respect to asset-backed securities transactions taken as a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then whole involving the Indenture Trustee and that are backed by the same asset type backing the Notes, such report shall include such a statement to that effect. The Indenture Trustee acknowledges and agrees that ~~it shall contribute to~~ the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand Depositor and the ~~Indenture Trustee on~~ Servicer with respect to its duties as the ~~other in connection with a breach~~ Certifying Person, and each of their respective officers and directors shall be entitled to rely upon each such servicing criteria assessment and the ~~Indenture Trustee's obligations under this~~ attestation delivered pursuant to Section ~~4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and~~ 4.11. (ii) ~~the indemnification provided for herein is unavailable or insufficient to hold harmless the~~ The Indenture ~~Trustee, then the Master Servicer agrees that it~~ Trustee shall ~~contribute~~ deliver to the ~~amount paid or payable~~ Depositor and the Servicer a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee ~~as a result~~ and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 13a-18 and 15d-18 of the ~~losses~~Exchange Act (or any successor provisions), ~~claims~~Rules 1-02(a)(3) and 2-02(g) of Regulation S-X (or any successor provisions) under the Securities Act and the Exchange Act, ~~damages or liabilities of~~ including, that, in the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language. (iii) In the event the Indenture Trustee in is terminated or resigns during the term of this Agreement, such ~~proportion as is appropriate~~ Person shall provide the documents and information pursuant to ~~reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under~~ this Section ~~4.06~~ with respect to the period of time it was subject to this Agreement or provided services with respect to the Issuer or the ~~Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~Receivables. (e) In The Indenture Trustee represents that: (i) there are no affiliations relating to the ~~event the Commission permits separate or split certifications to be made~~ Indenture Trustee with respect to ~~the items currently contained in the Certification,~~ any Item 1119 Party; (ii) there are no relationships or transactions with respect to any Item 1119 Party and the Indenture Trustee ~~shall provide a certification~~ that are outside the ordinary course of business or on terms other than would be obtained in an arm’s-length transaction with ~~respect to items 1 and 2 and~~ an unrelated third party, apart from the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of transactions contemplated under the Basic Documents, and that are material to the ~~provisions~~ investors’ understanding of ~~this Section 4.06 may be amended by~~ the ~~Master Servicer~~Notes; and (iii) no litigation is pending or, to the ~~Issuer and~~ best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee ~~without~~ that, if determined adversely to the ~~consent~~ Indenture Trustee, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of ~~the Securityholders. (g) Prior to January 30th of the first year in which~~ the Indenture Trustee ~~is able~~ to ~~do so~~ perform its obligations under ~~applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust~~this Agreement.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (California Republic Funding LLC), Sale and Servicing Agreement (California Republic Funding LLC)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System ("EDGAR"), a Distribution Report on Form 10-D, signed by the Master Servxxxx, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution Date and detailing all data elements specified in Item 1121(a) of Regulation AB as part of the monthly statement; provided that the Trustee shall have received no later than 2 days prior to the date such Distribution Report on Form 10-D is required to be filed, all information required to be provided to the Trustee as described in clause (a)(iv) below. (ii) The ~~Indenture~~ Trustee will prepare and file Current Reports on Form 8-K in respect of the Trust, signed by the Master Servicer, as and when required; provided, that, the Trustee shall have received no later than one Business Day prior to the filing deadline for such Current Report, all information, data, and exhibits required to be provided or filed with such Current Report and required to be provided to the Trustee as described in clause (a)(iv) below. (iii) Prior to January 30 in each year commencing in 2007, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. Prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, the Master Servicer shall provide the Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any subservicer or subcontractor, if required to be filed). Prior to (x) March 31, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 31 of each year thereafter, the Trustee shall, subject to subsection (d) below, file a Form 10-K, in substance conforming to industry standards, with respect to the Trust Fund. Such Form 10-K shall include the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any subservicer or subcontractor, if required to be filed) and with respect to the Trustee and the Custodian, and the Form 10-K certification signed by the Depositor; provided that the Trustee shall have received no later than March 15 of each calendar year prior to the filing deadline for the Form 10-K all information, data and exhibits required to be provided or filed with such Form 10-K and required to be provided to the Trustee as described in clause (a)(iv) below. (iv) As to each item of information required to be included in any Form 10-D, Form 8-K or Form 10-K, the Trustee's obligation to include the information in the applicable report is subject to receipt from the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, as and when required as described above. Each of the Master Servicer, Sponsor and Depositor hereby agree to notify and provide to the Trustee all information that is required to be included in any Form 10-D, Form 8-K or Form 10-K, with respect to which that entity is indicated in Exhibit O as the responsible party for providing that information. The Swap Provider will be obligated pursuant to the Swap Agreement to provide to the Trustee any information that may be required to be included in any Form 10-D, Form 8-K or Form 10-K. The Trustee shall be responsible for determining the significance percentage (as defined in Item 1115 of Regulation AB) of the Swap Provider at any time. The Master Servicer shall be responsible for determining the pool concentration applicable to any subservicer or originator at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee and the Master Servicer shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 10-D, 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor ~~or Issuer~~ (or such other entity). The Depositor ~~and the Issuer~~ hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to ~~execute any~~ sign each Form 10-D, Form 8-K and ~~file each such document~~ Form 10-K on behalf of the ~~Depositor and the Issuer~~Depositor. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture Trustee~~ Master Servicer from the Depositor ~~and the Issuer~~ of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) In connection with the filing of any 10-K hereunder, the Trustee shall sign a certification (a "Form of Back-Up Certification for Form 10-K Certificate," substantially in the form attached hereto as Exhibit L-4) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of the Form 10-K certification signed by the Master Servicer, provided, however, that the Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (c) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ L-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (cd) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (de) In addition, (i) the ~~Indenture~~ Trustee shall indemnify and hold harmless the Master Servicer and the ~~Depositor~~ Company and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the ~~Indenture~~ Trustee, the Master Servicer, the ~~Issuer~~ Company and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the ~~Indenture~~ Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the ~~Indenture~~ Trustee on the other in connection with a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Indenture~~ Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (ef) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the ~~Indenture~~ Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit ~~C-1~~L-1, or other form as indicated by the Commission for this purpose. In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-3~~L-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (fg) Notwithstanding any other provision of the ~~Basic Documents~~Agreement, the provisions of this Section ~~4.06~~ 3.25 may be amended by the Master Servicer, the ~~Issuer~~ Company and the ~~Indenture~~ Trustee without the consent of the ~~Securityholders~~Certificateholders. (gh) Prior to January 30th of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in the form attached hereto as Exhibit ~~C-1~~ CC, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the ~~"Certification"~~Certifying Person is an individual), ~~in compliance~~ and such entity's officers, directors and Affiliates (collectively with ~~Rules 13a-14 and 15d-14 under~~ the ~~Exchange Act and any additional directives~~ Certifying Person, "Certification Parties") can rely. The Master Servicer shall serve as the Certifying Person on behalf of the ~~Commission~~Trust. In addition, ~~which~~ if the Performing Party is the Special Servicer, such Performing Party shall ~~be signed by~~ execute a reasonable reliance certificate to enable the ~~senior officer~~ Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the ~~Master Servicer~~ certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in ~~charge~~ Section 9.19. In the event any Performing Party is terminated or resigns pursuant to the terms of ~~securitization~~this Agreement, such Performing Party shall provide a Performance Certification to the Certifying Person pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and~~ Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless than the Master Servicer, ~~then the Indenture Trustee agrees that it~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~contribute to the amount paid or payable by the Master Servicer~~ not be regarded as a ~~result~~ breach by such party of ~~the losses, claims, damages or liabilities~~ any of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's its obligations under this Agreement. This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mort Sec Tru 2003-Top12), Pooling and Servicing Agreement (Morgan Stan Dean Wit Cap Com Mort Ps THR CRTS Ser 2003-Top13)

Exchange Act Reporting. Section 11.01 Form 10-D Reporting Within 15 days after each Distribution Date (~~a) The Indenture Trustee~~ subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the ~~Master Servicer shall reasonably cooperate with~~ Trust Fund any Form 10-D required by the ~~Issuer~~ Exchange Act, in form and ~~the Depositor in connection with the Trust's satisfying the reporting requirements under~~ substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare on behalf~~ file each Form 10-D with a copy of the ~~Trust any Forms 8-K and~~ related Monthly Statement attached thereto. Any disclosure in addition to the Monthly Statement that is required to be included on Form 10-~~K customary~~ D (“Additional Form 10-D Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for ~~similar securities~~ any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as ~~required by~~ set forth in the next paragraph. As set forth on Exhibit N hereto, within 5 calendar days after the related Distribution Date of each month that the Trust is subject to the Exchange Act reporting requirements, (i) the parties set forth thereon shall be required to provide to the Securities Administrator and the ~~Rules~~ Depositor, to the extent a Responsible Officer of such party has knowledge, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and ~~Regulations~~ such party, a notice in the form of Exhibit R hereto (an “Additional Disclosure Notification”) together with, the form and substance of any Additional Form 10-D Disclosure, if applicable to such party and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the ~~Commission thereunder~~Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D, but no later than the 12th calendar day after the related Distribution Date, the Securities Administrator shall forward electronically a copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) for review. By the 13th calendar day after the related Distribution Date, the Depositor shall notify the Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of any receipt of any written changes or approval from the Depositor by the 13th calendar day after the related Distribution Date, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the Securities Administrator may proceed with the execution and filing of the Form 10-D. A duly authorized officer of the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be~~ D filed by the ~~Indenture Trustee within 15~~ Securities Administrator. Each party to this Agreement acknowledges that the performance by the Securities Administrator and the Master Servicer of its duties under this Section 11.01 related to the timely preparation, execution and filing of Form 10-D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Section 11.01. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, timely execute and/or timely file such Form 10-D, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. Section 11.02 Form 10-K Reporting Within 90 days after the end of each ~~Distribution Date, with a copy~~ fiscal year of the ~~statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (~~Trust or such earlier date as may be required ~~or permitted~~ by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2007, the Securities Administrator shall prepare and ~~the Rules and Regulations~~ file on behalf of the ~~Commission), the Indenture Trustee shall file~~ Trust a Form 10-K, in form and substance as required by ~~applicable law or applicable Commission staff's interpretations~~the Exchange Act. ~~The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute~~ Each such ~~Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such~~ Form 10-K shall include ~~as exhibits~~ the ~~Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Indenture Trustee. If they are not so timely delivered~~Securities Administrator within the applicable time frames set forth in this Agreement and the related Purchase and Servicing Agreement or Servicing Agreement, as applicable, (i) the Item 1123 Certification for each Servicer, each Servicing Function Participant, the ~~Indenture Trustee shall file~~ Master Servicer and the Securities Administrator as described under Section 11.05, (ii)(A) the Assessment of Compliance with servicing criteria for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.06, and (B) if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance is not included as an ~~amended~~ exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the Accountant’s Attestation for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.07, and (B) if any Accountant’s Attestation identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such Accountant’s Attestation is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.08 (provided, however, that the Securities Administrator, in its reasonable discretion, may omit from the Form 10-K, any Assessment of Compliance or Accountant’s Attestation that is not required to be filed with such Form 10-K ~~including such documents as exhibits reasonably promptly after they are delivered~~ pursuant to Regulation AB). Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Indenture Trustee~~following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, no later than March 15 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-K Disclosure, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. After preparing the Form 10-K, but no later than March 23rd of each year, the Securities Administrator shall forward electronically a draft copy of the Form 10-K to the Depositor (provided that such Form 10-K includes any Additional Form 10-K Disclosure) for review. At least four Business Days before the filing deadline, the Depositor shall notify the Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-K. In the absence of any receipt of any written changes or approval from the Depositor by the close of business on the fourth Business Day prior to the 10-K Filing Deadline, the Securities Administrator shall be entitled to assume that such Form 10-K is in final form and the Securities Administrator may proceed with the execution and filing of the Form 10-K. A senior officer of the Master Servicer shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-K filed by the Securities Administrator. The ~~Indenture Trustee~~ parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.02 related to the timely preparation, execution and filing of Form 10-K is contingent upon such parties (and any Servicing Function Participant) strictly observing all applicable deadlines in the performance of their duties under Article XI. Neither the Master Servicer nor the Securities Administrator shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-K, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful ~~misconduct~~ misconduct. Section 11.03 Form 8-K Reporting Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection ~~therewith~~with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. As set forth on Exhibit N hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of a Reportable Event (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R attached hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. After preparing the Form 8-K, the Securities Administrator shall forward electronically a draft copy of the Form 8-K to the Depositor for review. Promptly upon receipt of such copy, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall notify the Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 8-K. In the absence of any receipt of any written changes or approval from the Depositor, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with the execution and filing of the Form 8-K. A duly authorized officer of the Master Servicer shall ~~indemnify and hold harmless the Indenture Trustee~~sign each Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the ~~Master Servicer~~Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the ~~Issuer~~ Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.03 related to the timely preparation, execution and filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their ~~respective officers~~duties under this Section 11.03. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, ~~directors and Affiliates from and against any losses~~expense, ~~damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Master Servicer's obligations under this Section 4.06~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or ~~the Master Servicer's~~ file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Alternative Loan Trust 2006-A2), Pooling and Servicing Agreement (J.P. Morgan Alternative Loan Trust 2006-A2)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2006-5 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in EDGXX-xxmpatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on EDGXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2006-5 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in EDGXX-xxmpatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on EDGXX (xv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (~~g) Prior~~ i)On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-5), Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-5)

Exchange Act Reporting. (a) The ~~Indenture Trustee and the~~ Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereundershall, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and in respect of the ~~Issuer. Such power~~ Trust Estate, sign and cause to be filed with the Commission any periodic reports required to be filed under the provisions of ~~attorney~~ the Exchange Act, and the rules and regulations of the Commission thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with the preparation and filing of such periodic reports, the Indenture Trustee shall ~~continue until~~ timely provide to the ~~earlier~~ Master Servicer (I) a list of Securityholders as shown on the Register as of the end of each calendar year, (iII) ~~receipt~~ copies of all pleadings, other legal process and any other documents relating to any claims, charges or complaints involving the Indenture Trustee, as trustee hereunder, or the Trust Estate that are received by the Indenture ~~Trustee from~~ Trustee, (III) notice of all matters that, to the actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted to a vote of the Securityholders, other than those matters that have been submitted to a vote of the Securityholders at the request of the Depositor ~~and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or ~~in the Indenture to the contrary,~~ the Master Servicer, and ~~not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf~~ (IV) notice of ~~the Trust. (b) Each Form 8-K shall be filed by~~ any failure of the Indenture Trustee ~~within 15 days after each Distribution Date, with a copy of the statement~~ to make any distribution to the ~~Certificateholders for such Distribution Date~~ Securityholders as ~~an exhibit thereto~~required pursuant to this Agreement. ~~Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ Neither the ~~Exchange Act and the Rules and Regulations of the Commission),~~ Master Servicer nor the Indenture Trustee shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer~~ have any liability with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to ~~the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits~~ the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Master Servicer's inability or failure to obtain any information not resulting from ~~its~~ the Master Servicer's own negligence or willful misconduct~~. The~~ (b) Any Form 10-K filed with the Commission in connection with this Section 4.04 shall ~~also include a certification~~ include: (i) A certification, signed by the senior officer in charge of the servicing functions of the Master Servicer, in the form attached ~~hereto~~ as Exhibit ~~C-1~~ D hereto or such other form as may be required or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by~~ . (ii) A report regarding its assessment of compliance during the ~~senior officer of~~ preceding calendar year with all applicable servicing criteria set forth in relevant Commission regulations with respect to mortgage-backed securities transactions taken as a whole involving the Master Servicer ~~in charge~~ that are backed by the same types of ~~securitization. (c) In addition~~assets as those backing the certificates, ~~the Indenture Trustee shall sign a certification (~~as well as similar reports on assessment of compliance received from other parties participating in the ~~form attached hereto~~ servicing function as ~~Exhibit C-2) for the benefit of the Master Servicer and its officers~~required by relevant Commission regulations, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as ~~an exhibit to the Form 10-K~~described in Item 1122(a). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 2 contracts

Samples: Servicing Agreement (Home Loan Trust 2006-Hi5), Servicing Agreement (Residential Funding Mortgage Securities Ii Inc)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the ~~Trust~~Depositor's satisfying the reporting requirements in respect of the Trust under the Exchange Act. The ~~Indenture Trustee~~ Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Depositor with respect to the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each ~~such document on behalf~~ Form 8-K with a copy of the ~~Depositor and the Issuer~~related Monthly Certificateholders Report attached thereto. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture Any other attachments to ~~the contrary, the Master Servicer, and not the Indenture Trustee, shall~~ be ~~responsible for executing each Form 10-K~~ filed ~~on behalf of the Trust. (b) Each~~ with any Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent in Xxxxx-compatible form or as otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. ~~If they are not so timely delivered,~~ Such XXXXX filings shall be at the ~~Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to~~ expense of the ~~Indenture Trustee~~Depositor. The ~~Indenture Trustee~~ Paying Agent shall ~~have no liability with respect~~ continue to ~~any failure to properly prepare~~ make such filings until such time as the Depositor notifies the Paying Agent that the Depositor or ~~file such periodic reports resulting~~ its agent or designee has obtained from the Securities and Exchange Commission a no-action letter or other exemptive relief relating to reducing reporting requirements in respect of the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 Trust under the Exchange Act and, in accordance with and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused extent permitted by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the ~~Indenture Trustee shall file with the Commission~~ Depositor or such agent or designee has filed a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic termination of reporting in respect of the Trust under the Exchange Act. Beginning on or before January 31, 2003, the Depositor shall pay the Paying Agent before January 31 of each year a fee of $5,000 as compensation for preparing and filing such reports for so long as such reports are required under the Exchange Act.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Series 2002 Top7), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2002 Top6)

Exchange Act Reporting. ~~(a)~~ The Indenture Trustee and the ~~Master~~ Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the ~~Trust's satisfying~~ satisfaction of the Depositor’s reporting requirements under the Exchange ~~Act~~Act with respect to the Issuer. ~~The~~ So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall ~~prepare~~ promptly notify the Depositor, and, in the case of an event reportable on ~~behalf~~ the Form 8-K, not later than two (2) Business Days after its occurrence, of any event reportable on the Exchange Act Reports of which such Person (or in the case of the Indenture Trustee, a Trust ~~any Forms 8-K~~ Officer of the Indenture Trustee) has knowledge. In addition, if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and ~~10-K customary for similar securities~~ the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as ~~required~~ may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the ~~Rules~~ extent such Person is a party (and ~~Regulations~~ the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in XXXXX-compatible form. Each of the ~~Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf~~ acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor ~~or Issuer~~ in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB and related rules and regulations. Without limiting the generality of the foregoing, so long as the Depositor is required to file Exchange Act Reports: (~~or such other entity). The Depositor and the Issuer hereby grant to~~ a) No later than each Determination Date, each of the Indenture Trustee ~~a limited power~~ and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of ~~attorney to execute~~ any Form 810-~~K and file each~~ D Disclosure Item with respect to such ~~document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of~~ Person (~~i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or in the ~~Indenture to the contrary, the Master Servicer, and not~~ case of the Indenture Trustee, ~~shall be responsible for executing each~~ a Trust Officer of the Indenture Trustee), together with a description of any such Form 10-~~K filed on behalf~~ D Disclosure Item in form and substance reasonably acceptable to the Depositor. In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the ~~Trust~~Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be provided concurrently with the statements to Noteholders pursuant to Section 5.06, commencing with the first such report due not less than five (5) Business Days following such request. (b) Each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two (2) Business Days after its occurrence, of any Form 8-K ~~shall be filed by~~ Reportable Event of which such Person (or in the case of the Indenture Trustee, a Trust Officer of the Indenture Trustee) has actual knowledge. Each Person, other than the Indenture Trustee ~~within 15 days after each Distribution Date~~as set forth above, ~~with a copy~~ shall be deemed to have actual knowledge of ~~the statement~~ any such event to the ~~Certificateholders for~~ extent that it relates to such ~~Distribution Date as an exhibit thereto. Prior~~ Person or any action or failure to act by such Person. (c) No later than March ~~30th~~ 15 of each ~~year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~year, commencing in 2016, the Indenture Trustee and the Servicer shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ notify the Depositor of any Form 10-K ~~and provide the Master Servicer~~ Disclosure Item, together with ~~the Form 10-K no later than March 20th~~ a description of ~~each year. The Master Servicer shall execute~~ any such Form 10-K ~~upon its receipt~~ Disclosure Item in form and substance reasonably acceptable to the Depositor. If any of the Item 1119 Parties have changed since the Closing Date, no later than February 1 of each year, commencing in 2016, the Depositor shall provide ~~the original~~ each of ~~such executed Form 10-K to~~ the Indenture Trustee ~~no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16~~ and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file Servicer with an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives updated list of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K)Item 1119 Parties. (d) ~~In addition~~On or before March 15 of each calendar year, commencing in 2016: (i) The Indenture Trustee shall deliver to the Depositor and the Servicer the Servicing Criteria Assessment. Such report shall be signed by an authorized officer of the Indenture Trustee and shall ~~indemnify and hold harmless~~ at a minimum address each of the ~~Master Servicer and~~ servicing criteria set forth in Item 1122(d) of Regulation AB delivered to the Depositor concurrently with the execution of this Agreement (provided that such certification may be revised after the date of this Agreement as agreed by the Depositor and ~~their officers, directors and Affiliates~~ the Indenture Trustee to reflect any guidance with respect to such criteria from ~~and against~~ the Commission). To the extent any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless Servicing Criteria are not applicable to the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon with respect to asset- backed securities transactions taken as a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then whole involving the Indenture Trustee and that are backed by the same asset type backing the Notes, such report shall include such a statement to that effect. The Indenture Trustee acknowledges and agrees that ~~it shall contribute~~ the Depositor and the Servicer with respect to ~~the amount paid or payable by the Master Servicer as a result~~ each of the ~~losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand~~ Depositor’s and the ~~Indenture Trustee on~~ Servicer’s duties as the ~~other in connection with a breach~~ Certifying Person, and each of their respective officers and directors shall be entitled to rely upon each such servicing criteria assessment and the ~~Indenture Trustee's obligations under this~~ attestation delivered pursuant to Section ~~4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and~~ 4.11. (ii) ~~the indemnification provided for herein is unavailable or insufficient to hold harmless the~~ The Indenture ~~Trustee, then the Master Servicer agrees that it~~ Trustee shall ~~contribute~~ deliver to the ~~amount paid or payable~~ Depositor and the Servicer a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee ~~as a result~~ and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 13a-18 and 15d-18 of the ~~losses~~Exchange Act (or any successor provisions), ~~claims~~Rules 1-02(a)(3) and 2-02(g) of Regulation S-X (or any successor provisions) under the Securities Act and the Exchange Act, ~~damages or liabilities of~~ including, that, in the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language. (iii) In the event the Indenture Trustee in is terminated or resigns during the term of this Agreement, such ~~proportion as is appropriate~~ Person shall provide the documents and information pursuant to ~~reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under~~ this Section ~~4.06~~ with respect to the period of time it was subject to this Agreement or provided services with respect to the Issuer or the ~~Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~Receivables. (e) In The Indenture Trustee represents that: (i) there are no affiliations relating to the ~~event the Commission permits separate or split certifications to be made~~ Indenture Trustee with respect to ~~the items currently contained in the Certification,~~ any Item 1119 Party; (ii) there are no relationships or transactions with respect to any Item 1119 Party and the Indenture Trustee ~~shall provide a certification~~ that are outside the ordinary course of business or on terms other than would be obtained in an arm’s-length transaction with ~~respect to items 1 and 2 and~~ an unrelated third party, apart from the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of transactions contemplated under the Basic Documents, and that are material to the ~~provisions~~ investors’ understanding of ~~this Section 4.06 may be amended by~~ the ~~Master Servicer~~Notes; and (iii) no litigation is pending or, to the ~~Issuer and~~ best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee ~~without~~ that, if determined adversely to the ~~consent~~ Indenture Trustee, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of ~~the Securityholders. (g) Prior to January 30th of the first year in which~~ the Indenture Trustee ~~is able~~ to ~~do so~~ perform its obligations under ~~applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust~~this Agreement.

Appears in 2 contracts

Samples: Sale and Servicing Agreement, Sale and Servicing Agreement (California Republic Auto Receivables Trust 2015-1)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Exchange Act. ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Certificate Administrator shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Certificate Administrator shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificate Administrator Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Certificate Administrator in Xxxxx-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Certificate Administrator and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Certificate Administrator shall prepare and file an Annual Report on Form 10-K (a "Form 10-K"), in substance as required by applicable law or and applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under Section ~~3.16~~ 3.13 and ~~the~~ each accountant's report described under Section ~~3.17~~3.23, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Certificate Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Certificate Administrator shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Certificate Administrator. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section. The ~~Indenture Trustee~~ Certificate Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from ~~or relating to~~ the ~~Indenture Trustee~~Certificate Administrator's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Certificate Administrator is able to do so under applicable law, the Certificate Administrator shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include a any certification ~~in the form attached hereto as Exhibit C-1~~ (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff). Each Master Servicer, each Special Servicer and the Certificate Administrator (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in ~~compliance with Rules 13a-14~~ form and ~~15d-14 under~~ substance reasonably satisfactory to the ~~Exchange Act~~ Depositor and ~~any additional directives of~~ the ~~Commission~~Performing Party, upon which ~~shall be signed by~~ the ~~senior officer of the Master Servicer in charge of securitization. (c) In addition~~Certifying Person, the ~~Indenture Trustee shall sign a certification~~ entity for which the Certifying Person acts as an officer (in if the ~~form attached hereto as Exhibit C-2) for the benefit of the Master Servicer~~ Certifying Person is an individual), and ~~its~~ such entity's officers, directors and Affiliates ~~regarding certain aspects of items 1 through 3~~ (collectively with the Certifying Person, "Certification Parties") can rely, relating to the accuracy and completeness of the ~~Certification (~~information and reports provided under this Agreement by such Performing Party; provided, however, that the ~~Indenture Trustee~~ certification required from the General Special Servicer shall ~~not undertake an analysis~~ contain the following information: (i) a statement acknowledging that the officer of ~~any accountant's report attached as an exhibit to~~ the General Special Servicer signing such certification has reviewed the information provided by it for inclusion in the Form 10-K to be covered by the subject Xxxxxxxx-Xxxxx Certification; (ii) a statement, based on the knowledge of the officer of the General Special Servicer that is signing such certification, that the information provided by it to be covered by such Xxxxxxxx-Xxxxx Certification solely relating to actions of the General Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties for which it is the applicable Special Servicer, taken as a whole, does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements made, not misleading as of the last day of the period covered by the subject Form 10-K); (iii) a statement, based on the knowledge of the officer of the General Special Servicer that is signing such certification, that the information provided by it and to be covered by such Xxxxxxxx-Xxxxx Certification relating solely to actions of the General Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties for which it is the applicable Special Servicer, includes all information of such type available to the General Special Servicer and required to be included in the Certificate Administrator Reports for the relevant period covered by the subject Form 10-K; and (iv) a statement that the officer of the General Special Servicer that is signing such certification has disclosed to the Depositor's certified public accountants and the accountants that are to deliver the Annual Accountants' Report in respect of the General Special Servicer with respect to the relevant period covered by the subject Form 10-K all significant deficiencies relating to the Special Servicer's compliance with the minimum servicing standards in accordance with a review conducted in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar standards as set forth in this Agreement. Notwithstanding the foregoing, nothing in this paragraph shall require any Performing Party to (i) certify or verify the accurateness or completeness of any information provided to such Performing Party by third parties, (ii) to certify information other than to such Performing Party's knowledge or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Performing Party have been completed except as they have been left blank on their face. In addition, if the Performing Party is a Master Servicer or Special Servicer, such Performing Party shall execute a reasonable reliance certificate to enable the Certification Parties to rely upon the Annual Compliance Certificate provided pursuant to Section 3.13, and shall include a certification that such Annual Compliance Certificate discloses any deficiencies or defaults described to the certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in Section 3.14. If directed by the Depositor, such Performing Party shall provide an identical certification to Depositor's certified public accountants that such Performing Party provided to its own certified public accountants to the extent such certification relates to the performance of such Performing Party's duties pursuant to this agreement or a modified certificate limiting the certification therein to the performance of such Performing Parties duties pursuant to this Agreement. (dc) ~~In addition, (i) the Indenture Trustee~~ Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of ~~or based upon a~~ an actual breach of the ~~Indenture Trustee~~applicable Performing Party's obligations under subsection (b) of this Section ~~4.06 caused by~~ or the ~~Indenture Trustee~~applicable Performing Party's negligence, bad faith or willful misconduct in connection ~~therewith~~with such obligations. (d) Nothing contained in this Section shall be construed to require any party to this Agreement, ~~and (ii) the Master Servicer~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement, or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~indemnify and hold harmless the Indenture Trustee~~not be regarded as a breach by such party of any of its obligations under this Agreement. The Depositor, ~~the~~ each Master Servicer, each Special Servicer and the ~~Issuer and their respective officers, directors and Affiliates~~ Certificate Administrator hereby agree to negotiate in good faith with respect to compliance with any further guidance from ~~and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ the Commission or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute its staff relating to the ~~amount paid or payable by the Master Servicer as a result~~ execution of ~~the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand~~ any Form 10-K and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such matters, this Agreement shall be amended to reflect such agreement pursuant to Section 11.01, which amendment shall not require any Opinions of Counsel, Officer's Certificates, Rating Agency confirmations or the ~~Commission permits separate or split certifications to be made with respect~~ consent of any Certificateholder, notwithstanding anything to the ~~items currently~~ contrary contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this ~~purpose~~Agreement. In ~~addition,~~ no event shall the ~~Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master~~ General Special Servicer ~~and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of~~ be required to execute any ~~accountant's report attached as an exhibit to the~~ Form 10-K)K or any Xxxxxxxx-Xxxxx Certification. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-3 transaction shall be required to provide to the Securities Administrator, the Credit Enhancer and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on XXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-3 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on XXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (gi) ~~Prior~~ On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-3)

Exchange Act Reporting. ~~(a)~~ The Indenture Trustee and the ~~Master~~ Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the ~~Trust's satisfying~~ satisfaction of the Depositor’s reporting requirements under the Exchange ~~Act~~Act with respect to the Issuer. ~~The~~ So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall ~~prepare~~ promptly notify the Depositor, and, in the case of an event reportable on ~~behalf~~ the Form 8-K, not later than two (2) Business Days after its occurrence, of any event reportable on the Exchange Act Reports of which such Person (or in the case of the Indenture Trustee, a Trust ~~any Forms 8-K~~ Officer of such Person) has knowledge. In addition, if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and ~~10-K customary for similar securities~~ the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as ~~required~~ may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the ~~Rules~~ extent such Person is a party (and ~~Regulations~~ the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in XXXXX-compatible form. Each of the ~~Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf~~ acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor ~~or Issuer~~ in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB and related rules and regulations. Without limiting the generality of the foregoing, so long as the Depositor is required to file Exchange Act Reports: (~~or such other entity). The Depositor and the Issuer hereby grant to~~ a) No later than each Determination Date, each of the Indenture Trustee ~~a limited power~~ and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of ~~attorney to execute~~ any Form 810-~~K and file each~~ D Disclosure Item with respect to such ~~document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of~~ Person (~~i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or in the ~~Indenture to the contrary, the Master Servicer, and not~~ case of the Indenture Trustee, ~~shall be responsible for executing each~~ a Trust Officer of such Person), together with a description of any such Form 10-~~K filed on behalf~~ D Disclosure Item in form and substance reasonably acceptable to the Depositor. In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the ~~Trust~~Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be provided concurrently with the statements to Noteholders pursuant to Section 5.06, commencing with the first such report due not less than five (5) Business Days following such request. (b) Each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two (2) Business Days after its occurrence, of any Form 8-K ~~shall be filed by~~ Reportable Event of which such Person (or in the case of the Indenture Trustee, a Trust Officer of such Person) has actual knowledge. Each Person, other than the Indenture Trustee ~~within 15 days after each Distribution Date~~as set forth above, ~~with a copy~~ shall be deemed to have actual knowledge of ~~the statement~~ any such event to the ~~Certificateholders for~~ extent that it relates to such ~~Distribution Date as an exhibit thereto. Prior~~ Person or any action or failure to act by such Person. (c) No later than March ~~30th~~ 15 of each ~~year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~year, commencing in 201[ ], the Indenture Trustee and the Servicer shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ notify the Depositor of any Form 10-K ~~and provide the Master Servicer~~ Disclosure Item, together with ~~the Form 10-K no later than March 20th~~ a description of ~~each year. The Master Servicer shall execute~~ any such Form 10-K ~~upon its receipt~~ Disclosure Item in form and substance reasonably acceptable to the Depositor. If any of the Item 1119 Parties have changed since the Closing Date, no later than February 1 of each year, commencing in 2015, the Depositor shall provide ~~the original~~ each of ~~such executed Form 10-K to~~ the Indenture Trustee ~~no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16~~ and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file Servicer with an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives updated list of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K)Item 1119 Parties. (d) ~~In addition~~On or before March 15 of each calendar year, commencing in 201[ ]: (i) The Indenture Trustee shall deliver to the Depositor and the Servicer the Servicing Criteria Assessment. Such report shall be signed by an authorized officer of the Indenture Trustee and shall ~~indemnify and hold harmless~~ at a minimum address each of the ~~Master Servicer and~~ servicing criteria set forth in Item 1122(d) of Regulation AB delivered to the Depositor concurrently with the execution of this Agreement (provided that such certification may be revised after the date of this Agreement as agreed by the Depositor and ~~their officers, directors and Affiliates~~ the Indenture Trustee to reflect any guidance with respect to such criteria from ~~and against~~ the Commission). To the extent any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless Servicing Criteria are not applicable to the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon with respect to asset-backed securities transactions taken as a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then whole involving the Indenture Trustee and that are backed by the same asset type backing the Notes, such report shall include such a statement to that effect. The Indenture Trustee acknowledges and agrees that ~~it shall contribute to~~ the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand Depositor and the ~~Indenture Trustee on~~ Servicer with respect to its duties as the ~~other in connection with a breach~~ Certifying Person, and each of their respective officers and directors shall be entitled to rely upon each such servicing criteria assessment and the ~~Indenture Trustee's obligations under this~~ attestation delivered pursuant to Section ~~4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and~~ 4.11. (ii) ~~the indemnification provided for herein is unavailable or insufficient to hold harmless the~~ The Indenture ~~Trustee, then the Master Servicer agrees that it~~ Trustee shall ~~contribute~~ deliver to the ~~amount paid or payable~~ Depositor and the Servicer a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee ~~as a result~~ and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 13a-18 and 15d-18 of the ~~losses~~Exchange Act (or any successor provisions), ~~claims~~Rules 1-02(a)(3) and 2-02(g) of Regulation S-X (or any successor provisions) under the Securities Act and the Exchange Act, ~~damages or liabilities of~~ including, that, in the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language. (iii) In the event the Indenture Trustee in is terminated or resigns during the term of this Agreement, such ~~proportion as is appropriate~~ Person shall provide the documents and information pursuant to ~~reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under~~ this Section ~~4.06~~ with respect to the period of time it was subject to this Agreement or provided services with respect to the Issuer or the ~~Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~Receivables. (e) In The Indenture Trustee represents that: (i) there are no affiliations relating to the ~~event the Commission permits separate or split certifications to be made~~ Indenture Trustee with respect to ~~the items currently contained in the Certification,~~ any Item 1119 Party; (ii) there are no relationships or transactions with respect to any Item 1119 Party and the Indenture Trustee ~~shall provide a certification~~ that are outside the ordinary course of business or on terms other than would be obtained in an arm’s-length transaction with ~~respect to items 1 and 2 and~~ an unrelated third party, apart from the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of transactions contemplated under the Basic Documents, and that are material to the ~~provisions~~ investors’ understanding of ~~this Section 4.06 may be amended by~~ the ~~Master Servicer~~Notes; and (iii) no litigation is pending or, to the ~~Issuer and~~ best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee ~~without~~ that, if determined adversely to the ~~consent~~ Indenture Trustee, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of ~~the Securityholders. (g) Prior to January 30th of the first year in which~~ the Indenture Trustee ~~is able~~ to ~~do so~~ perform its obligations under ~~applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust~~this Agreement.

Appears in 1 contract

Samples: Sale and Servicing Agreement (California Republic Funding LLC)

Exchange Act Reporting. (ai) Within 15 days after each Payment Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Securities Administrator shall file each Form 10-D with a copy of the Payment Date Statement for the related Payment Date attached thereto. Any disclosure in addition to the Payment Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit C as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Payment Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity, the Indenture Trustee and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Investment Trust 2006-1 transaction shall be required to, provide to the Securities Administrator and the Sponsor, to the extent known by a responsible officer thereof, in EXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit C hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit F hereto (an “Additional Disclosure Notification”) and (B) the Sponsor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Sponsor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Sponsor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review no later than 5 Business Days prior to the 15th calendar day after the related Payment Date. No later than 2 Business Day following receipt of the draft Form 10-D, the Sponsor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitles to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunderexecution of, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf filing of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-~~K and provide the Master Servicer with the Form 10-K no~~ D. No later than ~~March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ 2 Business Days prior to the ~~Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits~~ 15th calendar day after the ~~Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~related Payment Date, ~~in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file~~ an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of ~~securitization. (c) In addition~~the master servicing function shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the ~~Indenture Trustee shall sign~~ Securities Administrator will follow the procedures set forth in Section 3.29(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will make available on its internet website a ~~certification (in~~ final executed copy of each Form 10-D. Each party to this Master Servicing Agreement acknowledges that the ~~form attached hereto as Exhibit C-2) for the benefit of~~ performance by the Master Servicer and Securities Administrator of its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit duties under this Section 3.29(a) related to the timely preparation, execution and filing of Form 10-~~K). (d) In addition, (i)~~ D is contingent upon such parties strictly observing all applicable deadlines in the ~~Indenture Trustee shall indemnify and hold harmless~~ performance of their duties as set forth in this Master Servicing Agreement. Neither the Securities Administrator nor the Master Servicer ~~and the Depositor and their officers~~shall have any liability for any loss, ~~directors and Affiliates from and against any losses~~expense, ~~damages~~damage, ~~penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 10-D, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful ~~misconduct~~ misconduct. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Sponsor, the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Sponsor shall file the initial Form 8-K in connection ~~therewith~~with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit C as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity, the Indenture Trustee and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Investment Trust 2006-1 transaction shall be required to, provide to the Securities Administrator and the Sponsor, to the extent known by a responsible officer thereof, in EXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit C hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Sponsor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Sponsor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Sponsor for review no later than the Business Day following receipt of an Additional Disclosure Notification with respect to a Reportable Event. No later than the Business Day following receipt of a draft copy of the From 8-K, the Sponsor and the Master Servicer shall ~~indemnify and hold harmless~~ notify the ~~Indenture Trustee~~Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the ~~Master Servicer~~Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the ~~Issuer~~ Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, an officer of the Master Servicer in charge of the master servicing function shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.29(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Master Servicing Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their respective ~~officers~~duties under this Section 3.29(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Master Servicing Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Master Servicer's obligations under this Section 4.06~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or ~~the Master Servicer's~~ file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. (ec) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (gi) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act. The Securities Administrator shall give prompt written notice of the filing of such Form 15 to the Sponsor, the Master Servicer, the Servicer and the Issuing Entity.

Appears in 1 contract

Samples: Master Servicing Agreement (American Home Mortgage Investment Trust 2006-1)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2006-6 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on XXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2006-6 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on XXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (~~g) Prior~~ i)On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-6)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-4 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on XXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York City time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-4 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York City time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on XXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (gi) ~~Prior~~ On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-4)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include a any certification ~~in the form attached hereto as Exhibit C-1~~ (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in ~~compliance~~ form and substance reasonably satisfactory to the Depositor and the Certifying Person, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the Certifying Person is an individual), and such entity's officers, directors and Affiliates (collectively with ~~Rules 13a-14~~ the Certifying Person, "Certification Parties") can rely, relating to the accuracy and ~~15d-14 under the Exchange Act and any additional directives~~ completeness of the ~~Commission~~information and reports provided under this Agreement by such Performing Party. The Master Servicer shall serve as the Certifying Person on behalf of the Trust. Notwithstanding the foregoing, ~~which~~ nothing in this paragraph shall ~~be signed~~ require any Performing Party to (i) certify or verify the accurateness or completeness of any information provided to such Performing Party by third parties, (ii) to certify information other than to such Performing Party's knowledge or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Performing Party have been completed except as they have been left blank on their face. In addition, if the Performing Party is the Special Servicer, such Performing Party shall execute a reasonable reliance certificate to enable the Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in Section 9.19. If directed by the ~~senior officer~~ Depositor, such Performing Party shall provide an identical certification to Depositor's certified public accountants that such Performing Party provided to its own certified public accountants to the extent such certification relates to the performance of such Performing Party's duties pursuant to this Agreement or a modified certificate limiting the ~~Master Servicer in charge~~ certification therein to the performance of ~~securitization~~such Performing Party's duties pursuant to this Agreement. In the event any Performing Party is terminated or resigns pursuant to the terms of this Agreement, such Performing Party shall provide a Performance Certification to the Depositor pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses~~Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement, ~~damages~~or any of such party's officers, ~~penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ to execute any Form 10-K or ~~based upon~~ any Xxxxxxxx-Xxxxx Certification shall not be regarded as a breach by such party of ~~the Master Servicer's~~ any of its obligations under this Agreement. This Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 but without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep for Ser 2003 Hq2)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee (to the extent any information requested by the Depositor is actually in the possession of the Trustee) and the Master Servicer shall ~~reasonably~~ fully cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange ~~Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities~~ Act as ~~required~~ may be requested by the ~~Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable~~ Depositor pursuant to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of Section 3.26. (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee via e-mail (DXXXX.Xxxxxxxxxxxxx@xx.xxx), and to the Depositor and the Certificate Insurer, to the extent known by a responsible party thereof, any Additional Form 10-D Disclosure, if applicable, clearly identifying which item of Form 10-D the information relates to. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee and the Certificate Insurer with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 30, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 30 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. On or ~~willful misconduct. The~~ prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee via e-mail (DXXXX.Xxxxxxxxxxxxx@xx.xxx), and to the Certificate Insurer and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (dc) ~~In addition,~~ (iA) ~~the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-5)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture Trustee and~~ Servicer shall fully cooperate with the Master Servicer ~~shall reasonably cooperate with the Issuer and the Depositor~~ in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date as an exhibit thereto~~Date. ~~Prior~~ Any disclosure in addition to ~~March 30th of each year (or such earlier date as may~~ the monthly statement required to be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit C as the responsible party for providing that information, if other than the Trustee. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit C as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee and the Depositor, to the extent known by a responsible party thereof, clearly identifying which item of Form 10-D the information relates to, any Additional Form 10-D Disclosure, if applicable. Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a "Reportable Event"), the Depositor shall prepare and ~~provide~~ file any Form 8-K, as required by the ~~Master Servicer~~ Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure Information") shall be determined and prepared by the entity that is indicated in Exhibit C as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit C as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. Any disclosure or information that is required to be included on Form 10-K ~~no later than March 20th of each year. The Master Servicer shall execute such~~ ("Additional Form 10-K ~~upon its receipt~~ Disclosure") shall be determined and prepared by the entity that is indicated in Exhibit C as the responsible party for providing that information, if other than the Trustee. On or prior to (x) March 15, 200_ and (y) unless and until a Form 15 Suspension Notice shall ~~provide~~ have been filed, prior to March 31 of each year thereafter, each entity that is indicated in Exhibit C as the ~~original of such executed~~ responsible party for providing Additional Form 10-K Disclosure shall be required to provide to the ~~Indenture~~ Trustee ~~no later than March 25th~~ and the Depositor, to the extent known by a responsible party thereof, the form and substance of ~~each year. Such~~ any Additional Form 10-K ~~shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~Disclosure Information, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitizationif applicable. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Impac Secured Assets Corp)

Exchange Act Reporting. SECTION 11.01 Form 10-D Reporting Within 15 days after each Distribution Date (asubject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Securities Administrator shall file each Form 10-D with a copy of the related Monthly Statement attached thereto. Any disclosure in addition to the Monthly Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, within 5 calendar days after the related Distribution Date, (i) the parties set forth thereon shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, a notice in the form of Exhibit R hereto (an “Additional Disclosure Notification”) together with, the form and substance of any Additional Form 10-D Disclosure, if applicable to such party and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The ~~Indenture Trustee~~ Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor and the Master Servicer for review. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall ~~reasonably cooperate~~ notify the Securities Administrator of any changes to or approval of such Form 10-D. No later than 2 Business Days prior to the 15th calendar day after the related Distribution Date, a duly authorised officer of the Master Servicer in charge of the master servicing function shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Securities Administrator. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the ~~Issuer and~~ Commission, the ~~Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare~~ Securities Administrator will make available on ~~behalf~~ its internet website a final executed copy of ~~the Trust any Forms 8-K and~~ each Form 10-~~K customary for similar securities as required~~ D filed by the ~~Exchange Act and~~ Securities Administrator. Each party to this Agreement acknowledges that the ~~Rules and Regulations of~~ performance by the ~~Commission thereunder,~~ Securities Administrator and the Master Servicer ~~shall sign (or shall cause another entity acceptable~~ of its duties under this Section 11.01 related to the ~~Commission~~ timely preparation, execution and filing of Form 10-D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Section 11.01. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to ~~sign) and the Indenture Trustee shall~~ any failure to properly prepare, timely execute and/or timely file ~~(via the Commission's Electronic Data Gathering and Retrieval System)~~ such ~~forms on behalf of the Depositor or Issuer (or~~ Form 10-D, where such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee failure results from the ~~Depositor and the Issuer of written termination of~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such ~~power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ Form 10-D, not resulting from its own negligence, bad faith or ~~in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each~~ willful misconduct. SECTION 11.02 Form 10-K ~~filed on behalf~~ Reporting Within 90 days after the end of each fiscal year of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (Trust or such earlier date as may be required ~~or permitted~~ by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2007, the Securities Administrator shall prepare and ~~the Rules and Regulations~~ file on behalf of the ~~Commission), the Indenture Trustee shall file~~ Trust a Form 10-K, in form and substance as required by ~~applicable law or applicable Commission staff's interpretations~~the Exchange Act. ~~The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute~~ Each such ~~Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such~~ Form 10-K shall include ~~as exhibits~~ the ~~Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Indenture Trustee. If they are not so timely delivered~~Securities Administrator within the applicable time frames set forth in this Agreement and the related Purchase and Servicing Agreement or Servicing Agreement, as applicable, (i) the Item 1123 Certification for each Servicer, each Additional Servicer, the ~~Indenture Trustee shall file~~ Master Servicer and the Securities Administrator and any Servicing Function Participant engaged by the Master Servicer or the Securities Administrator as described under Section 11.05, (ii)(A) the Assessment of Compliance with servicing criteria for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.06, and (B) if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance is not included as an ~~amended~~ exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the Accountant’s Attestation for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.07, and (B) if any Accountant’s Attestation identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such Accountant’s Attestation is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.08. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The (“Additional Form 10-K Disclosure”) shall ~~also include~~ be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, no later than March 15 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a ~~certification~~ Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form ~~attached hereto as~~ of Exhibit ~~C-1 (the "Certification")~~R hereto, along with, in ~~compliance with Rules 13a-14~~ XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and ~~15d-14 under~~ such party, the ~~Exchange Act~~ form and substance of any ~~additional directives~~ Additional Form 10-K Disclosure, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the ~~Commission, which shall~~ Additional Form 10-K Disclosure on Form 10-K. The Depositor will be ~~signed~~ responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. After preparing the Form 10-K, the Securities Administrator shall forward electronically a draft copy of the Form 10-K to the Master Servicer and the Depositor for review. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 10-K. No later than the close of business on the 4th Business Day prior to the 10-K Filing Deadline, a senior officer of the Master Servicer in charge of ~~securitization.~~ the master servicing function shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (cwith an original executed hard copy to follow by overnight mail) ~~In addition~~to the Securities Administrator. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the ~~Indenture Trustee shall sign~~ Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will make available on its internet website a ~~certification (in~~ final executed copy of each Form 10-K filed by the ~~form attached hereto as Exhibit C-2) for~~ Securities Administrator. The parties to this Agreement acknowledge that the ~~benefit of~~ performance by the Master Servicer and the Securities Administrator of its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit duties under this Section 11.02 related to the timely preparation, execution and filing of Form 10-K is contingent upon such parties (and any Additional Servicer or Servicing Function Participant) strictly observing all applicable deadlines in the performance of their duties under Article XI. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, execute and/or timely file such Form 10-K), where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own negligence, bad faith or willful misconduct. SECTION 11.03 Form 8-K Reporting Within four (d4) ~~In addition~~Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. As set forth on Exhibit N hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of a Reportable Event (i) the ~~Indenture Trustee~~ parties set forth on Exhibit N shall ~~indemnify~~ be required to provide to the Securities Administrator and ~~hold harmless~~ the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R attached hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. After preparing the Form 8-K, the Securities Administrator shall forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. No later than noon on the 4th Business Day after the Reportable Event, a duly authorised officer of the Master Servicer in charge of the master servicing function shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Securities Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.03 related to the timely preparation, execution and filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their ~~officers~~duties under this Section 11.03. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, ~~directors and Affiliates from and against any losses~~expense, ~~damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Alternative Loan Trust 2006-S1)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Exchange Act. ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Certificate Administrator shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Certificate Administrator shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Certificate Administrator Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Certificate Administrator in Xxxxx-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Certificate Administrator and the Depositor, at the Depositor's 268 expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Certificate Administrator shall prepare and file an Annual Report on Form 10-K (a "Form 10-K"), in substance as required by applicable law or and applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under Section ~~3.16~~ 3.13 and ~~the~~ each accountant's report described under Section ~~3.17~~3.14, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Certificate Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Certificate Administrator shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Certificate Administrator. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section. The ~~Indenture Trustee~~ Certificate Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from ~~or relating to~~ the ~~Indenture Trustee~~Certificate Administrator's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Certificate Administrator is able to do so under applicable law, the Certificate Administrator shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act and shall provide the Special Servicers and the Master Servicers with written notice of such filing. (b) The Form 10-K shall ~~also~~ include a any certification ~~in the form attached hereto as Exhibit C-1~~ (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff). Each Master Servicer, each Special Servicer and the Certificate Administrator (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in ~~compliance with Rules 13a-14~~ form and ~~15d-14 under~~ substance reasonably satisfactory to the ~~Exchange Act~~ Depositor and ~~any additional directives of~~ the ~~Commission~~Performing Party, upon which ~~shall be signed by~~ the ~~senior officer of the Master Servicer in charge of securitization. (c) In addition~~Certifying Person, the ~~Indenture Trustee shall sign a certification~~ entity for which the Certifying Person acts as an officer (in if the ~~form attached hereto as Exhibit C-2) for the benefit of the Master Servicer~~ Certifying Person is an individual), and ~~its~~ such entity's officers, directors and Affiliates ~~regarding certain aspects of items 1 through 3~~ (collectively with the Certifying Person, "Certification Parties") can rely, relating to the accuracy and completeness of the ~~Certification (~~information and reports provided under this Agreement by such Performing Party; provided, however, that the ~~Indenture Trustee~~ certification required from the General Special Servicer shall ~~not undertake an analysis~~ contain the following information: (i) a statement acknowledging that the officer of ~~any accountant's report attached as an exhibit to~~ the General Special Servicer signing such certification has reviewed the information provided by it for inclusion in the Form 10-K to be covered by the subject Xxxxxxxx-Xxxxx Certification; (ii) a statement, based on the knowledge of the officer of the General Special Servicer that is signing such certification, that the information provided by it to be covered by such Xxxxxxxx-Xxxxx Certification solely relating to actions of the General Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties for which it is the applicable Special Servicer, taken as a whole, does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements made, not misleading as of the last day of the period covered by the subject Form 10-K); (iii) a statement, based on the knowledge of the officer of the General Special Servicer that is signing such certification, that the information provided by it and to be covered by such Xxxxxxxx-Xxxxx Certification relating solely to actions of the General Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties for which it is the applicable Special Servicer, includes all information of such type available to the General Special Servicer and required to be included in the Certificate Administrator Reports for the relevant period covered by the subject Form 10-K; and (iv) a statement, based on the knowledge of the officer of the General Special Servicer that is signing such certification, that the General Special Servicer has disclosed all significant deficiencies relating to the Special Servicer's compliance with the minimum servicing standards during the period covered by the subject Form 10-K in the report provided by an independent public accountant, after conducting a review in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar procedure, as set forth in this Agreement. 269 Notwithstanding the foregoing, nothing in this paragraph shall require any Performing Party to (i) certify or verify the accurateness or completeness of any information provided to such Performing Party by third parties, (ii) to certify information other than to such Performing Party's knowledge or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Performing Party have been completed except as they have been left blank on their face. In addition, if the Performing Party is a Master Servicer or a Special Servicer, such Performing Party shall, upon request, execute a reasonable reliance certificate acknowledging the Certification Party's right to rely upon the Annual Compliance Certificate provided pursuant to Section 3.13, and shall include a certification, based on the knowledge of the officer that is signing such certification, that such Annual Compliance Certificate discloses any significant deficiencies or defaults described to the certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in Section 3.14. In addition, in the event that a Serviced Non-Pooled Pari Passu Companion Loan is deposited into a commercial mortgage securitization, on or before March 20th of each year with respect to which a Form 10-K is filed by the related trustee for such commercial mortgage securitization, the applicable Master Servicer and the applicable Special Servicer, shall, upon request, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such commercial mortgage securitization a certification in form and substance reasonably satisfactory to the depositor of such commercial mortgage securitization and the applicable Master Servicer or the applicable Special Servicer, as applicable, with respect to such Serviced Non-Pooled Pari Passu Companion Loan, on which such Person and such Person's partner, representative, Affiliate, member, manager, director, officer, employee or agent can rely. (dc) ~~In addition, (i) the Indenture Trustee~~ Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of ~~or based upon a~~ an actual breach of the ~~Indenture Trustee~~applicable Performing Party's obligations under subsection (b) of this Section ~~4.06 caused by~~ or the ~~Indenture Trustee~~applicable Performing Party's negligence, bad faith or willful misconduct in connection ~~therewith~~with such obligations. (d) Nothing contained in this Section shall be construed to require any party to this Agreement, ~~and (ii) the Master Servicer~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement, or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~indemnify and hold harmless the Indenture Trustee~~not be regarded as a breach by such party of any of its obligations under this Agreement. The Depositor, ~~the~~ each Master Servicer, each Special Servicer and the ~~Issuer and their respective officers, directors and Affiliates~~ Certificate Administrator hereby agree to negotiate in good faith with respect to compliance with any further guidance from ~~and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ the Commission or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute its staff relating to the ~~amount paid or payable by the Master Servicer as a result~~ execution of ~~the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand~~ any Form 10-K and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such matters, this Agreement shall be amended to reflect such agreement pursuant to Section 11.01, which amendment shall not require any Opinions of Counsel, Officer's Certificates, Rating Agency confirmations or the ~~Commission permits separate or split certifications to be made with respect~~ consent of any Certificateholder, notwithstanding anything to the ~~items currently~~ contrary contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this ~~purpose~~Agreement. In ~~addition,~~ no event shall the ~~Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master~~ General Special Servicer ~~and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of~~ be required to execute any ~~accountant's report attached as an exhibit to the~~ Form 10-~~K). (f) Notwithstanding~~ K or any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.Xxxxxxxx-Xxxxx Certification. 270

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)

Exchange Act Reporting. Section 11.01 Form 10-D Reporting Within 15 days after each Distribution Date (asubject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Securities Administrator shall file each Form 10-D with a copy of the related Monthly Statement attached thereto. Any disclosure in addition to the Monthly Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, within 5 calendar days after the related Distribution Date of each month that the Trust is subject to the Exchange Act reporting requirements, (i) the parties set forth thereon shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, in XXXXX-compatible form, or in such other format as otherwise agreed upon by the Securities Administrator and such party, a notice in the form of Exhibit R hereto (an “Additional Disclosure Notification”) together with, the form and substance of any Additional Form 10-D Disclosure, if applicable to such party and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The ~~Indenture Trustee~~ Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D, the Securities Administrator shall forward electronically a copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ Securities Administrator of ~~the Trust~~ any ~~Forms 8-K and~~ changes to or approval of such Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized officer of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (~~or shall cause another entity acceptable~~ with an original executed hard copy to follow by overnight mail) to the ~~Commission~~ Securities Administrator. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to ~~sign~~be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be~~ D filed by the ~~Indenture Trustee within 15~~ Securities Administrator. Each party to this Agreement acknowledges that the performance by the Securities Administrator and the Master Servicer of its duties under this Section 11.01 related to the timely preparation, execution and filing of Form 10-D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Section 11.01. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, timely execute and/or timely file such Form 10-D, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. Section 11.02 Form 10-K Reporting Within 90 days after the end of each ~~Distribution Date, with a copy~~ fiscal year of the ~~statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (~~Trust or such earlier date as may be required ~~or permitted~~ by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2007, the Securities Administrator shall prepare and ~~the Rules and Regulations~~ file on behalf of the ~~Commission), the Indenture Trustee shall file~~ Trust a Form 10-K, in form and substance as required by ~~applicable law or applicable Commission staff's interpretations~~the Exchange Act. ~~The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute~~ Each such ~~Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such~~ Form 10-K shall include ~~as exhibits~~ the ~~Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Indenture Trustee. If they are not so timely delivered~~Securities Administrator within the applicable time frames set forth in this Agreement and the related Purchase and Servicing Agreement or Servicing Agreement, as applicable, (i) the Item 1123 Certification for each Servicer, each Additional Servicer, the ~~Indenture Trustee shall file~~ Master Servicer and the Securities Administrator (and any Servicing Function Participant engaged by the Master Servicer or the Securities Administrator) as described under Section 11.05, (ii)(A) the Assessment of Compliance with servicing criteria for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.06, and (B) if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance is not included as an ~~amended~~ exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the Accountant’s Attestation for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.07, and (B) if any Accountant’s Attestation identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such Accountant’s Attestation is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.08. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~including such documents as exhibits reasonably promptly after they are delivered~~ (“Additional Form 10-K Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Indenture Trustee~~following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, no later than March 15 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-K Disclosure, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. After preparing the Form 10-K, the Securities Administrator shall forward electronically a draft copy of the Form 10-K to the Master Servicer and the Depositor. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 10-K. No later than the close of business on the 4th Business Day prior to the 10-K Filing Deadline, a senior officer of the Master Servicer shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Securities Administrator. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-K filed by the Securities Administrator. The ~~Indenture Trustee~~ parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.02 related to the timely preparation, execution and filing of Form 10-K is contingent upon such parties (and any Additional Servicer or Servicing Function Participant) strictly observing all applicable deadlines in the performance of their duties under Article XI. Neither the Master Servicer nor the Securities Administrator shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-K, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct~~. The~~ . Section 11.03 Form 108-K Reporting Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~also include~~ prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a ~~certification~~ Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the ~~form attached hereto~~ next paragraph. As set forth on Exhibit N hereto, for so long as ~~Exhibit C-1 (~~the ~~"Certification"), in compliance with Rules 13a-14 and 15d-14 under~~ Trust is subject to the Exchange Act ~~and any additional directives~~ reporting requirements, no later than the end of business on the ~~Commission, which shall be signed by~~ 2nd Business Day after the ~~senior officer~~ occurrence of ~~the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign~~ a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, Reportable Event (i) the ~~Indenture Trustee~~ parties set forth on Exhibit N shall ~~indemnify~~ be required to provide to the Securities Administrator and ~~hold harmless~~ the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R attached hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. After preparing the Form 8-K, the Securities Administrator shall forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. No later than noon on the 4th Business Day after the Reportable Event, a duly authorized officer of the Master Servicer shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Securities Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.03 related to the timely preparation, execution and filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their ~~officers~~duties under this Section 11.03. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, ~~directors and Affiliates from and against any losses~~expense, ~~damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Mortgage Trust 2006-A2)

Exchange Act Reporting. (a) The ~~Indenture Trustee~~ Master Servicer, the Special Servicer, the Paying Agent and the ~~Master Servicer~~ Trustee shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each ~~year~~ year, commencing in 2006 (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Each Form 10-K shall also include ~~a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and~~ any ~~additional directives of the Commission, which shall~~ Xxxxxxxx-Xxxxx Certification required to be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection included therewith, ~~and~~ as described in paragraph (iib) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.this

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005-Hq7)

Exchange Act Reporting. ~~(a)~~ The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely -209- delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Paying Agent is able to do so under applicable law, the ~~Indenture Trustee~~ Paying Agent shall file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Trust under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 HQ4)

Exchange Act Reporting. (a) ~~The Indenture Trustee~~ (i) Unless and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunderuntil a Form 15 Suspension Notice has been filed pursuant to Section 4.02(a)(iii) below, ~~and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and~~ within 15 days after each Payment Date, the Indenture Trustee ~~shall~~ shall, in accordance with industry standards, file (with the Commission via the ~~Commission's~~ Electronic Data Gathering and Retrieval ~~System) such forms~~ System (“EXXXX”), a distribution report on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be filed~~ D, signed by the ~~Indenture Trustee within 15 days after each Distribution Date~~Servicer, with a copy of the monthly statement to ~~the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may~~ be ~~required or permitted~~ furnished by ~~the Exchange Act and the Rules and Regulations of the Commission),~~ the Indenture Trustee ~~shall file a~~ to the Noteholders for such Payment Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-K, D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in ~~substance~~ Exhibit I as ~~required by applicable law or applicable Commission staff's interpretations~~the responsible entity for providing that information. The Indenture Trustee ~~shall prepare~~ will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 D Disclosure and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such ~~periodic reports~~ Form 10-D resulting from or relating to the Indenture Trustee's ’s inability or failure to obtain any information ~~not resulting~~ in a timely manner from ~~its own negligence or willful misconduct. The~~ the party responsible for delivery of such Additional Form 10-~~K shall also include a certification~~ D Disclosure. Within 5 calendar days after the related Determination Date, each entity that is indicated in Exhibit I as the ~~form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which~~ responsible entity for providing Additional Form 10-D Disclosure shall be ~~signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition,~~ required to provide to the Indenture Trustee ~~shall sign a certification (~~and the Depositor, to the extent known with respect to themselves, in an EXXXX compatible format, clearly identifying which item of Form 10-D the ~~form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers~~information relates to, ~~directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided~~any Additional Form 10-D Disclosure, ~~however, that the~~ if applicable. The Indenture Trustee shall ~~not undertake an analysis of any accountant's report attached as an exhibit~~ compile the information provided to it, prepare the Form 10-~~K).~~ D and no later than 5 calendar days prior to the 15th day after the related Payment Date forward the Form 10-D to the Depositor for verification with a copy to the Sponsor. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. An officer of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (dwith an original executed hard copy to follow by overnight mail) ~~In addition~~to the Indenture Trustee. For administrative convenience, ~~(i)~~ the Servicer may deliver executed signature pages to the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable be held by the Indenture Trustee as in escrow and attached to a ~~result of~~ Form 10-D only upon the ~~losses, claims, damages or liabilities of~~ Servicer’s electronic notification to the Indenture Trustee in authorizing such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithattachment. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Newcastle Mortgage Securities Trust 2006-1, Asset-Backed Notes, Series 2006-1)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agent and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in the form attached hereto as Exhibit ~~C-1~~ CC, on which the Certifying Person, the entity for which the Certifying Person acts as an officer (if the ~~"Certification"~~Certifying Person is an individual), ~~in compliance~~ and such entity's officers, directors and Affiliates (collectively with ~~Rules 13a-14 and 15d-14 under~~ the ~~Exchange Act and any additional directives~~ Certifying Person, "Certification Parties") can rely. The Master Servicer shall serve as the Certifying Person on behalf of the ~~Commission~~Trust. In addition, ~~which~~ if the Performing Party is the Special Servicer, such Performing Party shall ~~be signed by~~ execute a reasonable reliance certificate to enable the ~~senior officer~~ Certification Parties to rely upon each annual statement of compliance provided pursuant to Section 9.18, and shall include a certification that each such annual statement of compliance discloses any deficiencies or defaults described to the ~~Master Servicer~~ certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in ~~charge~~ Section 9.19. In the event any Performing Party is terminated or resigns pursuant to the terms of ~~securitization~~this Agreement, such Performing Party shall provide a Performance Certification to the Depositor pursuant to this Section 8.26(b) with respect to the period of time it was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith, and~~ the performance of such obligations. (iid) ~~the Master Servicer~~ Nothing contained in this Section 8.26 shall ~~indemnify and hold harmless the Indenture Trustee,~~ be construed to require any party to this Agreement other than the Master Servicer, ~~the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and~~ Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless than the Master Servicer, ~~then the Indenture Trustee agrees that it~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~contribute to the amount paid or payable by the Master Servicer~~ not be regarded as a ~~result~~ breach by such party of ~~the losses, claims, damages or liabilities~~ any of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's its obligations under this Agreement. This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2003-Top10)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the Depositor~~ Company in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the ~~Depositor or Issuer~~ Company (or such other entity). The ~~Depositor and the Issuer~~ Company hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the ~~Depositor and the Issuer~~Company. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture~~ Trustee from the ~~Depositor and the Issuer~~ Company of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's ’s report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ L-1 (the "“Certification"”), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (IMPAC Secured Assets Corp. Mortgage Pass-Through Certificates, Series 2005-1)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the ~~Issuer.~~ Issuer provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's ’s interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section 3.16 and the accountant's ’s report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "“Certification"”), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's ’s obligations under this Section 4.06 caused by the Indenture Trustee's ’s negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's ’s obligations under this Section 4.06 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's ’s obligations under this Section 4.06 caused by the Indenture Trustee's ’s negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's ’s obligations under this Section 4.06 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Impac CMB Trust Series 2005-8)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee (to the extent any information requested by the Depositor is actually in the possession of the Trustee) and the Master Servicer shall ~~reasonably~~ fully cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange ~~Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities~~ Act as ~~required~~ may be requested by the ~~Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable~~ Depositor pursuant to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of Section 3.26. (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx), and to the Depositor and the Certificate Insurer, to the extent known by a responsible party thereof, any Additional Form 10-D Disclosure, if applicable, clearly identifying which item of Form 10-D the information relates to. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee and the Certificate Insurer with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 30, 2008 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 30 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. On or ~~willful misconduct. The~~ prior to (x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx), and to the Certificate Insurer and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification”) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (dA) ~~In addition, (i) the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2007-2)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee (to the extent any information requested by the Depositor is actually in the possession of the Trustee) and the Master Servicer shall ~~reasonably~~ fully cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange ~~Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities~~ Act as ~~required~~ may be requested by the ~~Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable~~ Depositor pursuant to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of Section 3.26. (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the Depositor, to the extent known by a responsible party thereof, Additional Form 10-D Disclosure, if applicable, clearly identifying which item of Form 10-D the information relates to, any. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 30, 2008 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 30 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. On or ~~willful misconduct. The~~ prior to (x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (dc) ~~In addition,~~ (iA) ~~the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2007-1)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture~~ Within 15 days after each Distribution Date, the Trustee shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Trustee shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Trustee in XXXXX-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Trustee and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture~~ Trustee shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. ~~The Indenture~~ Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section 8.26. Neither the Trustee nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture~~ Trustee's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall ~~also~~ include a any certification ~~in the form attached hereto as Exhibit C-1~~ (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. An officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. On or before March 20th of each year with respect to which a Form 10-K is filed by the Trustee, as set forth above, the Master Servicer and the Special Servicer (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in ~~compliance~~ the form set forth on Exhibit CC hereto on which the Certifying Person, the Depositor (if the Certifying Person is an individual), and the Depositor's partner, representative, Affiliate, member, manager, director, officer, employee or agent (collectively with ~~Rules 13a-14 and 15d-14 under~~ the ~~Exchange Act and~~ Certifying Person, "Certification Parties") can rely. In addition, in the event that any ~~additional directives~~ Serviced Companion Mortgage Loan is deposited into a commercial mortgage securitization, on or before March 20th of ~~the Commission,~~ each year with respect to which ~~shall be signed~~ a Form 10-K is filed by the ~~senior officer of~~ related trustee for such commercial mortgage securitization, the Master Servicer and the Special Servicer, shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such commercial mortgage securitization a Performance Certification (which shall address the matters contained in ~~charge~~ the Performance Certification, but solely with respect to the related Serviced Companion Mortgage Loan) on which such Person and such Person's partner, representative, Affiliate, member, manager, director, officer, employee or agent can rely. Notwithstanding the foregoing, nothing in this paragraph shall require any Performing Party to (i) certify or verify the accurateness or completeness of ~~securitization~~any information provided to such Performing Party by third parties, (ii) to certify information other than to such Performing Party's knowledge and in accordance with such Performing Party's responsibilities hereunder or under any other applicable servicing agreement or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Performing Party have been completed except as they have been left blank on their face. In addition, if directed by the Depositor, such Performing Party shall provide an identical certification to Depositor's certified public accountants that such Performing Party provided to its own certified public accountants to the extent such certification relates to the performance of such Performing Party's duties pursuant to this Agreement or a modified certificate limiting the certification therein to the performance of such Performing Party's duties pursuant to this Agreement. In the event any Performing Party is terminated or resigns pursuant to the terms of this Agreement, such Performing Party shall provide a Performance Certification to the Depositor pursuant to this Section 8.26(b) with respect to the period of time such Performing Party was subject to this Agreement. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of ~~or based upon a~~ (i) an actual breach by the applicable Performing Party of ~~the Indenture Trustee's~~ its obligations under this Section ~~4.06 caused by the Indenture Trustee's~~ 8.26 or (ii) negligence, bad faith or willful misconduct on the part of the Performing Party in ~~connection therewith~~the performance of such obligations. (d) Nothing contained in this Section 8.26 shall be construed to require any party to this Agreement other than the Depositor, ~~and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective~~ or any of such party's officers, ~~directors and Affiliates from and against~~ to execute any ~~losses~~Form 10-K or any party to this Agreement other than the Depositor, ~~damages~~or any of such party's officers, ~~penalties~~to execute any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement other than the Depositor, ~~fines~~or any of such party's officers, ~~forfeitures~~to execute any Form 10-K or any party to this Agreement other than the Depositor, ~~reasonable and necessary legal fees and related costs~~or any of such party's officers, ~~judgments and other costs and expenses arising out of or based upon~~ to execute any Xxxxxxxx-Xxxxx Certification shall not be regarded as a breach by such party of ~~the Master Servicer's~~ any of its obligations under this Agreement. This Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 8.26 may be amended by the ~~Master Servicer~~parties hereto pursuant to Section 13.3 for purposes of complying with the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person without any Opinions of Counsel, ~~the Issuer and the Indenture Trustee without~~ Officer's Certificates, Rating Agency Confirmations or the consent of ~~the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law~~any Certificateholder, ~~the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect~~ notwithstanding anything to the ~~Trust~~contrary contained in this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Capital I Tr 2004-Hq3)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust.. 37 (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2003 11)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the Depositor~~ Company in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the ~~Depositor or Issuer~~ Company (or such other entity). The ~~Depositor and the Issuer~~ Company hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the ~~Depositor and the Issuer~~Company. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture~~ Trustee from the ~~Depositor and the Issuer~~ Company of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's ’s report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ L-1 (the "“Certification"”), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (d) In addition, (i) the ~~Indenture~~ Trustee shall indemnify and hold harmless the Master Servicer and the ~~Depositor~~ Company and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture~~ Trustee's ’s obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's ’s negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the ~~Indenture~~ Trustee, the Master Servicer, the ~~Issuer~~ Company and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's ’s obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the ~~Indenture~~ Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the ~~Indenture~~ Trustee on the other in connection with a breach of the ~~Indenture~~ Trustee's ’s obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's ’s negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Indenture~~ Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's ’s obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's ’s negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the ~~Indenture~~ Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit ~~C-1~~L-1, or other form as indicated by the Commission for this purpose. In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-3~~L-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's ’s report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic Documents~~Agreement, the provisions of this Section ~~4.06~~ 3.25 may be amended by the Master Servicer, the ~~Issuer~~ Company and the ~~Indenture~~ Trustee without the consent of the ~~Securityholders~~Certificateholders. (g) Prior to January 30th of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2005-2)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare Certificate Administrator shall, on behalf of the Company and in respect of the Trust Fund, sign and cause to be filed with the Commission any ~~Forms 8-K and 10-K customary for similar securities as~~ periodic reports required by to be filed under the provisions of the Exchange ~~Act~~ Act, and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission ~~thereunder~~thereunder including, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms without limitation, reports on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, ~~in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the~~ Form 10-K D and ~~provide the Master Servicer~~ Form 8-K. In connection with the ~~Form 10-K no later than March 20th~~ preparation and filing of such periodic reports, the Trustee shall timely provide to the Certificate Administrator (i) a list of Certificateholders as shown on the Certificate Register as of the end of each calendar year~~. The Master Servicer shall execute such Form 10-K upon its receipt~~ , (ii) copies of all pleadings, other legal process and ~~shall provide~~ any other documents relating to any claims, charges or complaints involving the ~~original~~ Trustee, as trustee hereunder, or the Trust Fund that are received by the Trustee, (iii) notice of ~~such executed Form 10-K~~ all matters that, to the ~~Indenture~~ actual knowledge of a Responsible Officer of the Trustee, have been submitted to a vote of the Certificateholders, other than those matters that have been submitted to a vote of the Certificateholders at the request of the Company or the Certificate Administrator, and (iv) notice of any failure of the Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to make any distribution to the ~~extent they have been timely delivered to~~ Certificateholders. Neither the ~~Indenture Trustee. If they are not so timely delivered,~~ Certificate Administrator nor the ~~Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture~~ Trustee shall have no any liability with respect to ~~any~~ the Certificate Administrator’s failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee's~~ Certificate Administrator’s inability or failure to obtain any information not resulting from ~~its~~ the Certificate Administrator’s own negligence or willful misconduct~~. The~~ . (b) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall ~~also include a certification~~ include, with respect to the Certificates relating to such 10-K: (i) A certification, signed by the senior officer in charge of the servicing functions of the Certificate Administrator, in the form ~~attached hereto as Exhibit C-1~~ required or permitted by the Commission (the "“Form 10-K Certification"”), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed~~ . (ii) A report regarding its assessment of compliance during the preceding calendar year with all applicable servicing criteria set forth in relevant Commission regulations with respect to mortgage-backed securities transactions taken as a whole involving the Certificate Administrator that are backed by the ~~senior officer~~ same types of assets as those backing the ~~Master Servicer~~ certificates, as well as similar reports on assessment of compliance received from other parties participating in ~~charge~~ the servicing function as required by relevant Commission regulations, as described in Item 1122(a) of ~~securitization~~Regulation AB. The Certificate Administrator shall obtain from all other parties participating in the servicing function any required certifications. (iii) With respect to each assessment report described immediately above, a report by a registered public accounting firm that attests to, and reports on, the assessment made by the asserting party, as set forth in relevant Commission regulations, as described in Regulation 1122(b) of Regulation AB and Section 3.06. (iv) The servicer compliance certificate required to be delivered pursuant Section 3.06. (c) In ~~addition~~connection with the Form 10-K Certification, the ~~Indenture~~ Trustee shall ~~sign~~ provide the Certificate Administrator with a back-up certification (substantially in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K).C. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this This Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 4.05 may be amended ~~by the Master Servicer, the Issuer and the Indenture Trustee~~ in accordance with this Agreement without the consent of the ~~Securityholders~~Certificateholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Trust Agreement (Residential Accredit Loans Inc)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the ~~Issuer.~~ Issuer provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Impac CMB Trust Series 2005-2, Collateralized Asset-Backed Bonds, Series 2005-2)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the ~~Issuer.~~ Issuer provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the ~~Securityholders~~Securityholders but with the consent of the Bond Insurer. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2004-11)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the ~~Issuer.~~ Issuer provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.Master

Appears in 1 contract

Samples: Servicing Agreement (Impac CMB Trust Series 2005-3, Collateralized Asset - Backed Bonds, Series 2005-3)

Exchange Act Reporting. ~~(a)~~ The Indenture Trustee and the ~~Master~~ Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the ~~Trust's satisfying~~ satisfaction of the Depositor’s reporting requirements under the Exchange ~~Act~~Act with respect to the Issuer. ~~The~~ So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall ~~prepare~~ promptly notify the Depositor, and, in the case of an event reportable on ~~behalf~~ the Form 8-K, not later than two Business Days after its occurrence, of any event reportable on the Exchange Act Reports of which such Person (or in the case of the ~~Trust any Forms 8-K~~ Indenture Trustee, a Responsible Officer of such Person) has knowledge. In addition, if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and ~~10-K customary for similar securities~~ the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as ~~required~~ may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the ~~Rules~~ extent such Person is a party (and ~~Regulations~~ the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in XXXXX-compatible form. Each of the ~~Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf~~ acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor ~~or Issuer~~ in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB and related rules and regulations. Without limiting the generality of the foregoing, so long as the Depositor is required to file Exchange Act Reports: (~~or such other entity). The Depositor and the Issuer hereby grant to~~ a) No later than each Determination Date, each of the Indenture Trustee ~~a limited power~~ and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of ~~attorney to execute~~ any Form 810-~~K and file each~~ D Disclosure Item with respect to such ~~document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of~~ Person (~~i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or in the ~~Indenture to the contrary, the Master Servicer, and not~~ case of the Indenture Trustee, ~~shall be responsible for executing each~~ a Responsible Officer of such Person), together with a description of any such Form 10-~~K filed on behalf~~ D Disclosure Item in form and substance reasonably acceptable to the Depositor. In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the ~~Trust~~Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be provided concurrently with the statements to Noteholders pursuant to Section 5.06, commencing with the first such report due not less than five (5) Business Days following such request. (b) Each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two (2) Business Days after its occurrence, of any Form 8-K ~~shall be filed by~~ Reportable Event of which such Person (or in the case of the Indenture Trustee, a Responsible Officer of such Person) has actual knowledge. Each Person, other than the Indenture Trustee ~~within 15 days after each Distribution Date~~as set forth above, ~~with a copy~~ shall be deemed to have actual knowledge of ~~the statement~~ any such event to the ~~Certificateholders for~~ extent that it relates to such ~~Distribution Date as an exhibit thereto. Prior~~ Person or any action or failure to act by such Person. (c) No later than March ~~30th~~ 15 of each ~~year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~year, commencing in 2014, the Indenture Trustee and the Servicer shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ notify the Depositor of any Form 10-K ~~and provide the Master Servicer~~ Disclosure Item, together with ~~the Form 10-K no later than March 20th~~ a description of ~~each year. The Master Servicer shall execute~~ any such Form 10-K ~~upon its receipt~~ Disclosure Item in form and substance reasonably acceptable to the Depositor. If any of the Item 1119 Parties have changed since the Closing Date, no later than February 1 of each year, commencing in 2014, the Depositor shall provide ~~the original~~ each of ~~such executed Form 10-K to~~ the Indenture Trustee ~~no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16~~ and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file Servicer with an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives updated list of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K)Item 1119 Parties. (d) ~~In addition~~On or before March 15 of each calendar year, commencing in 2014: (i) The Indenture Trustee shall deliver to the Depositor and the Servicer the Servicing Criteria Assessment. Such report shall be signed by an authorized officer of the Indenture Trustee and shall ~~indemnify and hold harmless~~ at a minimum address each of the ~~Master Servicer and~~ servicing criteria set forth in Item 1122(d) of Regulation AB delivered to the Depositor concurrently with the execution of this Agreement (provided that such certification may be revised after the date of this Agreement as agreed by the Depositor and ~~their officers, directors and Affiliates~~ the Indenture Trustee to reflect any guidance with respect to such criteria from ~~and against~~ the Commission). To the extent any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless Servicing Criteria are not applicable to the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon with respect to asset-backed securities transactions taken as a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then whole involving the Indenture Trustee and that are backed by the same asset type backing the Notes, such report shall include such a statement to that effect. The Indenture Trustee acknowledges and agrees that ~~it shall contribute to~~ the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand Depositor and the ~~Indenture Trustee on~~ Servicer with respect to its duties as the ~~other in connection with a breach~~ Certifying Person, and each of their respective officers and directors shall be entitled to rely upon each such servicing criteria assessment and the ~~Indenture Trustee's obligations under this~~ attestation delivered pursuant to Section ~~4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and~~ 4.11. (ii) ~~the indemnification provided for herein is unavailable or insufficient to hold harmless the~~ The Indenture ~~Trustee, then the Master Servicer agrees that it~~ Trustee shall ~~contribute~~ deliver to the ~~amount paid or payable~~ Depositor and the Servicer a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee ~~as a result~~ and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 13a-18 and 15d-18 of the ~~losses~~Exchange Act (or any successor provisions), ~~claims~~Rules 1-02(a)(3) and 2-02(g) of Regulation S-X (or any successor provisions) under the Securities Act and the Exchange Act, ~~damages or liabilities of~~ including, that, in the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language. (iii) In the event the Indenture Trustee in is terminated or resigns during the term of this Agreement, such ~~proportion as is appropriate~~ Person shall provide the documents and information pursuant to ~~reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under~~ this Section ~~4.06~~ with respect to the period of time it was subject to this Agreement or provided services with respect to the Issuer or the ~~Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~Receivables. (e) In The Indenture Trustee represents that: (i) there are no affiliations relating to the ~~event the Commission permits separate or split certifications to be made~~ Indenture Trustee with respect to ~~the items currently contained in the Certification,~~ any Item 1119 Party; (ii) there are no relationships or transactions with respect to any Item 1119 Party and the Indenture Trustee ~~shall provide a certification~~ that are outside the ordinary course of business or on terms other than would be obtained in an arm’s-length transaction with ~~respect to items 1 and 2 and~~ an unrelated third party, apart from the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of transactions contemplated under the Basic Documents, and that are material to the ~~provisions~~ investors’ understanding of ~~this Section 4.06 may be amended by~~ the ~~Master Servicer~~Notes; and (iii) no litigation is pending or, to the ~~Issuer and~~ best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee ~~without~~ that, if determined adversely to the ~~consent~~ Indenture Trustee, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of ~~the Securityholders. (g) Prior to January 30th of the first year in which~~ the Indenture Trustee ~~is able~~ to ~~do so~~ perform its obligations under ~~applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust~~this Agreement.

Appears in 1 contract

Samples: Sale and Servicing Agreement (California Republic Funding LLC)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicers, the Special Servicer, the Certificate Administrator, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Exchange Act. ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Certificate Administrator shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Certificate Administrator shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Certificate Administrator Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Certificate Administrator in Xxxxx- -252- compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Certificate Administrator and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Certificate Administrator shall prepare and file an Annual Report on Form 10-K (a "Form 10-K"), in substance as required by applicable law or and applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under Section ~~3.16~~ 3.13 and ~~the~~ each accountant's report described under Section ~~3.17~~3.14, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Certificate Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Certificate Administrator shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Certificate Administrator. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section. The ~~Indenture Trustee~~ Certificate Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from ~~or relating to~~ the ~~Indenture Trustee~~Certificate Administrator's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Certificate Administrator is able to do so under applicable law, the Certificate Administrator shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act and shall provide the Special Servicer and the Master Servicers with written notice of such filing. (b) The Form 10-K shall ~~also~~ include a any certification ~~in the form attached hereto as Exhibit C-1~~ (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff). Each Master Servicer, the Special Servicer and the Certificate Administrator (each, a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in ~~compliance with Rules 13a-14~~ form and ~~15d-14 under~~ substance reasonably satisfactory to the ~~Exchange Act~~ Depositor and ~~any additional directives of~~ the ~~Commission~~Performing Party, upon which ~~shall be signed by~~ the ~~senior officer of the Master Servicer in charge of securitization. (c) In addition~~Certifying Person, the ~~Indenture Trustee shall sign a certification~~ entity for which the Certifying Person acts as an officer (in if the ~~form attached hereto as Exhibit C-2) for the benefit of the Master Servicer~~ Certifying Person is an individual), and ~~its~~ such entity's officers, directors and Affiliates ~~regarding certain aspects of items 1 through 3~~ (collectively with the Certifying Person, "Certification Parties") can rely, relating to the accuracy and completeness of the ~~Certification (~~information and reports provided under this Agreement by such Performing Party; provided, however, that the ~~Indenture Trustee~~ certification required from the Special Servicer shall ~~not undertake an analysis~~ contain the following information: (i) a statement acknowledging that the officer of ~~any accountant's report attached as an exhibit to~~ the Special Servicer signing such certification has reviewed the information provided by it for inclusion in the Form 10-K to be covered by the subject Xxxxxxxx-Xxxxx Certification; (ii) a statement, based on the knowledge of the officer of the Special Servicer that is signing such certification, that the information provided by it to be covered by such Xxxxxxxx-Xxxxx Certification solely relating to actions of the Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties, taken as a whole, does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements made, not misleading as of the last day of the period covered by the subject Form 10-K); (iii) a statement, based on the knowledge of the officer of the Special Servicer that is signing such certification, that the information provided by it and to be covered by such Xxxxxxxx-Xxxxx Certification relating solely to actions of the Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties, includes all information of such type available to the Special Servicer and required to be included in the Certificate Administrator Reports for the relevant period covered by the subject Form 10-K; and (iv) a statement, based on the knowledge of the officer of the Special Servicer that is signing such certification, that the Special Servicer has disclosed all significant deficiencies relating to the Special Servicer's compliance with the minimum servicing standards during the period covered by the subject Form 10-K in the report provided by an independent public accountant, after conducting a review in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar procedure, as set forth in this Agreement. Notwithstanding the foregoing, nothing in this paragraph shall require any Performing Party to (i) certify or verify the accurateness or completeness of any information provided to such Performing Party by third parties, (ii) to certify information other than to such Performing Party's knowledge or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Performing Party have been completed except as they have been left blank on their face. In addition, if the Performing Party is a Master Servicer or the Special Servicer, such Performing Party shall, upon request, execute a reasonable reliance certificate acknowledging the Certification Party's right to rely upon the Annual Compliance Certificate provided pursuant to Section 3.13, and shall include a certification, based on the knowledge of the officer that is signing such certification, that such Annual Compliance Certificate discloses any significant deficiencies or defaults described to the certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in Section 3.14. In addition, in the event that a Serviced Non-Pooled Pari Passu Companion Loan is deposited into a commercial mortgage securitization, on or before March 20th of each year with respect to which a Form 10-K is filed by the related trustee for such commercial mortgage securitization, the applicable Master Servicer and the Special Servicer, shall, upon request, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such commercial mortgage securitization a certification in form and substance reasonably satisfactory to the depositor of such commercial mortgage securitization and the applicable Master Servicer or the Special Servicer, as applicable, with respect to such Serviced Non-Pooled Pari Passu Companion Loan, on which such Person and such Person's partner, representative, Affiliate, member, manager, director, officer, employee or agent can rely. (dc) ~~In addition, (i) the Indenture Trustee~~ Each Performing Party shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of ~~or based upon a~~ an actual breach of the ~~Indenture Trustee~~applicable Performing Party's obligations under subsection (b) of this Section ~~4.06 caused by~~ or the ~~Indenture Trustee~~applicable Performing Party's negligence, bad faith or willful misconduct in connection ~~therewith~~with such obligations. (d) Nothing contained in this Section shall be construed to require any party to this Agreement, ~~and (ii) the Master Servicer~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement, or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~indemnify and hold harmless the Indenture Trustee~~not be regarded as a breach by such party of any of its obligations under this Agreement. The Depositor, ~~the~~ each Master Servicer, the ~~Issuer~~ Special Servicer and ~~their respective officers, directors and Affiliates~~ the Certificate Administrator hereby agree to negotiate in good faith with respect to compliance with any further guidance from ~~and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ the Commission or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute its staff relating to the ~~amount paid or payable by the Master Servicer as a result~~ execution of ~~the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand~~ any Form 10-K and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such matters, this Agreement shall be amended to reflect such agreement pursuant to Section 11.01, which amendment shall not require any Opinions of Counsel, Officer's Certificates, Rating Agency confirmations or the ~~Commission permits separate or split certifications to be made with respect~~ consent of any Certificateholder, notwithstanding anything to the ~~items currently~~ contrary contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this ~~purpose~~Agreement. In ~~addition,~~ no event shall the ~~Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master~~ Special Servicer ~~and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of~~ be required to execute any ~~accountant's report attached as an exhibit to the~~ Form 10-K)K or any Xxxxxxxx-Xxxxx Certification. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)

Exchange Act Reporting. (a) The ~~Indenture Trustee and the~~ Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereundershall, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and in respect of the ~~Issuer. Such power~~ Trust Estate, sign and cause to be filed with the Commission any periodic reports required to be filed under the provisions of ~~attorney~~ the Exchange Act, and the rules and regulations of the Commission thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with the preparation and filing of such periodic reports, the Indenture Trustee shall ~~continue until~~ timely provide to the ~~earlier~~ Master Servicer (I) a list of Securityholders as shown on the Certificate Register and the Note Register as of the end of each calendar year, (iII) ~~receipt~~ copies of all pleadings, other legal process and any other documents relating to any claims, charges or complaints involving the Indenture Trustee, as trustee hereunder, or the Trust Estate that are received by the Indenture ~~Trustee from~~ Trustee, (III) notice of all matters that, to the actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted to a vote of the Securityholders, other than those matters that have been submitted to a vote of the Securityholders at the request of the Depositor ~~and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or ~~in the Indenture to the contrary,~~ the Master Servicer, and ~~not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf~~ (IV) notice of ~~the Trust. (b) Each Form 8-K shall be filed by~~ any failure of the Indenture Trustee ~~within 15 days after each Distribution Date, with a copy of the statement~~ to make any distribution to the ~~Certificateholders for such Distribution Date~~ Securityholders as ~~an exhibit thereto~~required pursuant to this Agreement. ~~Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ Neither the ~~Exchange Act and the Rules and Regulations of the Commission),~~ Master Servicer nor the Indenture Trustee shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer~~ have any liability with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to ~~the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits~~ the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Master Servicer's inability or failure to obtain any information not resulting from ~~its~~ the Master Servicer's own negligence or willful misconduct~~. The~~ (b) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall ~~also include a certification~~ include: (i) A certification, signed by the senior officer in charge of the servicing functions of the Master Servicer, in the form attached ~~hereto~~ as Exhibit ~~C-1~~ E hereto or such other form as may be required or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by~~ . (ii) A report regarding its assessment of compliance during the ~~senior officer of~~ preceding calendar year with all applicable servicing criteria set forth in relevant Commission regulations with respect to mortgage-backed securities transactions taken as a whole involving the Master Servicer ~~in charge~~ that are backed by the same types of ~~securitization. (c) In addition~~assets as those backing the certificates, ~~the Indenture Trustee shall sign a certification (~~as well as similar reports on assessment of compliance received from other parties participating in the ~~form attached hereto~~ servicing function as ~~Exhibit C-2) for the benefit of the Master Servicer and its officers~~required by relevant Commission regulations, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as ~~an exhibit to the Form 10-K~~described in Item 1122(a). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Home Equity Loan Trust 2006-Hsa5)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of . (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“EDGXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee and the Depositor, to the extent known by a responsible party thereof, clearly identifying which item of Form 10-D the information relates to, any Additional Form 10-D Disclosure, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. 108 (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 31, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 31 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. 109 On or ~~willful misconduct. The~~ prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 31 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. 110 (dc) ~~In addition,~~ (iA) ~~the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-1)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, within 5 calendar days after the related Distribution Date, (A) the parties set forth in Exhibit O shall be required to provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in EXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit O hereto of their respective duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. Within two Business Days after receipt of such copy, but no later than the 12th calendar day after the Distribution Date (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to the 12th calendar day after such Distribution Date), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator (in writing, in the case of the Depositor, which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than the ~~Exchange Act and~~ 13th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(b)(vii) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to ~~obtain~~ receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on EXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) parties set forth in Exhibit O shall be required to provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in EXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review no later than noon New York City time on the third Business Day after the Reportable Event. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on EXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (~~g) Prior~~ i)On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (TBW Mortgage-Backed Trust Series 2006-5)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section ~~3.16~~ 3.20 and the accountant's report described under Section ~~3.17~~3.21, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission,~~ which shall be signed by the senior officer of the ~~Master Servicer~~ Depositor in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates regarding certain aspects ~~of items 1 through 3~~ of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of ~~any~~ the accountant's report attached as an exhibit to the Form 10-K). . The Indenture Trustee's certification shall be delivered to the Depositor by no later than March 19th of each year (dor if such day is not a Business Day, the immediately preceding Business Day) and the Depositor shall deliver the Certification to the Indenture Trustee for filing no later than March 20th of each year (or if such day is not a Business Day, the immediately preceding Business Day). In addition, ~~(i)~~ the Indenture Trustee shall indemnify and hold harmless the ~~Master Servicer and the~~ Depositor and ~~their~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section ~~4.06 caused by~~ 4.02(c) or the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith~~, and (ii) the Master Servicer~~ . The Depositor shall indemnify and hold harmless the Indenture ~~Trustee, the Master Servicer, the Issuer~~ Trustee and ~~their respective~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Master Servicer~~Depositor's obligations under this Section ~~4.06~~ 4.02 or the ~~Master Servicer~~Depositor's negligence, bad faith or willful misconduct in connection therewith. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Master Servicer~~Depositor or the Indenture Trustee, as applicable, then the other party, in connection with a breach of its respective obligations under this Section 4.02 with respect to the Depositor or Section 4.02(c) with respect to the Indenture Trustee or its respective negligence, bad faith or willful misconduct in connection therewith, agrees that it shall contribute to the amount paid or payable by the ~~Master Servicer~~ other party as a result of the losses, claims, damages or liabilities of the ~~Master Servicer~~ other party in such proportion as is appropriate to reflect the relative fault and the relative benefit of the ~~Master Servicer~~ Depositor on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithother. (ed) In Upon any filing with the ~~event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification~~Securities and Exchange Commission, the Indenture Trustee shall ~~provide~~ promptly deliver to the Depositor a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (New Century Home Equity Loan Trust, Series 2004-3)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Trust 2007-3)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-2 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in EXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on EXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-2 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in EXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on EXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (gi) ~~Prior~~ On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-2)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the “Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder”). (i) Within 15 days after each Payment Date, ~~and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and~~ the Indenture Trustee ~~shall~~ shall, in accordance with industry standards, file (with the Commission via the ~~Commission's~~ Electronic Data Gathering and Retrieval ~~System) such forms~~ System (“EXXXX”), a Distribution Report on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be filed~~ D, signed by the ~~Indenture Trustee within 15 days after each Distribution Date~~Depositor, with a copy of the monthly statement to be furnished by the ~~Certificateholders~~ Indenture Trustee to the Noteholders for such ~~Distribution Date~~ Payment Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit F as the responsible entity for providing that information in an ~~exhibit thereto~~EXXXX compatible format. Within 5 calendar days after the related Determination Date, each entity that is indicated in Exhibit F as the responsible entity for providing Additional Form 10-D Disclosure shall be required to provide to the Indenture Trustee and the Depositor, to the extent known, in an EXXXX compatible format, clearly identifying which item of Form 10-D the information relates to, any Additional Form 10-D Disclosure, if applicable. The Indenture Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 15th calendar day after the related Payment Date, an officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Indenture Trustee. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit F as the responsible entity for providing that information in an EXXXX compatible format. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit F as the responsible entity for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file a Form 15 Suspension Notice with respect to the Trust, if applicable. Prior to (x) March ~~30th~~ 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year ~~(or such earlier date as may~~ thereafter, the Master Servicer shall provide the Indenture Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be ~~required or permitted~~ delivered by the ~~Exchange Act~~ Master Servicer pursuant to Sections 3.20 and ~~the Rules~~ 3.21 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March 31, 2007 and ~~Regulations~~ (y) unless and until a Form 15 Suspension Notice shall have been filed, March 31 of ~~the Commission)~~each year thereafter, the Indenture Trustee shall file a Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-~~K ~~and provide the Master Servicer~~ with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust. Such Form 10-K shall include ~~as exhibits~~ the ~~Master Servicer's annual statement~~ Assessments of ~~compliance described under Section 3.16~~ Compliance, Attestation Reports, Annual Compliance Statements and other documentation required by Sections 3.20 and 3.21 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and the ~~accountant's report described under Section 3.17,~~ Form 10-K certification in ~~each case to~~ the ~~extent they have been timely delivered~~ form attached hereto as Exhibit C-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Depositor (with a copy to the Indenture Trustee. ) shall receive the items described in the preceding sentence no later than March 15 of each calendar year prior to the filing deadline for the Form 10-K. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the Indenture Trustee shall cooperate with the Depositor to file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. Prior to (x) March 1, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 1 of each year thereafter, each entity that is indicated in Exhibit F as the responsible entity for providing any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be required to provide to the Indenture Trustee and the Depositor, in an EXXXX compatible format, to the extent known, the form and substance of any Additional Form 10-K Disclosure Information, if applicable. The Indenture Trustee shall ~~have no liability with respect~~ compile the information provided to ~~any failure to properly~~ it, prepare ~~or file such periodic reports resulting from or relating to~~ the ~~Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The~~ Form 10-K ~~shall also include a certification in~~ and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as to form ~~attached hereto~~ and substance, or disapprove, as ~~Exhibit C-1 (~~the ~~"Certification"), in compliance with Rules 13a-14~~ case may be and ~~15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Indenture Trustee by no later than March 25 of the relevant year (or the immediately preceding Buisness Day if March 25 is not a Business Day). The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Indenture Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Noteholder upon request. Any expenses incurred by the Indenture Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Indenture Trustee out of ~~securitization. (c) In addition,~~ the Trust. The Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K). Such certification shall be delivered to the Depositor by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit C-1 shall be delivered to the Indenture Trustee by March 15th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). (dA) ~~In addition, (i) the Indenture Trustee~~ The Depositor shall indemnify and hold harmless the ~~Master Servicer~~ Indenture Trustee and ~~the Depositor and their~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture Trustee's~~ Depositor’s obligations under this Section ~~4.06 caused by~~ 4.02 or the ~~Indenture Trustee's~~ Depositor’s negligence, bad faith or willful misconduct in connection therewith~~, and~~ . (iiB) ~~the Master Servicer~~ The Indenture Trustee shall indemnify and hold harmless the ~~Indenture Trustee, the Master Servicer, the Issuer~~ Depositor and ~~their~~ its respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) a breach of the ~~Master Servicer's~~ Indenture Trustee’s obligations under this Section ~~4.06 or~~ 4.02 caused by the ~~Master Servicer's~~ Indenture Trustee’s negligence, bad faith or willful misconduct in connection ~~therewith.~~ therewith or (ii) any material misstatement or omission in the Assessment of Compliance delivered by the Indenture Trustee pursuant to Section 3.21, and (C) the Master Servicer shall indemnify and hold harmless the Depositor, the Indenture Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section 3.20 or the Assessment of Compliance delivered by the Master Servicer pursuant to Section 3.21. (d) If ~~(i)~~ the indemnification provided for ~~herein~~ in Section 4.02(c)(A), (B) or (C) is unavailable or insufficient to hold harmless ~~the Master Servicer~~an indemnified party under Sections 4.02(c)(A), (B) or (C) above, then ~~the Indenture Trustee agrees that it~~ each indemnifying party shall contribute to the amount paid or payable by ~~the Master Servicer~~ such indemnified party as a result of the losses, claims, damages or liabilities ~~of the Master Servicer~~ referred to in Section 4.04(c)(A), (B) or (C) above in such proportion as is appropriate to reflect (1) the relative fault and benefits of (a) the ~~Master Servicer~~ indemnifying party on the one hand and (b) the ~~Indenture Trustee~~ indemnified party on the other ~~in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence~~hand, ~~bad faith or willful misconduct in connection therewith and~~ as well as (ii2) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the any other ~~in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~relevant equitable considerations. (e) In The Indenture Trustee will have no duty to verify the ~~event the Commission permits separate~~ accuracy or ~~split certifications to be made~~ sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10-D or Form 10-K resulting from or relating to the ~~items currently contained~~ Indenture Trustee’s inability or failure to obtain any information in a timely manner from the ~~Certification~~party responsible for delivery of such disclosure information. The Indenture Trustee shall have no liability with respect to any failure to properly file any Form 10-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Indenture Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (f) Upon any filing with the Securities and Exchange Commission, the Indenture Trustee shall ~~provide~~ promptly deliver to the Depositor a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (New Century Home Equity Loan Trust 2006-S1)

Exchange Act Reporting. SECTION 11.01 Form 10-D Reporting Within 15 days after each Distribution Date (~~a) The Indenture Trustee~~ subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the ~~Master Servicer shall reasonably cooperate with~~ Trust Fund any Form 10-D required by the ~~Issuer~~ Exchange Act, in form and ~~the Depositor in connection with the Trust's satisfying the reporting requirements under~~ substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare on behalf~~ file each Form 10-D with a copy of the ~~Trust any Forms 8-K and~~ related Monthly Statement attached thereto. Any disclosure in addition to the Monthly Statement that is required to be included on Form 10-~~K customary~~ D (“Additional Form 10-D Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for ~~similar securities~~ any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as ~~required by~~ set forth in the next paragraph. As set forth on Exhibit N hereto, within 5 calendar days after the related Distribution Date of each month that the Trust is subject to the Exchange Act reporting requirements, (i) the parties set forth thereon shall be required to provide to the Securities Administrator and the ~~Rules~~ Depositor, to the extent a Responsible Officer of such party has knowledge, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and ~~Regulations~~ such party, a notice in the form of Exhibit R hereto (an “Additional Disclosure Notification”) together with, the form and substance of any Additional Form 10-D Disclosure, if applicable to such party and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the ~~Commission thereunder~~Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D, but no later than the 12th calendar day after the related Distribution Date, the Securities Administrator shall forward electronically a copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) for review. By the 13th calendar day after the related Distribution Date, the Depositor shall notify the Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of any receipt of any written changes or approval from the Depositor by the 13th calendar day after the related Distribution Date, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the Securities Administrator may proceed with the execution and filing of the Form 10-D. A duly authorized officer of the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be~~ D filed by the ~~Indenture Trustee within 15~~ Securities Administrator. Each party to this Agreement acknowledges that the performance by the Securities Administrator and the Master Servicer of its duties under this Section 11.01 related to the timely preparation, execution and filing of Form 10-D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Section 11.01. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, timely execute and/or timely file such Form 10-D, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. SECTION 11.02 Form 10-K Reporting Within 90 days after the end of each ~~Distribution Date, with a copy~~ fiscal year of the ~~statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (~~Trust or such earlier date as may be required ~~or permitted~~ by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2007, the Securities Administrator shall prepare and ~~the Rules and Regulations~~ file on behalf of the ~~Commission), the Indenture Trustee shall file~~ Trust a Form 10-K, in form and substance as required by ~~applicable law or applicable Commission staff's interpretations~~the Exchange Act. ~~The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute~~ Each such ~~Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such~~ Form 10-K shall include ~~as exhibits~~ the ~~Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Indenture Trustee. If they are not so timely delivered~~Securities Administrator within the applicable time frames set forth in this Agreement and the related Purchase and Servicing Agreement or Servicing Agreement, as applicable, (i) the Item 1123 Certification for each Servicer, each Servicing Function Participant, the ~~Indenture Trustee shall file~~ Master Servicer and the Securities Administrator as described under Section 11.05, (ii)(A) the Assessment of Compliance with servicing criteria for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.06, and (B) if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance is not included as an ~~amended~~ exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the Accountant’s Attestation for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.07, and (B) if any Accountant’s Attestation identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such Accountant’s Attestation is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.08 (provided, however, that the Securities Administrator, in its reasonable discretion, may omit from the Form 10-K, any Assessment of Compliance or Accountant’s Attestation that is not required to be filed with such Form 10-K ~~including such documents as exhibits reasonably promptly after they are delivered~~ pursuant to Regulation AB). Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Indenture Trustee~~following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, no later than March 15 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-K Disclosure, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. After preparing the Form 10-K, but no later than March 23rd of each year, the Securities Administrator shall forward electronically a draft copy of the Form 10-K to the Depositor (provided that such Form 10-K includes any Additional Form 10-K Disclosure) for review. At least four Business Days before the filing deadline, the Depositor shall notify the Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-K. In the absence of any receipt of any written changes or approval from the Depositor by the close of business on the fourth Business Day prior to the 10-K Filing Deadline, the Securities Administrator shall be entitled to assume that such Form 10-K is in final form and the Securities Administrator may proceed with the execution and filing of the Form 10-K. A senior officer of the Master Servicer shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-K filed by the Securities Administrator. The ~~Indenture Trustee~~ parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.02 related to the timely preparation, execution and filing of Form 10-K is contingent upon such parties (and any Servicing Function Participant) strictly observing all applicable deadlines in the performance of their duties under Article XI. Neither the Master Servicer nor the Securities Administrator shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-K, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful ~~misconduct~~ misconduct. SECTION 11.03 Form 8-K Reporting Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection ~~therewith~~with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. As set forth on Exhibit N hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of a Reportable Event (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R attached hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. After preparing the Form 8-K, the Securities Administrator shall forward electronically a draft copy of the Form 8-K to the Depositor for review. Promptly upon receipt of such copy, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall notify the Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 8-K. In the absence of any receipt of any written changes or approval from the Depositor, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with the execution and filing of the Form 8-K. A duly authorized officer of the Master Servicer shall ~~indemnify and hold harmless the Indenture Trustee~~sign each Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the ~~Master Servicer~~Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the ~~Issuer~~ Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.03 related to the timely preparation, execution and filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their ~~respective officers~~duties under this Section 11.03. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, ~~directors and Affiliates from and against any losses~~expense, ~~damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Master Servicer's obligations under this Section 4.06~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or ~~the Master Servicer's~~ file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Alternative Loan Trust 2006-S2)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-5 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on XXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York City time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-5 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York City time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on XXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (gi) ~~Prior~~ On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-5)

Appears in 1 contract

Samples: Servicing Agreement (Impac CMP Trust Series 2004-5)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee Administrator shall prepare or cause to be prepared on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Administrator shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the ~~Indenture Trustee~~ Administrator shall file or cause to be filed (via the Securities and Exchange Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the ~~Indenture Trustee~~ Administrator a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture Trustee~~ Servicer from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Administrator, and not the ~~Indenture Trustee~~Servicer, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture Trustee~~ Administrator or its delegatee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), beginning in 20__, the ~~Indenture Trustee~~ Administrator shall file (or cause to be filed) a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission ~~staff's~~ staffs interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the ~~Master~~ Servicer's annual statement of compliance described under Section ~~3.16~~ 3.15 and the accountant's report described under Section ~~3.17~~3.16, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Administrator shall file (or cause to be filed) an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Administrator. The ~~Indenture Trustee~~ Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Administrator's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ C-l (the "Certification")~~, in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by the senior officer of the ~~Master Servicer in charge of securitization~~Administrator. (c) ~~In addition~~Upon any filing with the Securities and Exchange Commission, the ~~Indenture Trustee~~ Administrator shall ~~sign~~ promptly deliver to the Issuer a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~executed report, statement or information. (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Administrator shall file ~~with the Commission~~ (or cause to be filed) a Form ~~15D~~ 15 Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Origen Residential Securities, Inc.)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. , provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2005-1)

Exchange Act Reporting. ~~(a)~~ The Indenture Trustee and the ~~Master~~ Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the ~~Trust's satisfying~~ satisfaction of the Depositor’s reporting requirements under the Exchange ~~Act~~Act with respect to the Issuer. ~~The~~ So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall ~~prepare~~ promptly notify the Depositor, and, in the case of an event reportable on ~~behalf~~ the Form 8-K, not later than two (2) Business Days after its occurrence, of any event reportable on the Exchange Act Reports of which such Person (or in the case of the Indenture Trustee, a Trust ~~any Forms 8-K~~ Officer of the Indenture Trustee) has knowledge. In addition, if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and ~~10-K customary for similar securities~~ the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as ~~required~~ may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the ~~Rules~~ extent such Person is a party (and ~~Regulations~~ the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in XXXXX-compatible form. Each of the ~~Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf~~ acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor ~~or Issuer~~ in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB and related rules and regulations. Without limiting the generality of the foregoing, so long as the Depositor is required to file Exchange Act Reports: (~~or such other entity). The Depositor and the Issuer hereby grant to~~ a) No later than each Determination Date, each of the Indenture Trustee ~~a limited power~~ and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of ~~attorney to execute~~ any Form 810-~~K and file each~~ D Disclosure Item with respect to such ~~document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of~~ Person (~~i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or in the ~~Indenture to the contrary, the Master Servicer, and not~~ case of the Indenture Trustee, ~~shall be responsible for executing each~~ a Trust Officer of the Indenture Trustee), together with a description of any such Form 10-~~K filed on behalf~~ D Disclosure Item in form and substance reasonably acceptable to the Depositor. In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the ~~Trust~~Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be provided concurrently with the statements to Noteholders pursuant to Section 5.06, commencing with the first such report due not less than five (5) Business Days following such request. (b) Each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two (2) Business Days after its occurrence, of any Form 8-K ~~shall be filed by~~ Reportable Event of which such Person (or in the case of the Indenture Trustee, a Trust Officer of the Indenture Trustee) has actual knowledge. Each Person, other than the Indenture Trustee ~~within 15 days after each Distribution Date~~as set forth above, ~~with a copy~~ shall be deemed to have actual knowledge of ~~the statement~~ any such event to the ~~Certificateholders for~~ extent that it relates to such ~~Distribution Date as an exhibit thereto. Prior~~ Person or any action or failure to act by such Person. (c) No later than March ~~30th~~ 15 of each ~~year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~year, commencing in 2016, the Indenture Trustee and the Servicer shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ notify the Depositor of any Form 10-K ~~and provide the Master Servicer~~ Disclosure Item, together with ~~the Form 10-K no later than March 20th~~ a description of ~~each year. The Master Servicer shall execute~~ any such Form 10-K ~~upon its receipt~~ Disclosure Item in form and substance reasonably acceptable to the Depositor. If any of the Item 1119 Parties have changed since the Closing Date, no later than February 1 of each year, commencing in 2016, the Depositor shall provide ~~the original~~ each of ~~such executed Form 10-K to~~ the Indenture Trustee ~~no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16~~ and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file Servicer with an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives updated list of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K)Item 1119 Parties. (d) ~~In addition~~On or before March 15 of each calendar year, commencing in 2016: (i) The Indenture Trustee shall deliver to the Depositor and the Servicer the Servicing Criteria Assessment. Such report shall be signed by an authorized officer of the Indenture Trustee and shall ~~indemnify and hold harmless~~ at a minimum address each of the ~~Master Servicer and~~ servicing criteria set forth in Item 1122(d) of Regulation AB delivered to the Depositor concurrently with the execution of this Agreement (provided that such certification may be revised after the date of this Agreement as agreed by the Depositor and ~~their officers, directors and Affiliates~~ the Indenture Trustee to reflect any guidance with respect to such criteria from ~~and against~~ the Commission). To the extent any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless Servicing Criteria are not applicable to the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon with respect to asset-backed securities transactions taken as a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then whole involving the Indenture Trustee and that are backed by the same asset type backing the Notes, such report shall include such a statement to that effect. The Indenture Trustee acknowledges and agrees that ~~it shall contribute~~ the Depositor and the Servicer with respect to ~~the amount paid or payable by the Master Servicer as a result~~ each of the ~~losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand~~ Depositor’s and the ~~Indenture Trustee on~~ Servicer’s duties as the ~~other in connection with a breach~~ Certifying Person, and each of their respective officers and directors shall be entitled to rely upon each such servicing criteria assessment and the ~~Indenture Trustee's obligations under this~~ attestation delivered pursuant to Section ~~4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and~~ 4.11. (ii) ~~the indemnification provided for herein is unavailable or insufficient to hold harmless the~~ The Indenture ~~Trustee, then the Master Servicer agrees that it~~ Trustee shall ~~contribute~~ deliver to the ~~amount paid or payable~~ Depositor and the Servicer a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee ~~as a result~~ and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 13a-18 and 15d-18 of the ~~losses~~Exchange Act (or any successor provisions), ~~claims~~Rules 1-02(a)(3) and 2-02(g) of Regulation S-X (or any successor provisions) under the Securities Act and the Exchange Act, ~~damages or liabilities of~~ including, that, in the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language. (iii) In the event the Indenture Trustee in is terminated or resigns during the term of this Agreement, such ~~proportion as is appropriate~~ Person shall provide the documents and information pursuant to ~~reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under~~ this Section ~~4.06~~ with respect to the period of time it was subject to this Agreement or provided services with respect to the Issuer or the ~~Master Servicer's negligence, bad faith or willful misconduct in connection therewith~~Receivables. (e) In The Indenture Trustee represents that: (i) there are no affiliations relating to the ~~event the Commission permits separate or split certifications to be made~~ Indenture Trustee with respect to ~~the items currently contained in the Certification,~~ any Item 1119 Party; (ii) there are no relationships or transactions with respect to any Item 1119 Party and the Indenture Trustee ~~shall provide a certification~~ that are outside the ordinary course of business or on terms other than would be obtained in an arm’s-length transaction with ~~respect to items 1 and 2 and~~ an unrelated third party, apart from the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of transactions contemplated under the Basic Documents, and that are material to the ~~provisions~~ investors’ understanding of ~~this Section 4.06 may be amended by~~ the ~~Master Servicer~~Notes; and (iii) no litigation is pending or, to the ~~Issuer and~~ best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee ~~without~~ that, if determined adversely to the ~~consent~~ Indenture Trustee, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of ~~the Securityholders. (g) Prior to January 30th of the first year in which~~ the Indenture Trustee ~~is able~~ to ~~do so~~ perform its obligations under ~~applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust~~this Agreement.

Appears in 1 contract

Samples: Sale and Servicing Agreement (California Republic Auto Receivables Trust 2015-2)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the~~ Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of . (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee and the Depositor, to the extent known by a responsible party thereof, clearly identifying which item of Form 10-D the information relates to, any Additional Form 10-D Disclosure, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 31, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 31 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. On or ~~willful misconduct. The~~ prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 31 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (dc) ~~In addition,~~ (iA) ~~the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-1)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the ~~Trust's~~ Trust(s satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the ~~Commission's~~ Commission(s Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the ~~Issuer.~~ Issuer provided that the Depositor shall file the initial Form 8-K. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staff(s interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master ~~Servicer's~~ Servicer(s annual statement of compliance described under Section 3.16 and the ~~accountant's~~ accountant(s report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture ~~Trustee's~~ Trustee(s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "(Certification"(), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any ~~accountant's~~ accountant(s report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture ~~Trustee's~~ Trustee(s obligations under this Section 4.06 caused by the Indenture ~~Trustee's~~ Trustee(s negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master ~~Servicer's~~ Servicer(s obligations under this Section 4.06 or the Master ~~Servicer's~~ Servicer(s negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture ~~Trustee's~~ Trustee(s obligations under this Section 4.06 caused by the Indenture ~~Trustee's~~ Trustee(s negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master ~~Servicer's~~ Servicer(s obligations under this Section 4.06 or the Master ~~Servicer's~~ Servicer(s negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any ~~accountant's~~ accountant(s report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp., Collateralized Asset-Backed Bonds, Series 2005-4)

Exchange Act Reporting. (a) ~~The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and~~ In order to facilitate compliance by the Depositor ~~in connection~~ with ~~the Trust's satisfying~~ the reporting requirements under the Exchange ~~Act. The Indenture Trustee shall prepare on behalf~~ Act with respect to the Issuer including the provisions of Regulation AB and related rules and regulations of the ~~Trust any Forms 8-K~~ Securities and ~~10-K customary for similar securities as required by~~ Exchange Commission, the ~~Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master~~ Servicer ~~shall sign (or shall cause another entity acceptable to the Commission to sign)~~ and the Indenture Trustee ~~shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of~~ agree to provide to the Depositor ~~or Issuer (or such~~ any and all statements, reports, certifications and other ~~entity). The Depositor and the Issuer hereby grant~~ information reasonably necessary to ~~the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of~~ permit the Depositor ~~and~~ to comply with the ~~Issuer. Such power of attorney shall continue until~~ Depositor’s reporting obligations under the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the TrustExchange Act. (b) ~~Each Form 8-K shall be filed by~~ So long as the ~~Indenture Trustee within 15 days after each Distribution Date,~~ Depositor is required to file any reports with ~~a copy of the statement~~ respect to the ~~Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ Issuer under the Exchange ~~Act and the Rules and Regulations of the Commission)~~Act, no later than each Payment Date, the Indenture Trustee ~~shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare~~ and the ~~Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master~~ Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 notify (and the ~~accountant's report described under Section 3.17~~Servicer shall cause any subservicer performing obligations of the Servicer hereunder to notify) the Depositor of any litigation or governmental proceedings pending against such Person, in each case that would be material to the ~~extent they have been timely delivered~~ Noteholders, together with a description of any such litigation or governmental proceedings in form and substance reasonably acceptable to the ~~Indenture Trustee~~Depositor. ~~If they are not~~ In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so ~~timely delivered~~requested by the Depositor, the ~~Indenture Trustee~~ Servicer shall ~~file an amended Form 10-K including~~ provide such ~~documents as exhibits reasonably promptly after they are delivered~~ information which is available to the ~~Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare~~ Servicer, without unreasonable effort or ~~file such periodic reports resulting from~~ expense, regarding the performance or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives servicing of the ~~Commission, which~~ Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB. Such information shall be ~~signed by~~ provided concurrently with the ~~senior officer of~~ statements to Noteholders pursuant to Section 5.6, commencing with the ~~Master Servicer in charge of securitization~~first such report due not less than five Business Days following such request. (c) ~~In addition~~So long as the Depositor is required to file any reports with respect to the Issuer under the Exchange Act, each of the Indenture Trustee and the Servicer shall ~~sign a certification~~ promptly notify the Depositor, but in no event later than one (~~in the form attached hereto as Exhibit C-2~~1) ~~for the benefit of the Master Servicer and~~ Business Day after its ~~officers~~occurrence, ~~directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis~~ of any ~~accountant's report attached as an exhibit~~ Reportable Event of which such Person has actual knowledge. Each Person shall be deemed to have actual knowledge of any such event to the ~~Form 10-K)~~extent that it relates to such Person or any action or failure to act by such Person. (d) ~~In addition~~So long as the Depositor is required to file any reports with respect to the Issuer under the Exchange Act, (i) ~~the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against~~ if any ~~losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach~~ of the ~~Indenture Trustee's obligations under this Section 4.06 caused by~~ Depositor, the ~~Indenture Trustee's negligence~~Servicer, ~~bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless~~ the Indenture Trustee, the ~~Master Servicer~~Owner Trustee or any other material transaction party that would be required to be disclosed in accordance with Item 1119 of Regulation AB has changed since the Closing Date or the date of the filing of the most recent Form 10-K with respect to the Issuer, no later than March 1 of each year, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it Depositor shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach notify each of the Indenture Trustee~~'s obligations under this Section 4.06 caused by~~ , the Owner Trustee and the Servicer of any such change in the Depositor, the Servicer, the Indenture Trustee~~'s negligence~~, ~~bad faith~~ the Owner Trustee or ~~willful misconduct in connection therewith~~ such other material transaction party and (ii) no later than March 15 of each year, commencing in 2007, the ~~indemnification provided for herein is unavailable~~ Indenture Trustee and the Servicer shall notify the Depositor of (A) any litigation or ~~insufficient~~ governmental proceedings pending against such Person, in each case that would be material to ~~hold harmless~~ the Noteholders and (B) any affiliations or relationships between such Person and any of the Depositor, the Servicer, the Indenture Trustee, ~~then~~ the ~~Master Servicer agrees that it shall contribute~~ Owner Trustee or such other material transaction party, together with a description of any such litigation, governmental proceedings or affiliation or relationship in form and substance reasonably acceptable to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithDepositor. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Sale and Servicing Agreement (JPMorgan Chase Bank, National Association)

Exchange Act Reporting. (ai) Within 15 days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Issuing Entity any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The ~~Indenture Trustee~~ Securities Administrator shall file each Form 10-D with a copy of the Distribution Date Statement for the related Distribution Date attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the party responsible for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. (ii) Within 5 calendar days after the related Distribution Date, (A) the Master Servicer, the Securities Administrator, the Issuing Entity and the Sponsor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-1 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-D Disclosure for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification in the form of Exhibit S hereto (an “Additional Disclosure Notification”) and (B) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (iii) After preparing the Form 10-D, the Securities Administrator shall forward electronically a draft copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the sentence after the following sentence (provided that, the Securities Administrator forwards a copy of the Form 10-D no later than 2 Business Days prior to such Business Day), the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer~~ Securities Administrator of any changes to or approval of such Form 10-D. In the absence of any written changes or approval within the same time, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Depositor in connection~~ Securities Administrator may proceed with arrangements for the ~~Trust's satisfying~~ execution of, and the ~~reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ filing of the ~~Trust any Forms 8-K and~~ Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorized representative of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (~~or shall cause another entity acceptable to the Commission to sign~~but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-K D prepared and filed ~~on behalf of~~ by the ~~Trust.~~ Securities Administrator. Form 10-D requires the registrant to indicate (bby checking “yes” or “no”) ~~Each Form 8-K shall~~ that it (1) has filed all reports required to be filed by ~~the Indenture Trustee within 15 days after each Distribution Date, with a copy~~ Section 13 or 15(d) of ~~the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ the Exchange Act ~~and~~ during the ~~Rules and Regulations of~~ preceding 12 months (or for such shorter period that the ~~Commission~~registrant was required to file such reports), and (2) has been subject to such filing requirements for the ~~Indenture Trustee~~ past 90 days. The Depositor shall ~~file~~ notify the Securities Administrator in writing, no later than the fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-~~K, in substance as required by applicable law or applicable Commission staff's interpretations~~D if the answer to the questions should be “no”. The ~~Indenture Trustee~~ Securities Administrator shall ~~prepare~~ be entitled to rely on the representations in Section 2.03(vi) or any such notice in preparing, executing and/or filing any such report. Each party to this Agreement acknowledges that the performance by the Master Servicer and Securities Administrator of its duties under this Section 3.23(a) related to the timely preparation, execution and filing of Form 10-~~K and provide~~ D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties as set forth in this Agreement. Neither the Securities Administrator nor the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-D, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee Securities Administrator shall not ~~undertake an analysis of~~ have any ~~accountant's report attached as an exhibit to the Form 10-K). (d) In addition,~~ liability for (i) the ~~Indenture Trustee~~ content of any information provided to the Securities Administrator for filing on a Form 10-D, (ii) determining what information is required to be filed on a Form 10-D, (iii) reformatting any information so that it is able to be filed on XXXXX, (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 10-D in the event that the relevant party does not deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. (i) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~indemnify~~ prepare and ~~hold harmless~~ file on behalf of the Issuing Entity any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next paragraph. (ii) For so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than 12:00 noon New York time on the 2nd Business Day after the occurrence of a Reportable Event (i) the Master Servicer, the Securities Administrator, the Issuing Entity and the Depositor hereby agree to, and the other parties to the American Home Mortgage Assets Trust 2007-1 transaction shall be required to, provide to the Securities Administrator and the Depositor, to the extent known by a responsible officer thereof, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information for which such party is responsible as set forth on Exhibit O hereto, if applicable, together with an Additional Disclosure Notification and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (iii) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the close of business New York City time on the third Business Day after the Reportable Event, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. In the absence of any written changes or approval within such timeframe, the Securities Administrator shall be entitled to assume that such Form 8-K is in final form and the Securities Administrator may proceed with arrangements for the execution of, and filing of, the Form 8-K. No later than 12:00 noon New York time on the 4th Business Day after the Reportable Event, a duly authorized representative of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.23(c)(ii). Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K that has been prepared and filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of their ~~officers~~respective duties under this Section 3.23(b) related to the timely preparation, ~~directors~~ execution and ~~Affiliates from and against~~ filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Agreement. Neither the Master Servicer nor the Securities Administrator shall have any ~~losses~~liability for any loss, ~~damages~~expense, ~~penalties~~damage, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purposemisconduct. In addition, the ~~Indenture Trustee~~ Securities Administrator shall ~~sign~~ not have any liability for (i) the content of any information provided to the Securities Administrator for filing on a ~~certification~~ Form 8-K, (ii) determining what information is required to be filed on a Form 8-K, (iii) reformatting any information so that it is able to be filed on XXXXX (iv) the failure to include any information if it is not provided to the Securities Administrator on a timely basis or (v) any late filing of a Form 8-K in the ~~form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however,~~ event that the ~~Indenture Trustee shall~~ relevant party does not ~~undertake an analysis of any accountant's report attached as an exhibit~~ deliver all information, data, signatures and exhibits required to be provided or filed on or prior to the ~~Form 10-K)~~second Business Day prior to the applicable filing deadline. (fc) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (~~g) Prior~~ i)On or prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Securities Administrator is able to do so under applicable law, the ~~Indenture Trustee~~ Securities Administrator shall prepare and file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Issuing Entity under the Exchange Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-1)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee (to the extent any information requested by the Depositor is actually in the possession of the Trustee) and the Master Servicer shall ~~reasonably~~ fully cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange ~~Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities~~ Act as ~~required~~ may be requested by the ~~Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable~~ Depositor pursuant to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of Section 3.26. (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the Depositor, to the extent known by a responsible party thereof, clearly identifying which item of Form 10-D the information relates to, any Additional Form 10-D Disclosure, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 30, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 30 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. On or ~~willful misconduct. The~~ prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (dc) ~~In addition,~~ (iA) ~~the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-4)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K K, or other comparable Form containing the same or comparable information or other information mutually agreed upon, (other than the initial report on Form 8-K) and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) The Depositor shall prepare and file or cause to be prepared and filed the initial current report on Form 8-K for the Issuer. Each Form 8-K thereafter shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. If expressly instructed in writing by the Depositor, the Indenture Trustee shall, in accordance with industry standards, prepare and deliver to the Depositor for execution a Form 15 Suspension Notice with respect to the Issuer. Prior to (unless and until a Form 15 Suspension Notice shall have been filed) March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the ~~Master Servicer~~ Depositor with the Form 10-K no later than March ~~20th~~ 25th of each year. The ~~Master Servicer~~ Depositor shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March ~~25th~~ 27th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master ~~Servicer~~ Servicer, the Issuer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If ~~(i)~~ the indemnification provided for in clause (d)(i) herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection ~~therewith and (ii)~~ therewith. If the indemnification provided for in clause (d)(i) herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (American Home Mortgage Investment Trust 2004-2)

Exchange Act Reporting. The Depositor shall: (a) ~~The Indenture~~ on behalf of the Trust, prepare and file or cause the Trustee (in accordance with instructions from the Depositor as to form and substance) to prepare and file with the Commission in accordance with rules and regulations prescribed by the Commission, following the execution thereof by the Depositor, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, that the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act with respect to the Trust; (b) on behalf of the Trust, prepare and file or cause the Trustee (in accordance with instructions from the Depositor as to form and substance) to prepare and file with the Commission, in accordance with rules and regulations prescribed by the Commission, such additional information, documents and reports, including such certificates of independent public accountants, if any, contemplated by the Securities Act, the Exchange Act or the rules or interpretations of the Commission thereunder, with respect to compliance by the Trust with the conditions and covenants of this Trust Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations. (c) supply to the Trustee (and the ~~Master Servicer~~ Trustee shall ~~reasonably cooperate~~ transmit by mail to all Certificateholders described in TIA Section 313(c), in the manner and to the extent provided therein) such summaries of any information, documents and reports required to be filed by the Trustee pursuant to clauses (a) and (b) of this Section 4.1, if any, as may be required by rules and regulations prescribed from time to time by the Commission; and (d) after an Available Information Event, on behalf of the Trust, prepare, execute and file or cause the Trustee to prepare, execute and file with the ~~Issuer and~~ Commission following the execution thereof by the Depositor, reports of the kind referred to in clause (a) of this Section 4.1 with respect to the Underlying Securities Guarantor, to the extent such reports are then available to the Depositor, for as long as the Depositor ~~in connection with~~ on behalf of the ~~Trust's satisfying the reporting requirements~~ Trust is required to file such reports under the Exchange Act. ~~The Indenture Trustee~~ Such reports shall ~~prepare on behalf~~ include quarterly and annual financial statements and other information of the ~~Trust any Forms 8-K and 10-K customary for similar securities as~~ type required ~~by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable~~ to ~~the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms~~ be filed on ~~behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any~~ Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the ~~items currently contained in the Certification, the Indenture Trustee~~ Underlying Securities Guarantor. A copy of each such report shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit be provided to the ~~Form~~ Trustee at least ten (10~~-K). (f~~) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect Business Days prior to the ~~Trust~~date required for filing.

Appears in 1 contract

Samples: Trust Agreement (Corporate Asset Backed Corp Cabco Series 2004 1 Trust)

Exchange Act Reporting. (a) The Indenture Trustee and the ------------------------- Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the ~~Securityholders~~Securityholders but with the consent of the Bond Insurer. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission thereunder, and the ~~Master Servicer~~ Depositor shall sign (or shall cause another entity acceptable to the Securities and Exchange Commission to sign) and the Indenture Trustee shall file (via the Securities and Exchange Commission's ’s Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or the Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the ~~Master Servicer~~Depositor, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each ~~Distribution~~ Payment Date, with a copy of the statement to the ~~Certificateholders~~ Noteholders for such ~~Distribution~~ Payment Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the Rules and Regulations of the Securities and Exchange Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff's ’s interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's ’s annual statement of compliance described under Section ~~3.16~~ 3.20 and the accountant's ’s report described under Section ~~3.17~~3.21, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's ’s inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "“Certification"”)~~, in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by the senior officer of the ~~Master Servicer~~ Depositor in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates regarding certain aspects ~~of items 1 through 3~~ of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of ~~any~~ the accountant's ’s report attached as an exhibit to the Form 10-K). . The Indenture Trustee’s certification shall be delivered to the Depositor by no later than March 19th of each year (dor if such day is not a Business Day, the immediately preceding Business Day) and the Depositor shall deliver the Certification to the Indenture Trustee for filing no later than March 20th of each year (or if such day is not a Business Day, the immediately preceding Business Day). In addition, ~~(i)~~ the Indenture Trustee shall indemnify and hold harmless the ~~Master Servicer and the~~ Depositor and ~~their~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's ’s obligations under this Section ~~4.06 caused by~~ 4.02(c) or the Indenture Trustee's ’s negligence, bad faith or willful misconduct in connection therewith~~, and (ii) the Master Servicer~~ . The Depositor shall indemnify and hold harmless the Indenture ~~Trustee, the Master Servicer, the Issuer~~ Trustee and ~~their respective~~ its officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Master Servicer's~~ Depositor’s obligations under this Section ~~4.06~~ 4.02 or the ~~Master Servicer's~~ Depositor’s negligence, bad faith or willful misconduct in connection therewith. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Master Servicer~~Depositor or the Indenture Trustee, as applicable, then the other party, in connection with a breach of its respective obligations under this Section 4.02 with respect to the Depositor or Section 4.02(c) with respect to the Indenture Trustee or its respective negligence, bad faith or willful misconduct in connection therewith, agrees that it shall contribute to the amount paid or payable by the ~~Master Servicer~~ other party as a result of the losses, claims, damages or liabilities of the ~~Master Servicer~~ other party in such proportion as is appropriate to reflect the relative fault and the relative benefit of the ~~Master Servicer~~ Depositor on the one hand and the Indenture Trustee on the ~~other in connection~~ other. (d) Upon any filing with ~~a breach of~~ the ~~Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence~~Securities and Exchange Commission, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as shall promptly deliver to the Depositor a ~~result~~ copy of ~~the losses~~any executed report, ~~claims, damages~~ statement or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithinformation. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file ~~with the Commission~~ a Form ~~15D~~ 15 Suspension Notification with respect to the Trust. (f) To the extent that, following the Closing Date, the Depositor certifies to the Indenture Trustee that reports and certifications differing from those required under this Section 4.06 comply with the reporting requirements under the Exchange Act, the Indenture Trustee hereby agrees that it will reasonably cooperate to amend the provisions of this Section 4.02 (in accordance with Section 7.01) in order to comply with such amended reporting requirements and such amendment of this Section 4.02. Any such amendment may result in the reduction of the reports filed by the Depositor under the Exchange Act. Notwithstanding the foregoing, the Indenture Trustee shall not be obligated to enter into any amendment pursuant to this Section that adversely affects its rights, protections, obligations and immunities under this Servicing Agreement.

Appears in 1 contract

Samples: Servicing Agreement (New Century Home Equity Loan Trust 2005-2)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicer, the Special Servicer, the Paying Agent, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ~~satisfying the~~ satisfaction of its reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Paying Agent shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Securities and Exchange Commission (the "Commission") thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Paying Agent shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Monthly Certificateholders Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Paying Agent in EDGAR-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Paying Agexx xxd the Depositor, at the Depositor's expense, and any necessary conversion to EDGAR-compatible format will be at the Depositor's expense. Prior ~~to March~~ tx Xxxch 30th of each year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in substance as required by applicable law or applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under ~~Section 3.16~~ Sections 8.12 and ~~the~~ 9.18 and each accountant's report described under ~~Section 3.17~~Sections 8.13 and 9.19, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Paying Agent. If they are not so timely delivered, the ~~Indenture Trustee~~ Paying Agent shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Paying Agent. ~~The Indenture Trustee~~ Each Form 10-K shall also include any Sarbanes-Oxley Certification required to be included therewith, as xxxxxxxxx xx xaragraph (b) of this Section 8.26. Neither the Paying Agent nor the Master Servicer shall have no any liability with respect to any failure to properly ~~prepare~~ prepare, execute or file such periodic reports resulting from the Master Servicer's or ~~relating to~~ the ~~Indenture Trustee~~Paying Agent's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January ~~30th~~ 30 of the first year in which the ~~Indenture Trustee~~ Paying Agent is able to do so under applicable law, the ~~Indenture Trustee~~ Paying Agent shall file ~~with the Commission~~ a Form ~~15D Suspension Notification with respect~~ 15 relating to the ~~Trust~~automatic suspension of reporting in respect of the Trust under the Exchange Act. (b) The Form 10-K shall include any certification (the "Sarbanes-Oxley Certification") required to be included therewith puxxxxxx xx xxx Sarbanes-Oxley Act of 2002 and the rules and regulations of the Comxxxxxxx xxxxxxgated thereunder (including any interpretations thereof by the Commission's staff) and a copy of such Sarbanes-Oxley Certification shall be provided to the Rating Agencixx. Xxx Xxxxxxl Servicer and the Paying Agent (each, a "Performing Party") shall provide to the Person who signs the Sarbanes-Oxley

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Ii Inc)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture ~~Trustee~~ trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section ~~4.06~~ 4.07 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 4.07 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section ~~4.06~~ 4.07 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 4.07 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic~~ Operative Documents, the provisions of this Section ~~4.06~~ 4.07 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee (to the extent any information requested by the Depositor is actually in the possession of the Trustee) and the Master Servicer shall ~~reasonably~~ fully cooperate with ~~the Issuer and~~ the Depositor in connection with the Trust's ’s satisfying the reporting requirements under the Exchange ~~Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities~~ Act as ~~required~~ may be requested by the ~~Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable~~ Depositor pursuant to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of Section 3.26. (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 Within 12 calendar days after each Distribution Date, the Trustee shall, in accordance with industry standards, file with the Commission via the Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D, signed by the Depositor, with a copy of the monthly statement to be furnished by the Trustee to the Certificateholders for such Distribution ~~Date~~ Date. Any disclosure in addition to the monthly statement required to be included on the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have no duty or liability to verify the accuracy or sufficiency of any such Additional Form 10-D Disclosure and the Trustee shall have no liability with respect to any failure to properly prepare or file such Form 10-D resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such Additional Form 10-D Disclosure. Within 3 calendar days after the related Distribution Date, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-D Disclosure shall be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx), the Depositor and the Certificate Insurer, to the extent known by a responsible party thereof, clearly identifying which item of Form 10-D the information relates to, any Additional Form 10-D Disclosure, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-D and forward the Form 10-D to the Depositor for verification. The Depositor will approve, as to form and substance, or disapprove, as the case may be, the Form 10-D. No later than three Business Days prior to the 10th calendar day after the related Distribution Date, an ~~exhibit thereto~~officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. The Trustee shall have no liability with respect to any failure to properly file any Form 10-D resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. (ii) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare and file any Form 8-K, as required by the Exchange Act, in addition to the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information. For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of a Reportable Event, the entity that is indicated in Exhibit O as the responsible party for providing Form 8-K Disclosure Information shall be required to provide to the Depositor, to the extent known by a responsible officer thereof, the form and substance of any Form 8-K Disclosure Information, if applicable. The Depositor shall compile the information provided to it, and prepare and file the Form 8-K, which shall be signed by an officer of the Depositor. (iii) Prior to January 30 of the first year in which the Trustee is able to do so under applicable law, the Trustee shall, in accordance with industry standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On or before (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, on or before April 15 of each year thereafter, the Master Servicer shall provide the Trustee and Certificate Insurer with an Annual Compliance Statement, together with a copy of the Assessment of Compliance and Attestation Report to be delivered by the Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or any subcontractor, if required to be filed). Prior to (x) March ~~30th~~ 30, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, March 30 of each year ~~(or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission)~~thereafter, the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Securities and Exchange Commission staff~~'s interpretations. The Indenture Trustee shall prepare the Form 10-K~~ ’s interpretations and ~~provide the Master Servicer~~ conforming to industry standards, with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to the ~~Indenture Trustee no later than March 25th of each year~~Trust Fund. Such Form 10-K shall include ~~as exhibits~~ the Assessment of Compliance, Attestation Report, Annual Compliance Statements and other documentation provided by the Master ~~Servicer's annual statement of compliance described under~~ Servicer pursuant to Sections 3.19 and 3.20 (including with respect to any Sub-Servicer or subcontractor, if required to be filed) and Section ~~3.16~~ 3.20 with respect to the Trustee, and the ~~accountant's report~~ Form 10-K certification in the form attached hereto as Exhibit L-1 (the “Certification”) signed by the senior officer of the Depositor in charge of securitization. The Trustee shall receive the items described ~~under Section 3.17,~~ in the preceding sentence no later than March 15 of each ~~case~~ calendar year prior to the ~~extent they~~ filing deadline for the Form 10-K. Any disclosure or information in addition to that described in the preceding paragraph that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined and prepared by the entity that is indicated in Exhibit O as the responsible party for providing that information, if other than the Trustee, and the Trustee will have ~~been timely delivered~~ no duty or liability to verify the ~~Indenture Trustee~~accuracy or sufficiency of any such Additional Form 10-K Disclosure. If ~~they~~ information, data and exhibits to be included in the Form 10-K are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's ’s inability or failure to timely obtain any information ~~not resulting~~ from ~~its own negligence~~ any other party. On or ~~willful misconduct. The~~ prior to (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed, prior to March 15 of each year thereafter, each entity that is indicated in Exhibit O as the responsible party for providing Additional Form 10-K Disclosure shall ~~also include~~ be required to provide to the Trustee via e-mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx), the Certificate Insurer and the Depositor, to the extent known by a ~~certification in~~ responsible party thereof, the form ~~attached hereto~~ and substance of any Additional Form 10-K Disclosure Information, if applicable. The Trustee shall compile the information provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor for verification. The Depositor will approve, as ~~Exhibit C-1~~ to form and substance, or disapprove, as the case may be, the Form 10-K by no later than March 25 of the relevant year (or the ~~"Certification"~~immediately preceding Business Day if March 25 is not a Business Day), ~~in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior~~ an officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Trustee. The Master Servicer shall be responsible for determining the pool concentration applicable to any Sub-Servicer to which the Master Servicer delegated any of its responsibilities with respect to the Mortgage Loans at any time, for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge to any Certificateholder upon request. Any expenses incurred by the Trustee in ~~charge~~ connection with the previous sentence shall be reimbursable to the Trustee out of ~~securitization. (c) In addition,~~ the ~~Indenture~~ Trust Fund. The Trustee shall have no liability with respect to any failure to properly file any Form 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. The Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-3) for the benefit of the ~~Master Servicer~~ Depositor and its officers, directors and Affiliates ~~regarding certain aspects~~ in respect of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of ~~any accountant's report~~ the Attestation Report attached as an exhibit to the Form 10-K)., and the Master Servicer shall sign a certification (the “Master Servicer Certification) solely with respect to the Master Servicer (in the form attached hereto as Exhibit L-2) for the benefit of the Depositor, the Trustee and each Person, if any, who “controls” the Depositor or the Trustee within the meaning of the Securities Act of 1933, as amended, and their respective officers and directors. Each such certification shall be delivered to the Depositor and the Trustee by March 15th of each year (or if not a Business Day, the immediately preceding Business Day). The Certification attached hereto as Exhibit L-1 shall be delivered to the Trustee by March 20th for filing on or prior to March 30th of each year (or if not a Business Day, the immediately preceding Business Day). The Trustee will have no duty to verify the accuracy or sufficiency of any information not prepared by it included in any Form 10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any failure to properly prepare or file any Form 10- D or Form 10-K resulting from or relating to the Trustee’s inability or failure to obtain any information in a timely manner from the party responsible for delivery of such disclosure information. The Trustee shall have no liability with respect to any failure to properly file any Form l0-D or 10-K resulting from or relating to the Depositor’s failure to timely comply with the provisions of this section. Nothing herein shall be construed to require the Trustee or any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K. (dc) ~~In addition,~~ (iA) ~~the Indenture~~ The Trustee shall indemnify and hold harmless the ~~Master Servicer and the Depositor and their officers~~Depositor, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer ~~shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer~~ and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon ~~a breach~~ any material misstatement or omission in the Assessment of Compliance delivered by the Trustee pursuant to Section 3.20 and (B) the Master Servicer shall indemnify and hold harmless the Depositor, the Trustee and their respective officers, directors and Affiliates from and against any actual losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon (i) the failure of the Master ~~Servicer's obligations under this~~ Servicer to timely deliver the Master Servicer Certification or (ii) any material misstatement or omission in the Statement as to Compliance delivered by the Master Servicer pursuant to Section ~~4.06~~ 3.19 or any Sub-Servicer pursuant to Section 3.20, the Assessment of Compliance delivered by the Master Servicer or any Sub-Servicer pursuant to Section 3.20 or the Master ~~Servicer's negligence, bad faith or willful misconduct in connection therewith~~Servicer Certification. If ~~(i)~~ the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture TrusteeDepositor, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Depositor and the Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Depositor and the Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Depositor and the Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer ~~shall provide a certification with respect to items 3, 4~~ Certification and ~~5 contained within~~ the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit related obligations of the Master Servicer under this Section 3.25. Upon any filing with the Securities and ~~its officers~~Exchange Commission, ~~directors and Affiliates regarding certain aspects of item 3 of~~ the ~~Certification (provided, however, that the Indenture~~ Trustee shall ~~not undertake an analysis~~ promptly deliver to the Depositor a copy of any ~~accountant's report attached as an exhibit to the Form 10-K)~~such executed report, statement or information. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-3)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the Depositor~~ Company in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the ~~Depositor or Issuer~~ Company (or such other entity). The ~~Depositor and the Issuer~~ Company hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the ~~Depositor and the Issuer~~Company. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture~~ Trustee from the ~~Depositor and the Issuer~~ Company of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ M-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~M-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the ~~Indenture~~ Trustee shall indemnify and hold harmless the Master Servicer and the ~~Depositor~~ Company and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the ~~Indenture~~ Trustee, the Master Servicer, the ~~Issuer~~ Company and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the ~~Indenture~~ Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the ~~Indenture~~ Trustee on the other in connection with a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Indenture~~ Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the ~~Indenture~~ Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit ~~C-1~~M-1, or other form as indicated by the Commission for this purpose. In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-3~~M-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic Documents~~Agreement, the provisions of this Section ~~4.06~~ 3.25 may be amended by the Master Servicer, the ~~Issuer~~ Company and the ~~Indenture~~ Trustee without the consent of the ~~Securityholders~~Certificateholders. (g) Prior to January 30th of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp Mort Pass THR Certs Ser 2003-2)

Exchange Act Reporting. (a) The ~~Indenture Trustee and the~~ Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereundershall, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and in respect of the ~~Issuer. Such power~~ Trust Estate, prepare and cause to be filed with the Commission any periodic reports required to be filed under the provisions of ~~attorney~~ the Exchange Act, and the rules and regulations of the Commission thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with the preparation and filing of such periodic reports, the Indenture Trustee shall ~~continue until~~ timely provide to the ~~earlier~~ Master Servicer (I) a list of Securityholders as shown on the Register as of the end of each calendar year, (iII) ~~receipt~~ copies of all pleadings, other legal process and any other documents relating to any claims, charges or complaints involving the Indenture Trustee, as trustee hereunder, or the Trust Estate that are received by the Indenture ~~Trustee from~~ Trustee, (III) notice of all matters that, to the actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted to a vote of the Securityholders, other than those matters that have been submitted to a vote of the Securityholders at the request of the Depositor ~~and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein~~ or ~~in the Indenture to the contrary,~~ the Master Servicer, and ~~not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf~~ (IV) notice of ~~the Trust. (b) Each Form 8-K shall be filed by~~ any failure of the Indenture Trustee ~~within 15 days after each Distribution Date, with a copy of the statement~~ to make any distribution to the ~~Certificateholders for such Distribution Date~~ Securityholders as ~~an exhibit thereto~~required pursuant to this Agreement. ~~Prior to March 30th of each year (or such earlier date as may be required or permitted by~~ Neither the ~~Exchange Act and the Rules and Regulations of the Commission),~~ Master Servicer nor the Indenture Trustee shall ~~file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer~~ have any liability with ~~the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K~~ respect to ~~the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits~~ the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture Trustee~~Master Servicer's inability or failure to obtain any information not resulting from ~~its~~ the Master Servicer's own negligence or willful misconduct~~. The~~ (b) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall ~~also include a certification~~ include: (i) A certification, signed by the senior officer in charge of the servicing functions of the Master Servicer, in the form attached ~~hereto~~ as Exhibit ~~C-1~~ D hereto or such other form as may be required or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission~~, which shall be signed by~~ . (ii) A report regarding its assessment of compliance during the ~~senior officer of~~ preceding calendar year with all applicable servicing criteria set forth in relevant Commission regulations with respect to mortgage-backed securities transactions taken as a whole involving the Master Servicer ~~in charge~~ that are backed by the same types of ~~securitization. (c) In addition~~assets as those backing the certificates, ~~the Indenture Trustee shall sign a certification (~~as well as similar reports on assessment of compliance received from other parties participating in the ~~form attached hereto~~ servicing function as ~~Exhibit C-2) for the benefit of the Master Servicer and its officers~~required by relevant Commission regulations, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as ~~an exhibit to the Form 10-K~~described in Item 1122(a). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Residential Funding Mortgage Securities Ii Inc)

Exchange Act Reporting. SECTION 11.01 Form 10-D Reporting Within 15 days after each Distribution Date (asubject to permitted extensions under the Exchange Act), the Securities Administrator shall prepare and file on behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Securities Administrator shall file each Form 10-D with a copy of the related Monthly Statement attached thereto. Any disclosure in addition to the Monthly Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, within 5 calendar days after the related Distribution Date of each month that the Trust is subject to the Exchange Act reporting requirements, (i) the parties set forth thereon shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, a notice in the form of Exhibit R hereto (an “Additional Disclosure Notification”) together with, the form and substance of any Additional Form 10-D Disclosure, if applicable to such party and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The ~~Indenture Trustee~~ Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D, the Securities Administrator shall forward electronically a copy of the Form 10-D to the Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure) and the Master Servicer for review. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall ~~reasonably cooperate with~~ notify the ~~Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf~~ Securities Administrator of ~~the Trust~~ any ~~Forms 8-K and~~ changes to or approval of such Form 10-~~K customary for similar securities as required by~~ D. No later than 2 Business Days prior to the ~~Exchange Act and~~ 15th calendar day after the ~~Rules and Regulations~~ related Distribution Date, a duly authorised officer of ~~the Commission thereunder, and~~ the Master Servicer shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (~~or shall cause another entity acceptable~~ with an original executed hard copy to follow by overnight mail) to the ~~Commission~~ Securities Administrator. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to ~~sign~~be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) ~~and the Indenture Trustee shall file (via~~ after filing with the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the ~~Master Servicer, and not the Indenture Trustee, shall be responsible for executing~~ Securities Administrator will make available on its internet website a final executed copy of each Form 10-~~K filed on behalf of the Trust. (b) Each Form 8-K shall be~~ D filed by the ~~Indenture Trustee within 15~~ Securities Administrator. Each party to this Agreement acknowledges that the performance by the Securities Administrator and the Master Servicer of its duties under this Section 11.01 related to the timely preparation, execution and filing of Form 10-D is contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under this Section 11.01. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, timely execute and/or timely file such Form 10-D, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. SECTION 11.02 Form 10-K Reporting Within 90 days after the end of each ~~Distribution Date, with a copy~~ fiscal year of the ~~statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (~~Trust or such earlier date as may be required ~~or permitted~~ by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2007, the Securities Administrator shall prepare and ~~the Rules and Regulations~~ file on behalf of the ~~Commission), the Indenture Trustee shall file~~ Trust a Form 10-K, in form and substance as required by ~~applicable law or applicable Commission staff's interpretations~~the Exchange Act. ~~The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute~~ Each such ~~Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such~~ Form 10-K shall include ~~as exhibits~~ the ~~Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17~~following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Indenture Trustee. If they are not so timely delivered~~Securities Administrator within the applicable time frames set forth in this Agreement and the related Purchase and Servicing Agreement or Servicing Agreement, as applicable, (i) the Item 1123 Certification for each Servicer, each Additional Servicer, the ~~Indenture Trustee shall file~~ Master Servicer and the Securities Administrator and any Servicing Function Participant engaged by the Master Servicer or the Securities Administrator as described under Section 11.05, (ii)(A) the Assessment of Compliance with servicing criteria for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.06, and (B) if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any of a Servicers’, the Master Servicer’s, the Securities Administrator’s, the Custodian’s or any Servicing Function Participant’s Assessment of Compliance is not included as an ~~amended~~ exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the Accountant’s Attestation for each Servicer, the Master Servicer, the Securities Administrator, the Custodian and each Servicing Function Participant, as described under Section 11.07, and (B) if any Accountant’s Attestation identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such Accountant’s Attestation is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 11.08. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~including such documents as exhibits reasonably promptly after they are delivered~~ (“Additional Form 10-K Disclosure”) shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Indenture Trustee~~following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in the next paragraph. As set forth on Exhibit N hereto, no later than March 15 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) the parties set forth on Exhibit N shall be required to provide to the Securities Administrator and the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Additional Form 10-K Disclosure, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. After preparing the Form 10-K, the Securities Administrator shall forward electronically a draft copy of the Form 10-K to the Master Servicer and the Depositor (provided that such Form 10-K includes any Additional Form 10-K Disclosure). No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 10-K. No later than the close of business on the 4th Business Day prior to the 10-K Filing Deadline, a senior officer of the Master Servicer shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Securities Administrator. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-K filed by the Securities Administrator. The ~~Indenture Trustee~~ parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.02 related to the timely preparation, execution and filing of Form 10-K is contingent upon such parties (and any Additional Servicer or Servicing Function Participant) strictly observing all applicable deadlines in the performance of their duties under Article XI. Neither the Master Servicer nor the Securities Administrator shall have no any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly ~~prepare or~~ prepare, execute and/or timely file such ~~periodic reports resulting~~ Form 10-K, where such failure results from ~~or relating to~~ the ~~Indenture Trustee's~~ Securities Administrator’s inability or failure to obtain or receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct~~. The~~ . SECTION 11.03 Form 108-K Reporting Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Securities Administrator shall ~~also include~~ prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a ~~certification~~ Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth in the ~~form attached hereto~~ next paragraph. As set forth on Exhibit N hereto, for so long as ~~Exhibit C-1 (~~the ~~"Certification"), in compliance with Rules 13a-14 and 15d-14 under~~ Trust is subject to the Exchange Act ~~and any additional directives~~ reporting requirements, no later than the end of business on the ~~Commission, which shall be signed by~~ 2nd Business Day after the ~~senior officer~~ occurrence of ~~the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign~~ a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, Reportable Event (i) the ~~Indenture Trustee~~ parties set forth on Exhibit N shall ~~indemnify~~ be required to provide to the Securities Administrator and ~~hold harmless~~ the Depositor, to the extent a Responsible Officer of such party has knowledge, an Additional Disclosure Notification in the form of Exhibit R attached hereto, along with, in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information, if applicable to such party, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Securities Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. After preparing the Form 8-K, the Securities Administrator shall forward electronically a draft copy of the Form 8-K to the Master Servicer and the Depositor for review. No later than the Business Day prior to the date specified in the next sentence, the Depositor and the Master Servicer shall notify the Securities Administrator of any changes to or approval of such Form 8-K. No later than noon on the 4th Business Day after the Reportable Event, a duly authorised officer of the Master Servicer shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Securities Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 11.04. Promptly (but no later than 1 Business Day) after filing with the Commission, the Securities Administrator will, make available on its internet website a final executed copy of each Form 8-K filed by the Securities Administrator. The parties to this Agreement acknowledge that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 11.03 related to the timely preparation, execution and filing of Form 8-K is contingent upon such parties strictly observing all applicable deadlines in the performance of their ~~officers~~duties under this Section 11.03. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, ~~directors and Affiliates from and against any losses~~expense, ~~damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of or ~~based upon~~ with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such failure results from the Securities Administrator’s inability or failure to obtain or receive, on a ~~breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's~~ timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewithmisconduct. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Mortgage Trust 2006-S1)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form ~~10-~~1K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master ~~Servicer's~~ Ss negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2003-6)

Exchange Act Reporting. (a) The ~~Indenture~~ Trustee and the Master Servicer shall reasonably cooperate with the ~~Issuer and the Depositor~~ Company in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The ~~Indenture~~ Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the ~~Indenture~~ Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the ~~Depositor or Issuer~~ Company (or such other entity). The ~~Depositor and the Issuer~~ Company hereby ~~grant~~ grants to the ~~Indenture~~ Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the ~~Depositor and the Issuer~~Company. Such power of attorney shall continue until the earlier of (i) receipt by the ~~Indenture~~ Trustee from the ~~Depositor and the Issuer~~ Company of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein ~~or in the Indenture~~ to the contrary, the Master Servicer, and not the ~~Indenture~~ Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the ~~Indenture~~ Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the ~~Indenture~~ Trustee shall file a Form ~~10-~~10- K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The ~~Indenture~~ Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the ~~Indenture~~ Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section ~~3.16~~ 3.19 and the accountant's report described under Section ~~3.17~~3.20(a), in each case to the extent they have been timely delivered to the ~~Indenture~~ Trustee. If they are not so timely delivered, the ~~Indenture~~ Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture~~ Trustee. The ~~Indenture~~ Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the ~~Indenture~~ Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit ~~C-1~~ L-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-2~~L-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the ~~Indenture~~ Trustee shall indemnify and hold harmless the Master Servicer and the ~~Depositor~~ Company and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the ~~Indenture~~ Trustee, the Master Servicer, the ~~Issuer~~ Company and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the ~~Indenture~~ Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the ~~Indenture~~ Trustee on the other in connection with a breach of the ~~Indenture~~ Trustee's obligations under this Section ~~4.06~~ 3.25 caused by the ~~Indenture~~ Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the ~~Indenture~~ Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the ~~Indenture~~ Trustee as a result of the losses, claims, damages or liabilities of the ~~Indenture~~ Trustee in such proportion as is appropriate to reflect the relative fault of the ~~Indenture~~ Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 3.25 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the ~~Indenture~~ Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit ~~C-1~~L-1, or other form as indicated by the Commission for this purpose. In addition, the ~~Indenture~~ Trustee shall sign a certification (in the form attached hereto as Exhibit ~~C-3~~L-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the ~~Indenture~~ Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic Documents~~Agreement, the provisions of this Section ~~4.06~~ 3.25 may be amended by the Master Servicer, the ~~Issuer~~ Company and the ~~Indenture~~ Trustee without the consent of the ~~Securityholders~~Certificateholders. (g) Prior to January 30th of the first year in which the ~~Indenture~~ Trustee is able to do so under applicable law, the ~~Indenture~~ Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp Mortgage Pass-Through Certificates, Series 2004-2)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission staff's interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic~~ Operative Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impact CMB Trust Series 2002-7)

Exchange Act Reporting. (a) The ~~Indenture~~ Master Servicers, the Special Servicer (other than GMACCM for as long as GMACCM is a Special Servicer hereunder), the Certificate Administrator, the Trustee and the ~~Master Servicer~~ Fiscal Agent shall reasonably cooperate with ~~the Issuer and~~ the Depositor in connection with the ~~Trust~~Trust Fund's ~~satisfying the~~ satisfaction of its reporting requirements under the Exchange Act. ~~The Indenture Trustee~~ Within 15 days after each Distribution Date, the Certificate Administrator shall ~~prepare~~ prepare, execute and file on behalf of the Trust any Forms 8~~-K and 10~~-K customary for similar securities as required by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission thereunder~~, and~~ ; provided that the ~~Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee~~ Depositor shall file ~~(via~~ the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any initial Form 8-K ~~and~~ in connection with the issuance of the Certificates. The Certificate Administrator shall file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K ~~shall be filed by the Indenture Trustee within 15 days after each Distribution Date,~~ with a copy of the ~~statement~~ related Certificate Administrator Report attached thereto. If the Depositor directs that any other attachments are to be filed with any Form 8-K, such attachments shall be delivered to the ~~Certificateholders for such Distribution Date~~ Certificate Administrator in Xxxxx-compatible form or as ~~an exhibit thereto~~otherwise agreed upon by the Certificate Administrator and the Depositor, at the Depositor's expense, and any necessary conversion to XXXXX-compatible format will be at the Depositor's expense. Prior to March 31st of each year, other than a leap year, or March 30th of each leap year (or such earlier date as may be required ~~or permitted~~ by the Exchange Act and the ~~Rules~~ rules and ~~Regulations~~ regulations of the Commission), the ~~Indenture Trustee~~ Certificate Administrator shall prepare and file an Annual Report on Form 10-K (a "Form 10-K"), in substance as required by applicable law or and applicable ~~Commission staff's interpretations. The Indenture Trustee shall prepare~~ interpretations thereof of the ~~Form 10-K and provide~~ staff of the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture Trustee no later than March 25th of each yearCommission. Such Form 10-K shall include as exhibits ~~the Master Servicer's~~ each annual statement of compliance described under Section ~~3.16~~ 3.13 and ~~the~~ each accountant's report described under Section ~~3.17~~3.14, in each case to the extent they have been timely delivered to the ~~Indenture Trustee~~Certificate Administrator. If they are not so timely delivered, the ~~Indenture Trustee~~ Certificate Administrator shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the ~~Indenture Trustee~~Certificate Administrator. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in paragraph (b) of this Section. The ~~Indenture Trustee~~ Certificate Administrator shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from ~~or relating to~~ the ~~Indenture Trustee~~Certificate Administrator's inability or failure to obtain any information not resulting from its own ~~negligence~~ negligence, bad faith or willful misconduct. Prior to January 30 of the first year in which the Certificate Administrator is able to do so under applicable law, the Certificate Administrator shall file a Form 15 relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act and shall provide the Special Servicer and the Master Servicers with written notice of such filing. (b) The Form 10-K shall ~~also~~ include a any certification ~~in the form attached hereto as Exhibit C-1~~ (the "Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission's staff). Each Master Servicer, the Special Servicer (other than GMACCM for as long as GMACCM is a Special Servicer hereunder) and the Certificate Administrator (each of the foregoing Persons (other than GMACCM for as long as GMACCM is a Special Servicer hereunder), a "Performing Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a "Performance Certification"), in ~~compliance with Rules 13a-14~~ form and ~~15d-14 under~~ substance reasonably satisfactory to the ~~Exchange Act~~ Depositor and ~~any additional directives of~~ the ~~Commission~~Performing Party, upon which ~~shall be signed by~~ the ~~senior officer of the Master Servicer in charge of securitization. (c) In addition~~Certifying Person, the ~~Indenture Trustee shall sign a certification~~ entity for which the Certifying Person acts as an officer (in if the ~~form attached hereto as Exhibit C-2) for the benefit of the Master Servicer~~ Certifying Person is an individual), and ~~its~~ such entity's officers, directors and Affiliates ~~regarding certain aspects of items 1 through 3~~ (collectively with the Certifying Person, "Certification Parties") can rely, relating to the accuracy and completeness of the ~~Certification (~~information and reports provided under this Agreement by such Performing Party; provided, however, that the ~~Indenture Trustee~~ certification required from the Special Servicer (other than GMACCM for as long as GMACCM is a Special Servicer hereunder) shall ~~not undertake an analysis~~ contain the following information: (i) a statement acknowledging that the officer of ~~any accountant's report attached as an exhibit to~~ the Special Servicer signing such certification has reviewed the information provided by it for inclusion in the Form 10-K to be covered by the subject Xxxxxxxx-Xxxxx Certification; (ii) a statement, based on the knowledge of the officer of the Special Servicer that is signing such certification, that the information provided by it to be covered by such Xxxxxxxx-Xxxxx Certification solely relating to actions of the Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties for which it is the Special Servicer, taken as a whole, does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements made, not misleading as of the last day of the period covered by the subject Form 10-K; (iii) a statement, based on the knowledge of the officer of the Special Servicer that is signing such certification, that the information provided by it and to be covered by such Xxxxxxxx-Xxxxx Certification relating solely to actions of the Special Servicer and/or payments and other collections on the Specially Serviced Mortgage Loans and REO Properties for which it is the Special Servicer, includes all information of such type available to the Special Servicer and required to be included in the Certificate Administrator Reports for the relevant period covered by the subject Form 10-K; and (iv) a statement, based on the knowledge of the officer of the Special Servicer that is signing such certification, that the Special Servicer has disclosed all significant deficiencies relating to the Special Servicer's compliance with the minimum servicing standards during the period covered by the subject Form 10-K in the report provided by an independent public accountant, after conducting a review in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar procedure, as set forth in this Agreement. Notwithstanding the foregoing, nothing in this paragraph shall require any Performing Party to (i) certify or verify the accurateness or completeness of any information provided to such Performing Party by third parties, (ii) to certify information other than to such Performing Party's knowledge or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Performing Party have been completed except as they have been left blank on their face. In addition, if the Performing Party is a Master Servicer or the Special Servicer (in any event excluding GMACCM for as long as GMACCM is a Special Servicer hereunder), such Performing Party shall, upon request, execute a reasonable reliance certificate acknowledging the Certification Party's right to rely upon the Annual Compliance Certificate provided pursuant to Section 3.13, and shall include a certification, based on the knowledge of the officer that is signing such certification, that such Annual Compliance Certificate discloses any significant deficiencies or defaults described to the certified public accountants of such Performing Party to enable such accountants to render the certificate provided for in Section 3.14. In addition, in the event that a Serviced Non-Pooled Pari Passu Companion Loan is deposited into a commercial mortgage securitization, on or before March 20th of each year with respect to which a Form 10-K is filed by the related trustee for such commercial mortgage securitization, the applicable Master Servicer and the Special Servicer (in any event excluding GMACCM for as long as GMACCM is a Special Servicer hereunder), shall, upon request, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such commercial mortgage securitization a certification in form and substance reasonably satisfactory to the depositor of such commercial mortgage securitization and the applicable Master Servicer or the Special Servicer, as applicable, with respect to such Serviced Non-Pooled Pari Passu Companion Loan, on which such Person and such Person's partner, representative, Affiliate, member, manager, director, officer, employee or agent can rely. (dc) ~~In addition,~~ Each Performing Party (iin any event excluding GMACCM for as long as GMACCM is a Special Servicer hereunder) ~~the Indenture Trustee~~ shall indemnify and hold harmless ~~the Master Servicer and the Depositor and their officers, directors and Affiliates~~ each Certification Party from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of ~~or based upon a~~ an actual breach of the ~~Indenture Trustee~~applicable Performing Party's obligations under subsection (b) of this Section ~~4.06 caused by~~ or the ~~Indenture Trustee~~applicable Performing Party's negligence, bad faith or willful misconduct in connection ~~therewith~~with such obligations. (d) Nothing contained in this Section shall be construed to require any party to this Agreement, ~~and (ii) the Master Servicer~~ or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this Agreement, or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall ~~indemnify and hold harmless the Indenture Trustee~~not be regarded as a breach by such party of any of its obligations under this Agreement. The Depositor, ~~the~~ each Master Servicer, the ~~Issuer~~ Special Servicer (in any event excluding GMACCM for as long as GMACCM is a Special Servicer hereunder) and ~~their respective officers, directors and Affiliates~~ the Certificate Administrator hereby agree to negotiate in good faith with respect to compliance with any further guidance from ~~and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ the Commission or based upon a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute its staff relating to the ~~amount paid or payable by the Master Servicer as a result~~ execution of ~~the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand~~ any Form 10-K and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section 4.06 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section 4.06 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such matters, this Agreement shall be amended to reflect such agreement pursuant to Section 11.01, which amendment shall not require any Opinions of Counsel, Officer's Certificates, Rating Agency confirmations or the ~~Commission permits separate or split certifications to be made with respect~~ consent of any Certificateholder, notwithstanding anything to the ~~items currently~~ contrary contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this ~~purpose~~Agreement. In ~~addition,~~ no event shall the ~~Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master~~ Special Servicer ~~and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of~~ be required to execute any ~~accountant's report attached as an exhibit to the~~ Form 10-K)K or any Xxxxxxxx-Xxxxx Certification. (f) Notwithstanding any other provision of the Basic Documents, the provisions of this Section 4.06 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to January 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form 15D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)

Exchange Act Reporting. (a) The Indenture Trustee and the Master Servicer shall reasonably cooperate with the Issuer and the Depositor in connection with the Trust's satisfying the reporting requirements under the Exchange Act. The Indenture Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar securities as required by the Exchange Act and the Rules and Regulations of the Commission thereunder, and the Master Servicer shall sign (or shall cause another entity acceptable to the Commission to sign) and the Indenture Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval System) such forms on behalf of the Depositor or Issuer (or such other entity). The Depositor and the Issuer hereby grant to the Indenture Trustee a limited power of attorney to execute any Form 8-K and file each such document on behalf of the Depositor and the Issuer. Such power of attorney shall continue until the earlier of (i) receipt by the Indenture Trustee from the Depositor and the Issuer of written termination of such power of attorney and (ii) the termination of the Trust. Notwithstanding anything herein or in the Indenture to the contrary, the Master Servicer, and not the Indenture Trustee, shall be responsible for executing each Form 10-K filed on behalf of the Trust. (b) Each Form 8-K shall be filed by the Indenture Trustee within 15 days after each Distribution Date, with a copy of the statement to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30th of each year (or such earlier date as may be required or permitted by the Exchange Act and the Rules and Regulations of the Commission), the Indenture Trustee shall file a Form 10-K, in substance as required by applicable law or applicable Commission ~~staff's~~ staffs interpretations. The Indenture Trustee shall prepare the Form 10-K and provide the Master Servicer with the Form 10-K no later than March 20th of each year. The Master Servicer shall execute such Form 10-K upon its receipt and shall provide the original of such executed Form 10-K to the Indenture ~~Trustee~~ trustee no later than March 25th of each year. Such Form 10-K shall include as exhibits the Master Servicer's annual statement of compliance described under Section 3.16 and the accountant's report described under Section 3.17, in each case to the extent they have been timely delivered to the Indenture Trustee. If they are not so timely delivered, the Indenture Trustee shall file an amended Form 10-K including such documents as exhibits reasonably promptly after they are delivered to the Indenture Trustee. The Indenture Trustee shall have no liability with respect to any failure to properly prepare or file such periodic reports resulting from or relating to the Indenture Trustee's inability or failure to obtain any information not resulting from its own negligence or willful misconduct. The Form 10-K shall also include a certification in the form attached hereto as Exhibit C-1 (the "Certification"), in compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission, which shall be signed by the senior officer of the Master Servicer in charge of securitization. (c) In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of items 1 through 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (d) In addition, (i) the Indenture Trustee shall indemnify and hold harmless the Master Servicer and the Depositor and their officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Indenture Trustee's obligations under this Section ~~4.06~~ 4.07 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith, and (ii) the Master Servicer shall indemnify and hold harmless the Indenture Trustee, the Master Servicer, the Issuer and their respective officers, directors and Affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the Master Servicer's obligations under this Section ~~4.06~~ 4.07 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. If (i) the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Indenture Trustee agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Indenture Trustee on the other in connection with a breach of the Indenture Trustee's obligations under this Section ~~4.06~~ 4.07 caused by the Indenture Trustee's negligence, bad faith or willful misconduct in connection therewith and (ii) the indemnification provided for herein is unavailable or insufficient to hold harmless the Indenture Trustee, then the Master Servicer agrees that it shall contribute to the amount paid or payable by the Indenture Trustee as a result of the losses, claims, damages or liabilities of the Indenture Trustee in such proportion as is appropriate to reflect the relative fault of the Indenture Trustee on the one hand and the Master Servicer on the other in connection with a breach of the Master Servicer's obligations under this Section ~~4.06~~ 4.07 or the Master Servicer's negligence, bad faith or willful misconduct in connection therewith. (e) In the event the Commission permits separate or split certifications to be made with respect to the items currently contained in the Certification, the Indenture Trustee shall provide a certification with respect to items 1 and 2 and the Master Servicer shall provide a certification with respect to items 3, 4 and 5 contained within the Certification, in each case substantially in the form of the Certification attached as Exhibit C-1, or other form as indicated by the Commission for this purpose. In addition, the Indenture Trustee shall sign a certification (in the form attached hereto as Exhibit C-3) for the benefit of the Master Servicer and its officers, directors and Affiliates regarding certain aspects of item 3 of the Certification (provided, however, that the Indenture Trustee shall not undertake an analysis of any accountant's report attached as an exhibit to the Form 10-K). (f) Notwithstanding any other provision of the ~~Basic~~ Operative Documents, the provisions of this Section ~~4.06~~ 4.07 may be amended by the Master Servicer, the Issuer and the Indenture Trustee without the consent of the Securityholders. (g) Prior to ~~January~~ July 30th of the first year in which the Indenture Trustee is able to do so under applicable law, the Indenture Trustee shall file with the Commission a Form ~~15D~~ 1 5D Suspension Notification with respect to the Trust.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust Series 2003-9f)

Common use of Exchange Act Reporting Clause in Contracts