Periodic Filings. (a) The Trustee will prepare and file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify the Depositor of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (C-Bass Mortgage Loan Trust 2007-Cb3)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X 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 an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed~~ shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (with a copy to the ~~SEC~~Servicer), or in such other ~~than~~ form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any ~~losses, damages, penalties, fines, forfeitures,~~ reasonable ~~and necessary legal fees and related costs, judgments and other costs,~~ fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then incurred by the Trustee ~~shall contribute~~ in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or this paragraph. After preparing the Form 10-~~K within~~ D at the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none direction of the Depositor, the ~~Servicer and~~ Trustee will forward electronically a draft copy of the ~~Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than 2 business days after receipt of a final copy ~~of any such executed report~~after the related Distribution Date, ~~statement~~ unless the Servicer receives a notice from the Trustee as described below or ~~information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to ~~periods for which reports are required~~ such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to ~~be filed with respect~~ follow by overnight mail) to the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the~~ Trustee ~~is able to do so under applicable law,~~ and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form ~~15 Suspension Notification~~ 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the ~~Trust. At~~ Trustee's inability or failure to obtain or receive any ~~time after~~ information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the ~~filing of a Form 15 Suspension Notification~~registered public accounting firm attestation report for the Servicer and each Subservicer, ~~if the number of Certificateholders of record exceeds the number set forth~~ as described in Section ~~15(d)~~ 3.18 of the ~~Exchange Act or~~ Agreement, and (B) if any registered public accounting firm attestation report described in the ~~regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements~~ Section 3.18 of the ~~Exchange Act~~Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the ~~Trustee~~form attached hereto as Exhibit T, ~~solely at~~ executed by the ~~Depositor’s prior written direction and expense, shall recommence preparing and filing reports~~ senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~and~~ ("Additional Form 10-~~D as required~~ K Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to ~~this Section 3.22~~ the following paragraph and the ~~parties hereto shall again~~ Trustee will have ~~the obligations~~ no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in ~~this Section.~~ the next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) ~~For so long as reports are~~ certain parties to the transaction shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to the ~~Trust~~Depositor and the Servicer, ~~each of~~ to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the ~~Trustee, the Servicer~~ form and ~~the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case~~ substance of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Additional Form 10-K or Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 dayK Disclosure on Form 10-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required K pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the otherparagraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-Ahl1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format (or other ~~such other format reasonably acceptable~~ Xxxxx compatible format) agreed upon by the Trustee and Depositor, Seller or Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the Monthly Statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the -95- Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 20 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the ~~Trustee~~ Trustee, the Servicer and each Subservicer and Subcontractor engaged by such party shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the ~~Trust~~Issuing Entity, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements (each in Xxxxx compatible format) within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required ~~hereunder~~ hereunder. The Trustee shall ~~be provided~~ not have any responsibility to file any items (other than those generated by it) that have not been received in a format suitable (or readily convertible into a format suitable) for electronic filing via the XXXXX system and shall not have any responsibility to convert any such items to such format ~~compatible with the EXXXX system~~(other than those items generated by it or that are readily convertible to such format). However, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall ~~without further notice conclude that there is no event or information~~ notify the responsible party prior to ~~be reported. Notwithstanding anything set forth herein,~~ the ~~Servicer will not be responsible for the~~ respective filing deadline of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of items the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy has received that is not ~~due to inaccurate information provided to~~ in a format suitable (or readily convertible into a format suitable) for electronic filing via the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementXXXXX system. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the Servicer and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-He3)

Periodic Filings. (a) ~~The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and the Depositor, the Sponsor or the Trustee, as applicable, shall notify the Servicer thereof by telephone (unless such item is specific to the Servicer, in which case the Servicer will be deemed to have notice) and (ii) shall have delivered to the Trustee no later than ~~three~~ two Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic or other such other~~ a word format ~~reasonably acceptable to the Trustee. To the extent that a Responsible Officer of~~ agreed upon by the Trustee ~~has actual knowledge of an event relating to Items 3.03~~and Depositor, ~~6.02, 6.03~~ Sponsor or ~~6.04 of Form 8-K, the Trustee shall notify the Depositor of such event~~Servicer. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and, with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K within two business days; provided that the Depositor has notified the Trustee of the Depositor's approval of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. (b) Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. (c) As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (d) After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (e) Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 10-K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in Section 3.17 of this Agreement, (ii)(A) the ~~case~~ annual reports on assessment of compliance with servicing criteria for each Servicer, Subservicer and Subcontractor (unless the ~~Trustee’s Assessment of Compliance) and~~ Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB~~. The~~ ), as described in Section 3.18 of this Agreement, and (B) if any Reporting Servicer's report on assessment of compliance with servicing criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on assessment of compliance with servicing criteria described in Section 3.18 of this Agreement 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, (iii) (A) the registered public accounting firm attestation report for the Servicer ~~will cause its senior officer~~ and each Subservicer, as described in ~~charge~~ Section 3.18 of ~~securitization~~ this Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of this Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to ~~execute the certification~~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 in the form attached hereto as Exhibit ~~O-1~~ R, executed by the senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee ~~shall sign a certification (~~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 ~~form attached hereto as Exhibit O-2~~next paragraph. (f) ~~for~~ As set forth in Schedule Z hereto, no later than March 12th of each year that the ~~benefit of~~ Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor and the ~~Servicer and their officers~~Servicer, ~~directors and affiliates regarding certain aspects of~~ to the extent known, any Additional Form 10-K ~~Certification~~ Disclosure, if applicable, and (ii) the ~~“Trustee’s Certification”). To~~ Depositor shall, to the extent ~~any information~~ it deems necessary, forward to the Trustee in XXXXX-compatible form, or ~~exhibits required to be included~~ in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-K ~~are not timely received~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~prior to the~~ in connection with including any Additional Form 10-K ~~Filing Deadline, the Trustee shall,~~ Disclosure on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K ~~by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information~~ pursuant to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination)this paragraph. (bg) ~~The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless~~ After preparing the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by forward electronically a draft copy of the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver Form 10-K to the Depositor and the Servicer ~~a copy~~ for review. Upon the request of ~~any such executed report~~the Servicer, ~~statement or information.~~ the Depositor shall confirm that it has reviewed the Form 10K, that it has been properly prepared and that the Servicer may rely on the accuracy thereof (~~h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ other than with respect to ~~periods for which reports are required to be filed~~ any portion of the Form 10-K or any exhibit thereto provided by the Servicer (other than any portion of the Form 10-K or any exhibit thereto with respect to which the ~~Trust under~~ Servicer has relied on the ~~Exchange Act~~Trustee)). ~~Prior to January 30~~ No later than 5:00pm New York City time on the third Business Day following receipt of a final copy of the ~~first year in which the Trustee is able to do so under applicable law~~Form 10-K and, if requested, the ~~Trustee shall file~~ above described confirmation from the Depositor, a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) senior officer of the ~~Exchange Act or~~ Servicer shall sign the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and return an electronic or fax copy of such signed Form 10-~~D as required pursuant~~ K (with an original executed hard copy to ~~this Section 3.22~~ follow by overnight mail) to the Trustee, and the ~~parties hereto~~ Trustee shall ~~again have~~ file such Form 10-K by March 30th. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the ~~obligations~~ Trustee will follow the procedures set forth in this ~~Section. (i) For so long as reports are required to be filed~~ Agreement. After filing with the ~~Securities and Exchange Commission under~~ Commission, the ~~Exchange Act~~ Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to ~~the Trust~~any failure to properly prepare, ~~each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation~~ execute or ~~proceeding that would be material to Certificateholders pending against~~ file such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-~~D with respect to the Trust~~K on a timely basis. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-Wmc2)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Sponsor or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the ~~Certificateholders~~ Certificateholxxxx for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in EDGAR-compatible form (or such other word processing format that is XXXXR-compatible) (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other fxxx xs otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification in the form attached hereto as Exhibit X, xxxxxxxx xy the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in EDGAR-compatible form (or such other word processing format that is XXXXR-compatible), or in such other form as otherwise agreed upon bx xxx Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. ET on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Sarbanes-Oxley Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB.~~ form attached xxxxxx xx Xxxxbit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”)~~ Oxley Certification required pursuant to Rule 13a -14 ~~under the Securities~~ undex xxx Xxxxxxxxes Exchange Act of 1934, as amended, and to deliver the original executed Sarbanes-Oxley Certification to the Trustee ~~shall file the same with the Securities and Exchange Commission prior~~ by March 12 of each yeax xx xxxxx xxx Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Sarbanes-~~K Certification (the “Trustee’s~~ Oxley Certification”). To the extent any information or ~~exhibits required~~ exhixxxx xxxxxxxx to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Xxxxty, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-Sd1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2007, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Ff1)

Periodic Filings. (a) The Trustee will prepare and file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit SR, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify the Depositor of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~"XXXXX"), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit TS, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit TS; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to March 31 30 of each subsequent year~~) (the “Form 10-K Filing Deadline”~~), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via ~~EXXXX~~ XXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit UT, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s 's Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s 's Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit ~~O-1~~ P-3 (the “"Form 10-K Certification”") required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to ~~the Form 10-K Filing Deadline~~Xxxxx 00, 0000 (xxx, if applicable, prior to March 30 of each year). In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~P-5) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “"Trustee’s 's Certification”"). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the ~~Depositor~~Servicer. Upon receipt of written notice to the Trustee via electronic mail to ~~mxxxxxx.xxxxxxxx@xxxxxx.xxx~~xxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to ~~sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx~~xxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the ~~Depositor~~ Servicer that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the ~~Depositor~~ Servicer (such signature page to have been delivered by the Servicer to the Trustee on the Closing Date) and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 8-Ks, 10-Ds and 10-Ks ~~and the Depositor shall execute any and all Form 8-Ks and 10-Ds~~ required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the ~~EXXXX~~ XXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section ~~3.22(a~~3.29(a), (y) or Trustee’s 's negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s 's Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s 's or any other party’s 's breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s 's failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section ~~3.22(a~~3.29(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s 's breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.29, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.29 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement3. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-Cb8)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor, the Master Servicer, the Securities Administrator, the Trustee or the ~~Servicer~~ Servicers shall have timely notified the ~~Trustee~~ Master Servicer and the Securities Administrator of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Securities Administrator, in which case the Securities Administrator will be deemed to have notice), (ii) the Trustee, the Depositor, the Sponsor, the Servicer or the Master Servicer shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Master Servicer and Securities Administrator, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic or other such other~~ a word format ~~reasonably acceptable to~~ agreed upon by the ~~Trustee. To~~ Master Servicer, the ~~extent that a Responsible Officer of~~ Securities Administrator and Depositor, Sponsor, the ~~Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K~~Master Servicer, the Trustee or the related Servicer and (iii) the Depositor or the Master Servicer and Securities Administrator, to the extent the reportable item pertains to such party, shall notify the ~~Depositor of such event~~Master Servicer thereof by telephone. The ~~Trustee~~ Securities Administrator shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Securities Administrator, in which case the Securities Administrator will be responsible for consulting with the Depositor and Master Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Securities Administrator, in which case the Securities Administrator will be responsible for consulting with the Depositor, Master Servicer, Trustee or related Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Securities Administrator shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and Master Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Securities Administrator, a duly authorized representative 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 and the Securities Administrator shall file such Form 8-K; provided that the Depositor has notified the Securities Administrator and Master Servicer that it approves of the form and substance of such 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 this Agreement. After filing with the Commission, the Securities Administrator will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Securities Administrator will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the ~~Trustee~~ Securities Administrator shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Securities Administrator by the Master Servicer, the Securities Administrator, the Servicers the Trustee ~~as identified on Exhibit T; provided that such information is provided~~ or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Trustee~~ following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Master Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Securities Administrator in XXXXX-compatible form (with a copy to the Master Servicer), or in such other form as otherwise agreed upon by the Securities Administrator and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the Distribution Date. The Depositor will be responsible for any reasonable fees and expenses 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 at the direction of the Depositor, the Securities Administrator will forward electronically a draft copy of the Form 10-D to the Depositor and the Master Servicer for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, unless the Master Servicer receives a notice from the Securities Administrator as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Master Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Securities Administrator and the Securities Administrator shall file such Form 10-D within two business days. Unless the Master Servicer shall have received notice from the Securities Administrator to the contrary, the Securities Administrator will be deemed to have represented to the Master Servicer that the Monthly Statement has been properly prepared by the Securities Administrator and the Master Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Securities Administrator per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in this Agreement. After filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-D. The Securities Administrator will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the ~~Trustee~~ Securities Administrator shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 10-K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Trustee~~ Securities Administrator within the applicable time frames set forth in this Agreement, (~~or the Depositor~~i) an annual compliance statement for each Servicer and each Subservicer, as described in ~~the case~~ Section 3.17 of the ~~Trustee’s~~ Agreement, (ii)(A) the annual reports on Assessment of ~~Compliance)~~ Compliance with Servicing Criteria for each of the Master Servicer, Securities Administrator, Custodian, Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB~~. The Servicer will cause its senior officer~~ ), as described in ~~charge~~ Section 3.18 of ~~securitization~~ the Agreement, and (B) if any Servicer's report on Assessment of Compliance with Servicing Criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on Assessment of Compliance with Servicing Criteria described in Section 3.18 of the Agreement is not included as an exhibit to ~~execute~~ such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the ~~certification~~registered public accounting firm attestation report for each of the Master Servicer, Securities Administrator, Custodian and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit ~~O-1~~ T, executed by the senior officer in charge of securitizations of the Master Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the ~~Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit~~ direction of the Depositor pursuant to the following paragraph and neither the Master Servicer ~~and their officers, directors and affiliates regarding certain aspects of~~ nor the Securities Administrator will have any duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included~~ Disclosure, except as set forth in the ~~Form 10-K are not timely received by~~ next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the ~~Trustee prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~Exchange Act reporting requirements, ~~the Trustee shall~~commencing in 2007, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) ~~no notice is provided~~ certain parties to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment transaction shall be ~~made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement~~ required to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver provide to the Depositor and the ~~Servicer a copy of~~ Securities Administrator, to the extent known, any ~~such executed report~~Additional Form 10-K Disclosure, ~~statement or information. (h) The obligations set forth in paragraphs (a)~~ if applicable, and (bii) ~~of this Section shall only apply with respect to periods for which reports are required to be filed with respect~~ the Depositor shall, to the ~~Trust under~~ extent it deems necessary, forward to the ~~Exchange Act. Prior to January 30~~ Securities Administrator in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and the Depositor, the form and substance of the ~~first year~~ Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Securities Administrator in ~~which the Trustee is able to do so under applicable law, the Trustee shall file a~~ connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-K Disclosure on Form 10-K ~~and 10-D as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-He5)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Sponsor or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (or such other word processing format that is XXXXX-compatible) (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the ninetieth (90th) calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (i) (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (or such other word processing format that is XXXXX-compatible), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee 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 Trustee shall forward electronically a draft copy of the Form 10-K to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall confirm that it has reviewed the Form 10-K, that it has been properly prepared and that the Servicer may rely on the accuracy thereof (other than with respect to any portion of the Form 10-K or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K by March 30th. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the ~~case~~ Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee~~’s Assessment of Compliance~~'s inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx Certification") ~~and such other information~~ which shall be in the form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-3)

Periodic Filings. Within four (a4) ~~The Trustee will prepare and file Current Reports~~ Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of~~ (each such event, a "Reportable Event"), and if requested by the ~~Trust at~~ Depositor and to the ~~direction and expense of~~ extent it receives the ~~Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a~~ Form 8-K ~~and shall have delivered to~~ Disclosure Information described below, the Trustee ~~no later than three Business Days prior to~~ shall prepare and file on behalf of the ~~filing deadline for such~~ Trust a Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such~~ that the Depositor shall file the initial Form 8-K in ~~electronic~~ connection with the issuance of the Certificates. Any disclosure or ~~other~~ information related to a Reportable Event or that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Exhibit X and directed and approved by the Depositor, and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information absent such ~~other format reasonably acceptable~~ reporting, direction and approval. For so long as the Trust is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (i) each party listed on Exhibit X hereto shall use commercially reasonable best efforts to provide immediate notice to the Trustee~~. To~~ , the Depositor and the Servicer, by fax and by phone or by e-mail and by phone (using the contact information set forth in Section 10.05 or, in the case of the Trustee, set forth on Exhibit T), (ii) each such party shall be required to provide to the Trustee, the Servicer and the Depositor, to the extent ~~that a Responsible Officer~~ known, in Word format or such other XXXXX-compatible format as agreed upon by the Trustee, the Depositor and such party, the Form 8-K Disclosure Information described on Exhibit X applicable to such party, together with the form set forth on Exhibit T (the "Additional Disclosure Notification") by Noon New York City time on the 2nd Business Day following the occurrence of such Reportable Event, (iii) the Servicer shall provide to the Trustee, within 2 Business Days of its receipt of notice pursuant to clause (i) above, an executed signature page for Form 8-K to be held by the Trustee until its release by the Servicer to the Trustee, and (iv) the Depositor, by the end of business New York City time on the 2nd day following such Reportable Event, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Trustee has ~~actual knowledge~~ no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit X of ~~an event relating~~ their duties under this paragraph or proactively solicit or procure from such parties any 83 Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to ~~Items 3.03, 6.02, 6.03 or 6.04 of~~ this paragraph. After preparing the Form 8-K, the Trustee shall ~~notify~~ forward electronically, no later than noon New York City time on the 3rd Business Day after the Reportable Event, a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than [1:00 pm] New York City time on the 4th Business Day after the Reportable Event, a senior officer of ~~such event~~the Servicer shall release the signature page to the Form 8-K delivered pursuant to clause (iii) of the preceding paragraph (with an original executed hard copy to follow by overnight mail to the Trustee). ~~The Trustee shall not be responsible for determining what information is required to be filed on~~ If a Form 8-K ~~in connection with the transactions contemplated by this Agreement~~ cannot be filed on time or ~~what events shall cause~~ if a previously filed Form 8-K needs to be ~~required~~ amended, the Trustee will follow the procedures set forth in the third to ~~be filed and shall not be liable for any late~~ last paragraph of this Section 3.20. Promptly (but no later than 1 Business Day) after filing with the Commission, the Trustee will make available on its internet website a final executed copy of a each Form 8-K prepared by the Trustee. The signing party at the Servicer can be contacted at (000) 000-0000 or (000) 000-0000. The parties to this Agreement acknowledge that the performance by the Trustee or the Servicer of its respective duties under this Section 3.20 related to the timely preparation and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event that it does not receive all information~~performance of their duties under this Section 3.20. Neither the Trustee nor the Servicer shall have any liability for any loss, ~~data~~expense, ~~signatures and exhibits required~~ damage or claim arising out of or with respect to ~~be provided~~ any failure to properly prepare and/or timely file such Form 8-K, where such failure results from the Trustee's or ~~filed~~ the Servicer's, as applicable, inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or ~~prior to the second Business Day prior to the applicable filing deadline.~~ file such Form 8-K. Within 15 fifteen days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such other information provided~~ thereto. Any necessary disclosure in addition to the ~~Trustee as identified~~ Monthly Statement that is required to be included on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-~~K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ D ("Additional Form 10-~~K with respect~~ D Disclosure") shall, pursuant to the ~~Trust Fund. To facilitate~~ paragraph immediately below, be reported by the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19~~ Y and ~~each Accountant’s Attestation~~ directed and ~~Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or~~ approved by the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction determine or ~~withdrawal of the rating of~~ prepare any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Additional Form 10-KD Disclosure absent such reporting, ~~the Trustee shall not undertake any analysis of,~~ direction and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement approval. As set forth in ~~Section 4.06(a) hereof. (f) The Depositor~~Schedule Y hereto, for so long as the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. related Distribution Date (i) ~~For so long as reports are~~ each party hereto shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to ~~the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify~~ the Depositor and the ~~Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or~~Trustee, ~~in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect~~ to the ~~Depositor, the Trustee and the Seller~~extent known, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D ~~with respect~~ Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), applicable to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such ~~shorter period that the registrant was required to file such reports)~~party, and (2ii) ~~has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by~~ the Depositor ~~within such 10 day-period of time~~will approve, ~~the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative~~ as to ~~clauses (1)~~ form and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicersubstance, or ~~the Trustee~~disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses, claims, damages~~ Additional Form 10-D Disclosure and shall forward such Additional Form 10-D Disclosure to the Trustee in Word format or ~~liabilities of the Servicer, or the Trustee,~~ such other XXXXX-compatible format as ~~the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or~~ agreed by the Trustee and ~~its respective officers~~the Depositor, ~~directors and Affiliates on~~ together with the ~~one hand~~ Additional Disclosure Notification. The Trustee and the Servicer have no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit Y of their 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 incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the ~~other.~~Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review. No later than two (2) Business Days after receipt of a final copy after the related Distribution Date, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such 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 Trustee will follow the procedures set forth in the third to last paragraph of this 84

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-He1)

Periodic Filings. Within four (a4) ~~The Trustee will prepare and file Current Reports~~ Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of~~ (each such event, a "Reportable Event"), and if requested by the ~~Trust at~~ Depositor and to the ~~direction and expense of~~ extent it receives the ~~Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a~~ Form 8-K ~~and shall have delivered to~~ Disclosure Information described below, the Trustee ~~no later than three Business Days prior to~~ shall prepare and file on behalf of the ~~filing deadline for such~~ Issuing Entity a Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such~~ that the Depositor shall file the initial Form 8-K in ~~electronic~~ connection with the issuance of the Certificates. Any disclosure or ~~other~~ information related to a Reportable Event or that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Schedule X and directed and approved by the Depositor, and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information absent such ~~other format reasonably acceptable~~ reporting, direction and approval. For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (i) each party listed on Schedule X hereto shall use commercially reasonable best efforts to provide immediate notice to the Trustee~~. To~~ , the Depositor and the Servicer, by fax and by phone or by e-mail and by phone (using the contact information set forth in Section 10.05 or, in the case of the Trustee, set forth on Exhibit T) and the Trustee will forward by fax or by email to the Servicer by the next Business Day the signature page for the Form 8-K, AND (ii) each such party shall be required to provide to the Trustee, the Servicer and the Depositor, to the extent ~~that a Responsible Officer~~ known, in word format or such other EDGAR-compatible format as agreed upon by the Trustee, the Depositor anx xxxh party, the Form 8-K Disclosure Information described on Schedule X applicable to such party, together with the form set forth on Exhibit T (the "Additional Disclosure Notification") by Noon New York City time on the second Business Day following the occurrence of such Reportable Event, and (iii) the Depositor, by the end of business New York City time on the second day following such Reportable Event, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Trustee has ~~actual knowledge~~ no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule X of ~~an event relating~~ their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to ~~Items 3.03, 6.02, 6.03 or 6.04 of~~ this paragraph. After preparing the Form 8-K, the Trustee shall ~~notify~~ forward electronically, no later than Noon New York City time on the third Business Day after the Reportable Event, a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than Noon New York City time on the fourth Business Day after the Reportable Event, a senior officer of ~~such event~~the Servicer shall sign the Form 8-K (with an original executed hard copy to follow by overnight mail to the Trustee). ~~The Trustee shall not be responsible for determining what information is required to be filed on~~ If a Form 8-K ~~in connection with the transactions contemplated by this Agreement~~ cannot be filed on time or ~~what events shall cause~~ if a previously filed Form 8-K needs to be ~~required~~ amended, the Trustee will follow the procedures set forth in the third to ~~be filed and shall not be liable for any late~~ last paragraph of this Section 3.20. Promptly (but no later than one (1) Business Day) after filing with the Commission, the Trustee will make available on its internet website a final executed copy of a each Form 8-K prepared by the Trustee. The signing party at the Servicer can be contacted at (503) 952-7351 or (503) 952-7958. The parties to this Agreement acknowlxxxx xxxx xxx perfxxxxxxx xx xxx Trustee or the Servicer of its respective duties under this Section 3.20 related to the timely preparation and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event that it does not receive all information~~performance of their duties under this Section 3.20. Neither the Trustee nor the Servicer shall have any liability for any loss, ~~data~~expense, ~~signatures and exhibits required~~ damage or claim arising out of or with respect to ~~be provided~~ any failure to properly prepare and/or timely file such Form 8-K, where such failure results from the Trustee's or ~~filed~~ the Servicer's, as applicable, inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or ~~prior to the second Business Day prior to the applicable filing deadline.~~ file such Form 8-K. Within 15 fifteen (15) days after each Distribution ~~Date,~~ Date (subject to permitted extensions under the ~~Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and~~ Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”Act), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the Securities and Exchange Commission (the "Commission") via ~~EXXXX~~ the Electronic Data Gathering and Retrieval System (EDGAR), a Form 10-K D with (1) a copy of the report to the Certificateholxxxx for such Distribution Date as an exhibit thereto. Any necessary disclosure in addition to the Monthly Statement that is required to be included on Form 10-D ("Additional Form 10-D Disclosure Information") shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Exhibit T and directed and approved by the Depositor, and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure Information absent such reporting, direction and approval. As set forth in Schedule Y hereto, for so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the related Distribution Date (i) each party hereto shall be required to provide to the Depositor, the Servicer and the Trustee, to the extent known, any Additional Form 10-D Disclosure Information (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), 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 Information and shall forward such Additional Form 10-D Disclosure Information to the Trustee in word format or such other EDGAR-compatible format as agreed by the Trustee and the Depositor, togxxxxx with the Additional Disclosure Notification. The Trustee and the Servicer have no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule Y of their 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 incurred by the Trustee in connection with including any Additional Form 10-D Disclosure Information on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review no later than four (4) Business Days prior to the 15th calendar day after the related Distribution Date. No later than two (2) Business Days prior to the 15th calendar day after the related Distribution Date, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such 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 Trustee will follow the procedures set forth in the third to last paragraph of this Section. Promptly (but not later than one Business Day) after filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The parties to this Agreement acknowledge that the performance by the Trustee or the Servicer of its respective duties under this Section 3.20 related to the timely preparation and filing of Form 10-D is contingent upon the other parties hereto strictly observing all applicable deadlines in the performance of their duties under this Section 3.20. Neither the Trustee nor the Servicer will have any liability for any loss, expense, damage or claim arising out of or with respect to ~~the Trust Fund. To facilitate~~ any failure to properly prepare, and/or timely file such Form 10-D resulting from the Trustee~~’s preparation~~ 's or the Servicer's, as applicable, inability or failure to receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Trustee, the Servicer and each Sub-Servicer and Sub-Contractor (if applicable), as described in Section 3.18 of this Agreement, and (B) if any registered public accounting firm attestation report described under Section 3.18 of this Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification (defined below) in the form attached heretx xx Xxxxxxx X, executed by the senior officer in charge of securitizations of the Servicer. 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 Information") shall be reported by the parties as set forth in Schedule Z and directed and approved by the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure Information absent such reporting, direction or approval. As set forth in Schedule Z hereto, no later than four (4) Business Days before March 15 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in March 2007, (i) certain parties to the transaction shall be required to provide to the Depositor, the Servicer and the Trustee, to the extent known, any Additional Form 10-K Disclosure Information, 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 Information and shall forward such Additional Form 10-K Disclosure Information to the Trustee in word format or such other EDGAR-compatible format as agreed by the Trustee and the Depositor, togxxxxx with the Additional Disclosure Notification. The Trustee and the Servicer have no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule Z of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-K Disclosure Information on Form 10-K pursuant to this paragraph. After preparing the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trusteeshall, no later than ~~thirty (30) days~~ the seventh Business Day prior to the ~~Form~~ 10-K Filing Deadline, forward electronically a draft copy of the Form 10-K to the Depositor and the Servicer for review. No later than 5:00 PM EST on the fourth Business Day prior to the 10-K Filing Deadline, a senior officer of the 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 Trustee and the Trustee shall file such 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 Trustee will follow the procedures set forth in the third to last paragraph of this Section. Promptly (but no later than one (1) Business Day) after filing with the Commission, the Trustee will, pursuant to the Agreement, make available on its internet website a final executed copy of each Form 10-K. The parties to this Agreement acknowledge that the performance by each of the Trustee and the Servicer of its respective duties under this Section 3.20 related to the timely preparation and filing of Form 10-K is contingent upon such parties (and any ~~comments~~ Sub-Servicer or Sub-Contractor) strictly observing all applicable deadlines in the performance of their duties under this Section 3.20, Section 3.17 and Section 3.18. The Trustee and the Servicer shall have no liability for any loss, expense, damage or claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 10-K ~~template~~resulting from the Trustee's or the Servicer's, as applicable, inability or failure to receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. ~~As set forth on Exhibit U, such~~ Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Sarbanes-Oxley Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB.~~ form attached herexx xx Xxxxxxx R. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”)~~ Oxley Certification required pursuant to Rule 13a -14 under ~~the Securities Exchange~~ thx Xxxxxxxxxx Xxchange Act of 1934, as amended, and to deliver the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K original executed Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that four (i4) ~~no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first~~ Business ~~Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by~~ Days before March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. Prior to January 30 of the first year in which the ~~Trustee~~ Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.to

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the ~~Certificateholders for~~ Certificateholderx xxx such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in EDGAR-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other xxxx as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification in the form attached hereto as Exhibit T, xxxxxxxx xx xhe senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in EDGAR-compatible form, or in such other form as otherwise agreed upon xx xxe Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Sarbanes-Oxley Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB.~~ form attached herxxx xx Xxxxxxx T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”)~~ Oxley Certification required pursuant to Rule 13a -14 under ~~the Securities~~ txx Xxxxxxxxxx Exchange Act of 1934, as amended, and to deliver the original executed Sarbanes-Oxley Certification to the Trustee ~~shall file the same with the Securities and Exchange Commission prior~~ by March 12 of each year ix xxxxx xxx Xxsuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Sarbanes-~~K Certification (the “Trustee’s~~ Oxley Certification”). To the extent any information or ~~exhibits required to~~ exhibitx xxxxxxxx xx be included in the Form 10-K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Enxxxx, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Rm4)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule V hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S~~(a "reportable event"), the Depositor, the ~~Seller~~ Sponsor or the ~~Servicer~~ Servicer, as applicable, shall have (i) timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and ~~shall have~~ (ii) delivered to the Trustee ~~no later than three Business Days prior to the filing deadline for such Form 8-K,~~ all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ an EDGAR-compatible format agreed upon by the Trustee and Depositor, Sxxxxxr or ~~other~~ Servicer. In the event that the reportable event does not pertain to the Servicer, at the time such ~~other format reasonably acceptable~~ notice is provided to the Trustee~~. To~~ , the Depositor or the Trustee, to the extent ~~that a Responsible Officer of~~ the ~~Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than the end of business on the second Business Day after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K within two (2) Business Days; provided that the Depositor has notified the Trustee in writing that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing a Form 8-K with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information or signatures needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the ~~Certificateholders~~ Certificateholxxxx for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed with~~ shall be determined and prepared by and at the ~~SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out~~ direction of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute Depositor pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicerfollowing paragraph, and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction determine or ~~withdrawal of the rating of~~ prepare any ~~outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee~~ additional information on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement D ("Additional Form 10-D Disclosure") as set forth in ~~Section 4.06(a) hereof. (f)~~ the next paragraph. The ~~Depositor, the Servicer and~~ Depositor shall notify the Trustee ~~agree~~ of its intent to ~~use their good faith efforts~~ provide Additional Form 10-D Disclosure prior to ~~cooperate~~ the related Distribution Date. As set forth in ~~complying with~~ Schedule W hereto, within five (5) calendar days after the ~~requirements of this Section 3.22.~~ related Distribution Date (gi) ~~Upon any filing with~~ the ~~Securities and Exchange Commission~~parties hereto, ~~the Trustee shall promptly deliver~~ as applicable, will be required to provide to the Depositor and the ~~Servicer~~ Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the 95 party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, will forward to the Trustee in EDGAR-compatible form (with a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the ~~Trust under~~ Servicer), or in such othxx xxrm as otherwise agreed upon by the ~~Exchange Act. Prior to January 30~~ Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-D Disclosure by the fifth (5th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust, Series 2006-Bc3)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a Word format (or other ~~such other format reasonably acceptable~~ Edgar-compatible form) agreed upon by the Trustee and Depositor, Sponxxx xr Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the ~~Certificateholders for~~ Certificateholdexx xxr such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in EDGAR-compatible form (or such other word processing format that is EXXXX-compatible) (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other forx xx otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification in the form attached hereto as Exhibit T, xxxxxxxx xx the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in EDGAR-compatible form (or such other word processing format that is EXXXX-compatible), or in such other form as otherwise agreed upon by xxx Xrustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. ET on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Sarbanes-Oxley Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB.~~ form attached hexxxx xx Xxxxxxt T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”)~~ Oxley Certification required pursuant to Rule 13a -14 under ~~the Securities~~ xxx Xxxxxxxxxx Exchange Act of 1934, as amended, and to deliver the original executed Sarbanes-Oxley Certification to the Trustee ~~shall file the same with the Securities and Exchange Commission prior~~ by March 12 of each year xx xxxxx xxx Xssuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Sarbanes-~~K Certification (the “Trustee’s~~ Oxley Certification”). To the extent any information or ~~exhibits required to~~ exhibixx xxxxxxxx xx be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Exxxxx, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements (each in Edgar-compatible format) within its control related to this Agreement ~~and~~ xxx the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required ~~hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word~~hereunder. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the The Trustee shall ~~without further notice conclude that there is no event or information~~ not have any responsibility to ~~be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of~~ file any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses items (other than ~~punitive damages~~those generated by it) that have not been received in a format suitable (or readily convertible into a format suitable) for electronic filing via the EDGAR system and shall not have any ~~of them may sustain in~~ responsibility to convert any ~~way related~~ sucx xxxms to such format (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than ~~any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s~~ those items generated by it or ~~any other party’s breach of its obligations under this Agreement or any other related agreement~~that are readily convertible to such format). If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the Certificateholders ~~and without~~ but with the ~~requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal~~ consent of the ~~rating of any outstanding~~ Class ~~of Certificates with respect to~~ A Certificate Insurer (which ~~it is a Rating Agency. Such amendment~~ consent shall not be unreasonably withheld), and may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-FFC)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ffa)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the ninetieth (90th) calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 10 -K with -104- (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~with respect~~ ("Additional Form 10-K Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Trust Fund~~following paragraph and the Trustee 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. ~~To facilitate~~ As set forth in Schedule Z hereto, no later than March 12 of each year that the ~~Trustee’s preparation~~ Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee 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 Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2007, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2006-Ff18)

Periodic Filings. (ai) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of~~ (each such event, a "Reportable Event"), and if directed by the ~~Trust at~~ Depositor and to the ~~direction and expense of~~ extent it receives the ~~Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a~~ Form 8-K ~~and shall have delivered to~~ Disclosure Information described below, the Trustee ~~no later than three Business Days prior to~~ shall prepare and file on behalf of the ~~filing deadline for such~~ Issuing Entity a Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such~~ that the Depositor shall file the initial Form 8-K in ~~electronic~~ 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 (other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Exhibit W and directed and approved by the Depositor, and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information absent such reporting, direction and approval. (ii) For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (A) each party listed on Exhibit W hereto shall use commercially reasonable best efforts to provide immediate notice to the Trustee and the Depositor, by fax and by phone or by e-mail and by phone (using the contact information set forth in Section 11.07 or, in the case of the Trustee, set forth on Exhibit U), (B) each such party shall be required to provide to the Trustee and the Depositor, to the extent known, in XXXXX-compatible format or in such other format ~~reasonably acceptable to~~ as agreed upon by the Trustee~~. To~~ , the ~~extent that a Responsible Officer~~ Depositor and such party, the Form 8-K Disclosure Information described on Exhibit W applicable to such party, together with the form set forth on Exhibit U (the "Additional Disclosure Notification") by Noon New York City time on the 2nd Business Day following the occurrence of such Reportable Event and (C) the Depositor, by the end of business New York City time on the 2nd day following such Reportable Event, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Trustee has ~~actual knowledge~~ no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit W of ~~an event relating~~ their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to ~~Items 3.03, 6.02, 6.03 or 6.04 of~~ this paragraph. (iii) After preparing the Form 8-K, the Trustee shall forward electronically, no later than Noon New York City time on the third Business Day after the Reportable Event (but in no event earlier than 24 hours after having received the Form 8-K Disclosure Information pursuant to the immediately preceding paragraph), a draft copy of the Form 8-K to the Depositor for review. No later than the close of business on the third Business Day after the Reportable Event, the Depositor shall notify the ~~Depositor~~ Trustee of any changes to or approval of such ~~event~~Form 8-K. No later than 12:00 noon New York City time on the fourth Business Day after the Reportable Event, a senior officer of the Depositor 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 Trustee. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Trustee will follow the procedures set forth in Section 9.21(xiv). (iv) Promptly (but no later than one Business Day) after filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 8-K prepared by the Trustee. The signing party at the Depositor can be contacted at (000) 000-0000. The parties to this Agreement acknowledge that the performance by the Trustee of its duties under this Section 9.21 related to the timely preparation, arrangement for execution and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the performance of their duties under this Section 9.21. The Trustee shall not ~~be responsible~~ have any liability for ~~determining what information is required~~ any loss, expense, damage or claim arising out of or with respect to ~~be filed on a~~ any failure to properly prepare, arrange for preparation and/or timely file such Form 8-~~K in connection with~~ K, where such failure results from the ~~transactions contemplated by this Agreement~~ Trustee's inability or ~~what events shall cause~~ failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. K. (v) Within 15 fifteen days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such other information provided~~ thereto. Any necessary disclosure in addition to the ~~Trustee as identified~~ Monthly Statement that is required to be included on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-~~K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ D ("Additional Form 10-~~K with respect~~ D Disclosure") shall, pursuant to the ~~Trust Fund. To facilitate~~ paragraph immediately below, be reported by the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required~~ X to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the ~~Servicer~~ Trustee and ~~their officers, directors~~ directed and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received approved by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to ~~amend the provisions of this Section 3.22 in order to comply with~~ determine or prepare any Additional Form 10-D Disclosure absent such ~~amended reporting requirements~~ reporting, direction and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreementapproval. (evi) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement As set forth in ~~Section 4.06(a) hereof. (f) The Depositor~~Exhibit X hereto, for so long as the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the related Distribution Date (i) each party listed on Exhibit X hereto shall be required to provide to the Depositor and the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the ~~Trust~~extent known, ~~each of the Depositor,~~ in Xxxxx-compatible format or in such other format as agreed upon by the Trustee, the ~~Servicer and the Seller shall notify the~~ Depositor and ~~the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against~~ such ~~notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller~~party, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D ~~with respect~~ Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), applicable to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such ~~shorter period that the registrant was required to file such reports)~~party, and (2ii) ~~has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by~~ the Depositor ~~within such 10 day-period of time~~will approve, ~~the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative~~ as to ~~clauses (1)~~ form and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicersubstance, or ~~the Trustee~~disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses, claims, damages~~ Additional Form 10-D Disclosure and shall forward such Additional Form 10-D Disclosure to the Trustee in XXXXX-compatible format or ~~liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates~~ in such ~~proportion~~ other format as ~~is appropriate to reflect the relative fault of the Servicer, or~~ agreed by the Trustee and ~~its respective officers~~the Depositor, ~~directors and Affiliates on~~ together with the ~~one hand~~ Additional Disclosure Notification. The Trustee and the Servicer have no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit X of their 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 incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (vii) After preparing the ~~other.~~Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor for review and execution. No later than two (2) Business Days prior to the 15th calendar day after the related Distribution Date, a duly authorized representative of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such 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 Trustee will follow the procedures set forth in

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series MLCC 2006-1)

Periodic Filings. As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second (a2nd) ~~The Trustee will prepare and file Current Reports~~ Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S~~(a "reportable event"), the Depositor, the ~~Seller~~ Sponsor or the Servicer (i) shall have timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a Word format (or other ~~such other format reasonably acceptable~~ Xxxxx-compatible form) agreed upon by the Trustee and the Depositor, Sponsor or Servicer. The Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed with~~ shall be determined and prepared by and at the ~~SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out~~ direction of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute Depositor pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, following paragraph and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction determine or ~~withdrawal of the rating of~~ prepare any ~~outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee~~ additional information on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement D ("Additional Form 10-D Disclosure") as set forth in ~~Section 4.06(a~~the next paragraph. As set forth in Schedule Y hereto, within five (5) ~~hereof.~~ calendar days after the related Distribution Date (fi) ~~The Depositor~~the parties hereto, ~~the Servicer and the Trustee agree~~ as applicable, will be required to ~~use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver~~ provide to the Depositor and the ~~Servicer~~ Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (or such other word processing format that is XXXXX-compatible) (with a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the ~~Trust under~~ Servicer), or in such other form as otherwise agreed upon by the ~~Exchange Act. Prior to January 30~~ Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-A)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S~~(a "reportable event"), the Depositor, the ~~Seller~~ Sponsor or the Servicer (i) shall have timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format (or other ~~such other~~ word processing format ~~reasonably~~ that is acceptable to the Trustee) agreed upon by the Trustee and Depositor, Sponsor or Servicer. To The Depositor or the Trustee, to the extent ~~that a Responsible Officer of~~ the ~~Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K -104- in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in a Microsoft Word format (or other word processing format that is acceptable to the ~~first Business Day immediately following~~ Trustee) (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two (2) Business Days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in a Microsoft Word format (or other word processing format that is acceptable to the Trustee), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ -106- After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements in a Microsoft Word format (or other word processing format that is acceptable to the Trustee) within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required ~~hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word~~hereunder. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the The Trustee shall ~~without further notice conclude that there is no event or information~~ not have any responsibility to ~~be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of~~ file any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses items (other than ~~punitive damages~~those generated by it) that have not been received in a format suitable (or readily convertible into a format suitable) for electronic filing via the XXXXX system and shall not have any ~~of them may sustain in~~ responsibility to convert any ~~way related~~ such items to such format (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than ~~any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s~~ those items generated by it or ~~any other party’s breach of its obligations under this Agreement or any other related agreement~~that are readily convertible to such format). If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-5)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X 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 an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and (ii) shall have delivered to the Trustee no later than ~~three~~ two Business Days prior to the filing deadline for such Form 8-K, all information, signatures, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic or other such other~~ a word format ~~reasonably acceptable to the Trustee. To the extent that a Responsible Officer of~~ agreed upon by the Trustee ~~has actual knowledge of an event relating to Items 3.03~~and Depositor, ~~6.02, 6.03~~ Seller or ~~6.04 of Form 8-K, the Trustee shall notify the Depositor of such event~~Servicer. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor [or Servicer] in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor [or Servicer] before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than the end of business on the 3rd business day after the event requiring the filing of Form 8-K, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K within two business days . If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of such draft copy after the related Distribution Date, unless the servicer receives a notice from the Trustee as described below, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the trust), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (i) an annual (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit R, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee 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 Trustee shall forward electronically a draft copy of the Form 10-K to the Depositor and the Servicer for review. No later than 5:00pm EST on the 3rd Business Day following receipt thereof, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K by March 20th. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the ~~case~~ Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on its internet website a final executed copy of each Form 10-K. the Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee~~’s Assessment of Compliance~~'s inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx Certification") ~~and such other information~~ which shall be in the form attached hereto as ~~is required by Regulation AB.~~ Exhibit R. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Trust is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and affiliates regarding certain aspects of the Form 10-K ~~Certification (the “Trustee’s~~ Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted by the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all ~~Form 10-Ks and the Depositor shall execute any and all Form~~ form 8-Ks and 10-Ds Ks required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Sl1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the ~~Certificateholders~~ Certificatxxxxxers for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed~~ shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in EDGAR-compatible form (with a copy to the ~~SEC~~Servicer), ~~other than~~ or in such othxx xxrm as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the Distribution Date. The Depositor will be responsible for any ~~losses, damages, penalties, fines, forfeitures,~~ reasonable ~~and necessary legal fees and related costs, judgments and other costs,~~ fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then incurred by the Trustee ~~shall contribute~~ in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or this paragraph. After preparing the Form 10-~~K within~~ D at the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none direction of the Depositor, the ~~Servicer and~~ Trustee will forward electronically a draft copy of the ~~Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than 2 business days after receipt of a final copy ~~of any such executed report~~after the related Distribution Date, ~~statement~~ unless the Servicer receives a notice from the Trustee as described below or ~~information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to ~~periods for which reports are required~~ such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to ~~be filed with respect~~ follow by overnight mail) to the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the~~ Trustee ~~is able to do so under applicable law,~~ and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the Monthly Statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form ~~15 Suspension Notification~~ 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the ~~Trust. At~~ Trustee's inability or failure to obtain or receive any ~~time after~~ information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the ~~filing of a Form 15 Suspension Notification~~registered public accounting firm attestation report for the Servicer and each Subservicer, ~~if the number of Certificateholders of record exceeds the number set forth~~ as described in Section ~~15(d)~~ 3.18 of the ~~Exchange Act or~~ Agreement, and (B) if any registered public accounting firm attestation report described in the ~~regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements~~ Section 3.18 of the ~~Exchange Act~~Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification in the ~~Trustee~~form attached hereto as Exhibit X, ~~solely at~~ xxxxxxxx xy the ~~Depositor’s prior written direction and expense, shall recommence preparing and filing reports~~ senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~and~~ ("Additional Form 10-~~D as required~~ K Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to ~~this Section 3.22~~ the following paragraph and the ~~parties hereto shall again~~ Trustee will have ~~the obligations~~ no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in ~~this Section.~~ the next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) ~~For so long as reports are~~ certain parties to the transaction shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to the ~~Trust~~Depositor and the Servicer, ~~each of~~ to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in EDGAR-compatible form, or in such other form as otherwise agreed upxx xx the Trustee and the Depositor, the ~~Trustee, the Servicer~~ form and ~~the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case~~ substance of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Additional Form 10-K or Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 dayK Disclosure on Form 10-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required K pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the otherparagraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He4)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Sponsor or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X 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 an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the trust), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in Section 3.17 of the Agreement, (ii)(A) the annual reports on assessment of compliance with servicing criteria for each Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such compliance (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the ~~case~~ Section 3.18 of the ~~Trustee’s Assessment~~ Agreement identifies any material instance of ~~Compliance~~noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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) ~~and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification,~~ a Xxxxxxxx-Xxxxx Certification in the form attached hereto as Exhibit ~~O-1~~ T, executed by the senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the ~~Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit~~ direction of the Depositor pursuant to the following paragraph and the ~~Servicer and their officers, directors and affiliates regarding certain aspects of the~~ Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included~~ Disclosure, except as set forth in the ~~Form 10-K are not timely received by~~ next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the ~~Trustee prior~~ Trust is subject to the ~~Form 10-K Filing Deadline~~Exchange Act reporting requirements, ~~the Trustee shall~~commencing in 2007, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) ~~no notice is provided~~ certain parties to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment transaction shall be ~~made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement~~ required to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver provide to the Depositor and the ~~Servicer a copy of~~ Servicer, to the extent known, any ~~such executed report~~Additional Form 10-K Disclosure, ~~statement or information. (h) The obligations set forth in paragraphs (a)~~ if applicable, and (bii) ~~of this Section shall only apply with respect to periods for which reports are required to be filed with respect~~ the Depositor shall, to the ~~Trust under~~ extent it deems necessary, forward to the ~~Exchange Act. Prior to January 30~~ Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-K Disclosure on Form 10-K ~~and 10-D as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-Ar1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S~~(a "reportable event"), the Depositor, the ~~Seller~~ Sponsor or the Servicer (i) shall have timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format (or other ~~such other~~ word processing format ~~reasonably~~ that is acceptable to the Trustee) agreed upon by the Trustee and Depositor, Sponsor or Servicer. To The Depositor or the Trustee, to the extent ~~that a Responsible Officer of~~ the ~~Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed with~~ shall be determined and prepared by and at the ~~SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out~~ direction of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute Depositor pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, following paragraph and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction determine or ~~withdrawal of the rating of~~ prepare any ~~outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee~~ additional information on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement D ("Additional Form 10-D Disclosure") as set forth in ~~Section 4.06(a~~the next paragraph. As set forth in Schedule Y hereto, within five (5) ~~hereof.~~ calendar days after the related Distribution Date (fi) ~~The Depositor~~the parties hereto, ~~the Servicer and the Trustee agree~~ as applicable, will be required to ~~use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver~~ provide to the Depositor and the ~~Servicer~~ Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in a Microsoft Word format (or other word processing format that is acceptable to the Trustee) (with a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the ~~Trust under~~ Servicer), or in such other form as otherwise agreed upon by the ~~Exchange Act. Prior to January 30~~ Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-H1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed~~ shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (with a copy to the ~~SEC~~Servicer), or in such other ~~than~~ form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any ~~losses, damages, penalties, fines, forfeitures,~~ reasonable ~~and necessary legal fees and related costs, judgments and other costs,~~ fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then incurred by the Trustee ~~shall contribute~~ in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or this paragraph. After preparing the Form 10-~~K within~~ D at the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none direction of the Depositor, the ~~Servicer and~~ Trustee will forward electronically a draft copy of the ~~Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than 2 business days after receipt of a final copy ~~of any such executed report~~after the related Distribution Date, ~~statement~~ unless the Servicer receives a notice from the Trustee as described below or ~~information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to ~~periods for which reports are required~~ such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to ~~be filed with respect~~ follow by overnight mail) to the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the~~ Trustee ~~is able to do so under applicable law,~~ and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form ~~15 Suspension Notification~~ 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the ~~Trust. At~~ Trustee's inability or failure to obtain or receive any ~~time after~~ information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the ~~filing of a Form 15 Suspension Notification~~registered public accounting firm attestation report for the Servicer and each Subservicer, ~~if the number of Certificateholders of record exceeds the number set forth~~ as described in Section ~~15(d)~~ 3.18 of the ~~Exchange Act or~~ Agreement, and (B) if any registered public accounting firm attestation report described in the ~~regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements~~ Section 3.18 of the ~~Exchange Act~~Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the ~~Trustee~~form attached hereto as Exhibit T, ~~solely at~~ executed by the ~~Depositor’s prior written direction and expense, shall recommence preparing and filing reports~~ senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~and~~ ("Additional Form 10-~~D as required~~ K Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to ~~this Section 3.22~~ the following paragraph and the ~~parties hereto shall again~~ Trustee will have ~~the obligations~~ no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in ~~this Section.~~ the next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) ~~For so long as reports are~~ certain parties to the transaction shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to the ~~Trust~~Depositor and the Servicer, ~~each of~~ to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the ~~Trustee, the Servicer~~ form and ~~the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case~~ substance of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Additional Form 10-K or Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 dayK Disclosure on Form 10-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required K pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the otherparagraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-Fm1)

Periodic Filings. (a) The Trustee ~~will prepare~~ and ~~file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or~~ the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed reasonably cooperate with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify the Depositor ~~of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K~~ in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. ~~Notwithstanding~~ The Trustee shall prepare for execution by the ~~foregoing~~Depositor any Forms 10-D and 10-K and certain Form 8-K's (not to include any Form 8-K related to the filing of this Agreement and any amendments thereto), ~~none~~ required by the Exchange Act and the rules and regulations of the ~~Depositor~~Commission thereunder, in order to permit the ~~Servicer~~ timely filing thereof, and the Trustee shall ~~be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations~~ file (via the Commission's Electronic Data Gathering and ~~immunities under this Agreement~~Retrieval System, or EDGAR) such Forms executed by the Depositor. (eb) ~~In filing any Monthly Form 8-K or Form 10-K~~Within 15 xxxx after each Distribution Date (subject to permitted extensions under the Exchange Act), the Trustee shall ~~not undertake~~ prepare and file on behalf of the Trust any ~~analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed~~ Form 10-D required by the ~~Trustee~~ Exchange Act, in form and ~~reflected in~~ substance as required by the ~~statement set forth in Section 4.06(a) hereof. (f)~~ Exchange Act. The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall ~~promptly deliver~~ 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 reported to the Depositor and the ~~Servicer a copy of~~ Trustee by the parties set forth on Exhibit Q and directed and approved by the Depositor pursuant to the following paragraph. The Trustee will have no duty or liability for any ~~such executed report~~failure hereunder to determine or prepare any Additional Form 10-D Disclosure, ~~statement or information. (h) The obligations~~ except as set forth in ~~paragraphs (a) and (b) of this Section~~ the next paragraph. As set forth on Exhibit Q hereto, within 5 calendar days after the related Distribution Date, the parties, to the extent described on Exhibit Q, shall ~~only apply with respect to periods for which reports are~~ be required to ~~be filed~~ provide to the Trustee and the Depositor, to the extent known by such applicable parties, any Additional Form 10-D Disclosure, the form and substance of the Additional Form 10-D Disclosure described on Exhibit Q applicable to such party (and shall include with such Additional Form 10-D Disclosure an Additional Disclosure Notification in the form attached hereto as Exhibit U), and 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 Trustee has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit Q (other than with respect to the ~~Trust~~ Trustee) of their duties under ~~the Exchange Act. Prior to January 30 of the first year in which the Trustee is able to do so under applicable law~~this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information; provided, however, the Trustee shall ~~file~~ cooperate with the Depositor in a ~~Form 15 Suspension Notification~~ reasonable manner in order for the Depositor to comply with ~~respect to~~ its reporting obligations under the ~~Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number~~ Exchange Act as set forth in Section ~~15(d) of~~ 8.12(a). The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto~~ paragraph. The Trustee shall ~~again have the obligations set forth~~ compile all such information provided to it in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a ~~Form 8-K, Form 10-K or~~ Form 10-D ~~with respect~~ prepared by it. After preparing the Form 10-D, the Trustee shall forward electronically a copy of the Form 10-D to the ~~Trust. (j) For so long as reports are required to be filed with the Securities~~ Depositor for approval and ~~Exchange Commission under the Exchange Act with respect~~ execution. No later than 2 Business Days prior to the ~~Trust~~15th calendar day after the related Distribution Date, an officer of the Depositor shall ~~notify~~ sign the ~~Servicer~~ 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. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in ~~writing within 10 days following any Distribution Date as~~ Section 8.12(f)(ii). Form 10-D requires the Depositor to ~~whether the registrant~~ indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the ~~registrant~~ Depositor was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days~~. Notwithstanding~~ ." The Depositor hereby instructs the ~~foregoing~~Trustee, with respect to each Form 10-D, to check "yes" for each item unless ~~otherwise indicated in writing by~~ the Trustee has received timely prior written notice from the Depositor ~~within such 10 day-period of time,~~ that the ~~Depositor shall~~ answer should be ~~deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above~~"no" for an item. The Depositor shall ~~indemnify~~ notify the Trustee in writing, as soon as reasonably practicable but no later than 5 Business Days prior to the 15th calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D, if the answer to the questions should be "no." The Trustee shall be entitled to rely on such instructions in preparing and/or filing any such Form 10-D. The Depositor acknowledges that the performance by the Trustee of its duties under this Section 8.12(b) related to the timely preparation and ~~hold harmless~~ filing of Form 10-D is contingent upon the Custodian, the Servicer (including Subcontractors and Servicing Function Participant) and the Depositor observing all applicable deadlines in the performance of their duties under this Section 8.12(b). The Trustee shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 10-D, where such failure results from the Trustee's inability or failure to receive, on a timely basis, any information from any party hereto (other than the Trustee or any Subcontractor utilized by the Trustee) needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. (c) On or before 90 days after the end of each fiscal year of the Trust or such earlier date as may be required by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2007, the Trustee shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Trustee within the applicable time frames set forth in this Agreement, (i) an annual compliance statement for the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable each Subservicer engaged by the Servicer, as described under Section 3.22, (ii)(A) the annual reports on assessment of compliance with servicing criteria for the Trustee, the Servicer, the Custodian, each Subservicer engaged by the Servicer and each Servicing Function Participant utilized by the Servicer, the Custodian or the Trustee, as described under Section 3.23, and (B) if any such report on assessment of compliance with servicing criteria described under Section 3.23 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or such report on assessment of compliance with servicing criteria described under Section 3.23 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, (iii) (A) the registered public accounting firm attestation report for the Trustee, the Servicer, the Custodian, each Subservicer engaged by the Servicer and each Servicing Function Participant utilized by the Servicer, the Custodian or the Trustee, as described under Section 3.23, and (B) if any registered public accounting firm attestation report described under Section 3.23 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 certification in the form attached hereto as Exhibit L, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the "Sarbanes Certification"), which shall be signed by the senior officer of the Depositor in charge of securitization. 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 reported to the Depositor and the Trustee by the parties set forth on Exhibit R and directed and approved by the Depositor pursuant to the following paragraph. The Trustee 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 R hereto, no later than March 1 of each year (or, in the case of the Servicer, March 5th of each year) that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, the parties, to the extent described on Exhibit R, shall be required to provide to the Trustee and the Depositor, to the extent known by such applicable parties, any Additional Form 10-K Disclosure, the form and substance of the Additional Form 10-K Disclosure described on Exhibit R applicable to such party (and shall include with such Additional Form 10-K Disclosure an Additional Disclosure Notification in the form attached hereto as Exhibit U), and the Depositor will approve, as to form and substance, or disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses, claims, damages~~ Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under this Agreement to monitor or ~~liabilities of~~ enforce the ~~Servicer, or~~ performance by the parties listed on Exhibit R (other than with respect to the Trustee) of their duties under this paragraph or proactively solicit from such parties any Additional Form 10-K Disclosure information; provided, ~~as the case may be~~however, ~~its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or~~ the Trustee ~~and its respective officers, directors and Affiliates on the one hand and~~ shall cooperate with the Depositor in a reasonable manner in order for the Depositor to comply with its reporting obligations under the Exchange Act as set forth in Section 8.12(a). The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Additional Form 10-K Disclosure on ~~the other~~Form 10-K pursuant to this paragraph. The Trustee shall compile all such information provided to it in a Form 10-K prepared by it.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC Trust 2006-Wm4)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the ~~Certificateholders for~~ Certificateholderx xxx such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in EDGAR-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other xxxx as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx 00~~March 30, ~~0000~~ 2008 (~~xxx~~and, if applicable, prior to ~~March 31~~ the ninetieth (90th) calexxxx xxx xxxxx xxx end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 10 -K with respect to the Issuing Entity. Such Form 10-K ~~with respect to~~ xxxxx include the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (i) (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification in the form attached hereto as Exhibit T, xxxxxxxx xx xhe senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in EDGAR-compatible form, or in such other form as otherwise agreed upon xx xxe Trustee and the Depositor, the form and substance of the Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee 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 Trustee shall forward electronically a draft copy of the Form 10-K to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall confirm that it has reviewed the Form 10-K, that it has been properly prepared and that the Servicer may rely on the accuracy thereof (other than with respect to any portion of the Form 10-K or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K by March 30th. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the ~~case~~ Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee~~’s Assessment of Compliance~~'s inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include a certification (the "Sarbanes-Oxley Certification") ~~and such other information as is required by Regulation AB.~~ which shall be in the form attached herxxx xx Xxxxxxx T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”)~~ Oxley Certification required pursuant to Rule 13a -14 under ~~the Securities~~ txx Xxxxxxxxxx Exchange Act of 1934, as amended, and to deliver the original executed Sarbanes-Oxley Certification to the Trustee ~~shall file the same with the Securities and Exchange Commission prior~~ by March 12 of each year ix xxxxx xxx Xxsuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Sarbanes-~~K Certification (the “Trustee’s~~ Oxley Certification”). To the extent any information or ~~exhibits required to~~ exhibitx xxxxxxxx xx be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Enxxxx, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff1)

Periodic Filings. (a) The Trustee ~~will prepare~~ and ~~file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or~~ the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed reasonably cooperate with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify the Depositor ~~of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K~~ in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. ~~Notwithstanding~~ The Trustee shall prepare for execution by the ~~foregoing~~Depositor any Forms 10-D and 10-K and certain Form 8-K's (not to include any Form 8-K related to the filing of this Agreement and any amendments thereto), ~~none~~ required by the Exchange Act and the rules and regulations of the ~~Depositor~~Commission thereunder, in order to permit the ~~Servicer~~ timely filing thereof, and the Trustee shall ~~be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations~~ file (via the Commission's Electronic Data Gathering and ~~immunities under this Agreement~~Retrieval System, or EDGAR) such Forms executed by the Depositor. (eb) ~~In filing any Monthly Form 8-K or Form 10-K~~Within 15 xxxx after each Distribution Date (subject to permitted extensions under the Exchange Act), the Trustee shall ~~not undertake~~ prepare and file on behalf of the Trust any ~~analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed~~ Form 10-D required by the ~~Trustee~~ Exchange Act, in form and ~~reflected in~~ substance as required by the ~~statement set forth in Section 4.06(a) hereof. (f)~~ Exchange Act. The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall ~~promptly deliver~~ 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 reported to the Depositor and the ~~Servicer a copy of~~ Trustee by the parties set forth on Exhibit Q and directed and approved by the Depositor pursuant to the following paragraph. The Trustee will have no duty or liability for any ~~such executed report~~failure hereunder to determine or prepare any Additional Form 10-D Disclosure, ~~statement or information. (h) The obligations~~ except as set forth in ~~paragraphs (a) and (b) of this Section~~ the next paragraph. As set forth on Exhibit Q hereto, within 5 calendar days after the related Distribution Date, the parties, to the extent described on Exhibit Q, shall ~~only apply with respect to periods for which reports are~~ be required to ~~be filed~~ provide to the Trustee and the Depositor, to the extent known by such applicable parties, any Additional Form 10-D Disclosure, the form and substance of the Additional Form 10-D Disclosure described on Exhibit Q applicable to such party (and shall include with such Additional Form 10-D Disclosure an Additional Disclosure Notification in the form attached hereto as Exhibit V), and 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 Trustee has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit Q (other than with respect to the ~~Trust~~ Trustee) of their duties under ~~the Exchange Act. Prior to January 30 of the first year in which the Trustee is able to do so under applicable law~~this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information; provided, however, the Trustee shall ~~file~~ cooperate with the Depositor in a ~~Form 15 Suspension Notification~~ reasonable manner in order for the Depositor to comply with ~~respect to~~ its reporting obligations under the ~~Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number~~ Exchange Act as set forth in Section ~~15(d) of~~ 8.12(a). The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto~~ paragraph. The Trustee shall ~~again have the obligations set forth~~ compile all such information provided to it in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a ~~Form 8-K, Form 10-K or~~ Form 10-D ~~with respect~~ prepared by it. After preparing the Form 10-D, the Trustee shall forward electronically a copy of the Form 10-D to the ~~Trust. (j) For so long as reports are required to be filed with the Securities~~ Depositor for approval and ~~Exchange Commission under the Exchange Act with respect~~ execution. No later than 2 Business Days prior to the ~~Trust~~15th calendar day after the related Distribution Date, an officer of the Depositor shall ~~notify~~ sign the ~~Servicer~~ 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. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in ~~writing within 10 days following any Distribution Date as~~ Section 8.12(f)(ii). Form 10-D requires the Depositor to ~~whether the registrant~~ indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the ~~registrant~~ Depositor was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days~~. Notwithstanding~~ ." The Depositor hereby instructs the ~~foregoing~~Trustee, with respect to each Form 10-D, to check "yes" for each item unless ~~otherwise indicated in writing by~~ the Trustee has received timely prior written notice from the Depositor ~~within such 10 day-period of time,~~ that the ~~Depositor shall~~ answer should be ~~deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above~~"no" for an item. The Depositor shall ~~indemnify~~ notify the Trustee in writing, as soon as reasonably practicable but no later than 5 Business Days prior to the 15th calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D, if the answer to the questions should be "no." The Trustee shall be entitled to rely on such instructions in preparing and/or filing any such Form 10-D. The Depositor acknowledges that the performance by the Trustee of its duties under this Section 8.12(b) related to the timely preparation and ~~hold harmless~~ filing of Form 10-D is contingent upon the Servicer (including Subcontractors and Servicing Function Participant) and the Depositor observing all applicable deadlines in the performance of their duties under this Section 8.12(b). The Trustee shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 10-D, where such failure results from the Trustee's inability or failure to receive, on a timely basis, any information from any party hereto (other than the Trustee or any Subcontractor utilized by the Trustee) needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. (c) On or before 90 days after the end of each fiscal year of the Trust or such earlier date as may be required by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the Trustee shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Trustee within the applicable time frames set forth in this Agreement, (i) an annual compliance statement for the Servicer and each Subservicer engaged by the Servicer, as described under Section 3.22, (ii)(A) the annual reports on assessment of compliance with servicing criteria for the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer~~’s or~~ , each Subservicer engaged by the ~~Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless~~ Servicer and each Servicing Function Participant utilized by the Servicer or the ~~Trustee~~ Trustee, as described under Section 3.23, and ~~its respective officers~~(B) if any such report on assessment of compliance with servicing criteria described under Section 3.23 identifies any material instance of noncompliance, ~~directors~~ disclosure identifying such instance of noncompliance, or such report on assessment of compliance with servicing criteria described under Section 3.23 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and ~~Affiliates~~an explanation why such report is not included, ~~then~~ (iii) (A) the ~~Depositor shall contribute to~~ registered public accounting firm attestation report for the ~~amount paid or payable by~~ Trustee, the Servicer, each Subservicer engaged by the Servicer and each Servicing Function Participant utilized by the Servicer or the Trustee, as described under Section 3.23, and (B) if any registered public accounting firm attestation report described under Section 3.23 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 certification in the form attached hereto as Exhibit L, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the "Sarbanes Certification"), which shall be signed by the senior officer of the Depositor in charge of securitization. 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 reported to the Depositor and the Trustee by the parties set forth on Exhibit R and directed and approved by the Depositor pursuant to the following paragraph. The Trustee 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 R hereto, no later than March 1 of each year (or, in the case of the Servicer, March 15th of each year) that the Trust is subject to the Exchange Act reporting requirements, commencing in 2008, the parties, to the extent described on Exhibit R, shall be required to provide to the Trustee and the Depositor, to the extent known by such applicable parties, any Additional Form 10-K Disclosure, the form and substance of the Additional Form 10-K Disclosure described on Exhibit R applicable to such party (and shall include with such Additional Form 10-K Disclosure an Additional Disclosure Notification in the form attached hereto as Exhibit V), and the Depositor will approve, as to form and substance, or disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses, claims, damages~~ Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under this Agreement to monitor or ~~liabilities of~~ enforce the ~~Servicer, or~~ performance by the parties listed on Exhibit R (other than with respect to the Trustee) of their duties under this paragraph or proactively solicit from such parties any Additional Form 10-K Disclosure information; provided, ~~as the case may be~~however, ~~its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or~~ the Trustee ~~and its respective officers, directors and Affiliates on the one hand and~~ shall cooperate with the Depositor in a reasonable manner in order for the Depositor to comply with its reporting obligations under the Exchange Act as set forth in Section 8.12(a). The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Additional Form 10-K Disclosure on ~~the other~~Form 10-K pursuant to this paragraph. The Trustee shall compile all such information provided to it in a Form 10-K prepared by it.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC Trust 2007-Br5)

Periodic Filings. (a) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction~~ (each such event, a "Reportable Event"), and ~~expense of the Depositor, provided, that, as set forth on Exhibit S,~~ if requested by the Depositor, the ~~Seller or~~ Securities Administrator shall prepare and file on behalf of the ~~Servicer shall have timely notified the Trustee of an item reportable on~~ Issuing Entity a ~~Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such~~ Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent~~ that ~~a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify~~ the Depositor ~~of such event. The Trustee~~ shall ~~not be responsible for determining what information is required to be filed on a~~ file the initial Form 8-K in connection with the ~~transactions contemplated~~ 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 (other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported by the parties set forth on Exhibit W to the Depositor and the Securities Administrator and directed and approved by the Depositor, 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. 100 (b) For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (A) each party listed on Exhibit W hereto shall be required to provide to the Securities Administrator and the Depositor, to the extent known by a Responsible Officer, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information if applicable, together with the form set forth on Exhibit U (the "Additional Disclosure Notification") by the close of business New York City time on the 2nd Business Day following the occurrence of such Reportable Event and (B) the Depositor, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities Administrator has no duty under this Agreement to monitor or ~~what events~~ enforce the performance by the parties listed on Exhibit W of their duties under this paragraph or proactively solicit or procure from such parties any 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. (c) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a copy of the Form 8-K to the Depositor for review. Promptly, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall ~~cause~~ 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 receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 8-K, 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 representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K ~~to be required to~~ cannot be filed ~~and shall not be liable for any late filing of~~ 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 9.21(n). (d) Promptly (but no later than one 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 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 its duties under this Section 9.21 related to the timely preparation, execution and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event~~ performance of their duties under this Section 9.21. The Depositor acknowledges that ~~it does not receive all information, data, signatures~~ the performance by the Master Servicer and ~~exhibits required to be provided or filed on or prior~~ the Securities Administrator of its duties under this Section 9.21 related to the ~~second Business Day prior~~ timely preparation, execution and filing of Form 8-K is also contingent upon the Servicer, the Custodian and any Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of any necessary Form 8-K Disclosure Information pursuant to the Custodial Agreement or any other applicable ~~filing deadline~~agreement. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage or claim arising out of or 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 timely basis, any information from any other party hereto or the Servicer, Custodian or Servicing Function Participant needed to prepare, arrange for execution or file such Form 8-K. (e) Within 15 fifteen days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the ~~Trustee~~ Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ the Electronic Data 101 Gathering and Retrieval System (XXXXX), a Form 10-K D with ~~respect~~ (1) a copy of the Monthly Statement for such Distribution Date as an exhibit thereto. Any disclosure in addition to the ~~Trust Fund. To facilitate the Trustee’s preparation of the~~ Monthly Statement that is required to be included on Form 10-~~K, the Trustee shall provide to the Depositor its proposed~~ D ("Additional Form 10-~~K template no later than forty-five (45~~D Disclosure") ~~days prior to~~ shall be reported by the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required~~ X to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the ~~Servicer~~ Securities Administrator and ~~their officers, directors~~ directed and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received approved by the ~~Trustee prior~~ Depositor pursuant to the ~~Form 10-K Filing Deadline~~following paragraph, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and ~~interpretations of~~ the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect Administrator will have no duty or liability for any failure hereunder to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to determine or prepare ~~and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each~~ any Additional Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party Disclosure except as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in ~~Section 4.06(a) hereof~~the next paragraph. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations As set forth in ~~paragraphs (a) and (b) of this Section shall only apply with respect to periods~~ Exhibit X hereto, for ~~which reports are required to be filed with respect to~~ so long as the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee~~ Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the ~~Trustee~~related Distribution Date (i) each party listed on Exhibit X hereto shall be required to provide to the Depositor and the Securities Administrator, ~~solely at~~ to the ~~Depositor’s prior written direction~~ extent known by a Responsible Officer, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and ~~expense~~such party, ~~shall recommence preparing~~ the form and ~~filing reports~~ substance of any Additional Form 10-D Disclosure if applicable together with the 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 Additional Form 10-D Disclosure on Form 10-~~K and 10-D as required pursuant~~ D. The Securities Administrator has no duty under this Agreement to ~~this Section 3.22 and~~ monitor or enforce the performance by the parties ~~hereto shall again have the obligations set forth in~~ listed on Exhibit X of their duties under this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of paragraph or proactively solicit or procure from such parties any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses incurred by the Securities Administrator in connection with ~~respect~~ including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~the Trust~~this paragraph. (jg) ~~For so long as reports are required to be filed with~~ After preparing the Form 10-D, the Securities ~~and Exchange Commission under~~ Administrator shall, upon request, forward electronically a copy of the ~~Exchange Act with respect~~ Form 10-D to the ~~Trust~~Depositor for review (provided that such Form 10-D includes any Additional Form 10-D Disclosure). Within two Business Days after receipt of such copy, but no later than the 12th calendar day after the Distribution Date, the Depositor shall notify the ~~Servicer~~ Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 10-D, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Trustee~~ Securities Administrator may proceed with the execution and filing of the Form 10-D. A duly authorized representative of the Master Servicer shall sign each 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 ~~writing within 10 days following any Distribution Date as to whether~~ Section 9.21(n). Promptly (but not later than one 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-D prepared and filed by the Securities Administrator. Form 10-D requires the registrant to indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days~~. Notwithstanding~~ ." The Depositor hereby represents to the ~~foregoing, unless otherwise indicated in writing by~~ Securities Administrator that the Depositor ~~within~~ has filed all such ~~10 day-period of time,~~ required reports during the ~~Depositor shall be deemed~~ preceding 12 months and that it has been subject to ~~have notified~~ such filing requirement for the ~~Servicer and the Trustee in the affirmative as to clauses (1) and (2) above~~past 90 days. The Depositor shall ~~indemnify and hold harmless each of~~ notify the ~~Servicer and~~ Securities Administrator in writing, no later than the ~~Trustee, and officers, directors and Affiliates of each, from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and~~ fifth calendar day after the related costs, judgments and other costs and expenses arising out of the Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute Distribution Date with respect to the ~~amount paid or payable by~~ filing of a report on Form 10-D, if the ~~Servicer, or~~ answer to the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.questions should be "

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series MLCC 2007-3)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X 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 an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the trust), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in ~~the case~~ Section 3.17 of the ~~Trustee’s Assessment~~ Agreement, (ii)(A) the annual reports on assessment of ~~Compliance)~~ compliance with servicing criteria for each Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB~~. The~~ ), as described in Section 3.18 of the Agreement, and (B) if any Reporting Servicer's report on assessment of compliance with servicing criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on assessment of compliance with servicing criteria described in Section 3.18 of the Agreement 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, (iii)(A) the registered public accounting firm attestation report for the Servicer ~~will cause its senior officer~~ and each Subservicer, as described in ~~charge~~ Section 3.18 of ~~securitization~~ the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to ~~execute the certification~~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 in the form attached hereto as Exhibit ~~O-1~~ T, executed by the senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the ~~Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit~~ direction of the Depositor pursuant to the following paragraph and the ~~Servicer and their officers, directors and affiliates regarding certain aspects of the~~ Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included~~ Disclosure, except as set forth in the ~~Form 10-K are not timely received by~~ next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the ~~Trustee prior~~ Trust is subject to the ~~Form 10-K Filing Deadline~~Exchange Act reporting requirements, ~~the Trustee shall~~commencing in 2007, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) ~~no notice is provided~~ certain parties to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment transaction shall be ~~made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement~~ required to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver provide to the Depositor and the ~~Servicer a copy of~~ Servicer, to the extent known, any ~~such executed report~~Additional Form 10-K Disclosure, ~~statement or information. (h) The obligations set forth in paragraphs (a)~~ if applicable, and (bii) ~~of this Section shall only apply with respect to periods for which reports are required to be filed with respect~~ the Depositor shall, to the ~~Trust under~~ extent it deems necessary, forward to the ~~Exchange Act. Prior to January 30~~ Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-K Disclosure on Form 10-K ~~and 10-D as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He2)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule III hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor~~(a "reportable event"), ~~provided, that, as set forth on Exhibit S,~~ (i) the Depositor, the ~~Seller~~ Indenture Trustee, the Sponsor, the Servicer (and in the case of Countrywide, the Depositor shall cause such Servicer) or the Master Servicer shall have timely notified the ~~Trustee~~ Securities Administrator of an item reportable on a Form 8-K (unless such item is specific to the Securities Administrator, in which case the Securities Administrator will be deemed to have notice), (ii) the Depositor, the Servicer, the Master Servicer and the Indenture Trustee shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Securities Administrator, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Indenture Trustee, the Securities Administrator and Depositor, Sponsor or ~~other such other format reasonably acceptable~~ Master Servicer, as applicable, and (iii) the Depositor, Servicers or the Securities Administrator, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Master Servicer thereof by telephone. The ~~Trustee~~ Securities Administrator shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Securities Administrator, in which case the Securities Administrator will be responsible for consulting with the Depositor or Master Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Securities Administrator, in which case the Securities Administrator will be responsible for consulting with the Depositor or Master Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Securities Administrator shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and Master Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Securities Administrator, a duly authorized representative 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 and the Securities Administrator shall file such Form 8-K; provided that the Depositor has notified the Securities Administrator and Master Servicer that it approves of the form and substance of such 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 this Agreement. After filing with the Commission, the Securities Administrator will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Securities Administrator will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each ~~Distribution~~ Payment Date, the ~~Trustee~~ Securities Administrator shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the ~~Certificateholders~~ Securityholders for such ~~Distribution~~ Payment Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the ~~Trustee as identified on Exhibit T; provided that such information is provided~~ Securities Administrator by a Servicer, the Master Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Trustee~~ following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule IV hereto, within five (5) calendar days after the related Payment Date (i) the parties hereto, as applicable, will be required (and in the case of Countrywide, the Depositor will require Countrywide) to provide to the Depositor and the Master Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, shall forward to the Securities Administrator in XXXXX-compatible form (with a copy to the Master Servicer), or in such other form as otherwise agreed upon by the Securities Administrator and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth calendar day after the Payment Date. The Depositor will be responsible for any reasonable fees and expenses 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 at the direction of the Depositor, the Securities Administrator will forward electronically a draft copy of the Form 10-D to the Depositor (with a copy to the Master Servicer) for review by the ninth calendar day after the Payment Date. No later than ~~the first~~ two (2) Business ~~Day immediately following~~ Days after receipt of a final copy after the related ~~Distribution~~ Payment Date, unless the Master Servicer receives a notice from the Securities Administrator as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Master Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Securities Administrator and the Securities Administrator shall file such Form 10-D within two (2) Business Days. Unless the Master Servicer shall have received notice from the Securities Administrator to the contrary, the Securities Administrator will be deemed to have represented to the Master Servicer that the Monthly Statement has been properly prepared by the Securities Administrator and the Master Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Securities Administrator per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in this Agreement. After filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-D. The Securities Administrator and Master Servicer will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the ~~Trustee~~ Securities Administrator shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Trustee~~ Securities Administrator within the applicable time frames set forth in this Agreement, the Countrywide Servicing Agreement and each Custodial Agreement, (i) an annual compliance statement for each Servicer, Master Servicer, Securities Administrator, and each Subservicer, and Subcontractor, if and as applicable, pursuant to Section 3.17 of this Agreement or the ~~Depositor~~Countrywide Servicing Agreement, in (ii)(A) the ~~case of the Trustee’s~~ annual reports on Assessment of ~~Compliance)~~ Compliance with Servicing Criteria for the Master Servicer, Securities Administrator, each Servicer, Subservicer, Subcontractor and each Custodian (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB~~. The Servicer will cause its senior officer~~ ), as described in ~~charge~~ Section 3.18 of ~~securitization~~ this Agreement or the Countrywide Servicing Agreement or in the applicable Custodial Agreement, and (B) if any Servicer's report on Assessment of Compliance with Servicing Criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on Assessment of Compliance with Servicing Criteria described in Section 3.18 of this Agreement or the Countrywide Servicing Agreement is not included as an exhibit to ~~execute~~ such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the ~~certification~~registered public accounting firm attestation report for the Master Servicer, Securities Administrator, each Servicer, each Subservicer, each Subcontractor and each Custodian, as described in Section 3.18 of this Agreement or the Countrywide Servicing Agreement or in the applicable Custodial Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Certificate in the form attached hereto as Exhibit ~~O-1~~ G, executed by the senior officer in charge of securitizations of the Master Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the ~~Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit~~ direction of the Depositor pursuant to the following paragraph and neither the Master Servicer ~~and their officers, directors and affiliates regarding certain aspects of~~ nor the Securities Administrator will have a duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included~~ Disclosure, except as set forth in the ~~Form 10-K are not timely received by~~ next paragraph. As set forth in Schedule V hereto, no later than March 12 of each year that the ~~Trustee prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations transaction shall be required (and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to ~~the Trust Fund~~Countrywide, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall ~~execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided~~ cause such Servicer) to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing provide to the Depositor, the ~~Servicer~~ Securities Administrator and the ~~Trustee from~~ Master Servicer, to the ~~Rating Agencies that~~ extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Securities Administrator in XXXXX-compatible form, or in such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed other form as otherwise agreed upon by the ~~Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of~~ Securities Administrator and the Depositor, the ~~Servicer~~ form and substance of the ~~Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Additional Form 10-~~K, the Trustee shall not undertake~~ K Disclosure by March 15. The Depositor will be responsible for any ~~analysis of,~~ reasonable fees and ~~shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed~~ expenses incurred by the ~~Trustee and reflected~~ Securities Administrator in ~~the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying~~ connection with ~~the requirements of this Section 3.22. (g) Upon~~ including any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-K Disclosure on Form 10-K ~~and 10-D as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Sl2)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such Form 8-K. If a Form 8-K -80- cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed~~ shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (with a copy to the ~~SEC~~Servicer), or in such other ~~than~~ form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the Distribution Date. The Depositor will be responsible for any ~~losses, damages, penalties, fines, forfeitures,~~ reasonable ~~and necessary legal fees and related costs, judgments and other costs,~~ fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then incurred by the Trustee ~~shall contribute~~ in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or this paragraph. After preparing the Form 10-~~K within~~ D at the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none direction of the Depositor, the ~~Servicer and~~ Trustee will forward electronically a draft copy of the ~~Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than 2 business days after receipt of a final copy ~~of any such executed report~~after the related Distribution Date, ~~statement~~ unless the Servicer receives a notice from the Trustee as described below or ~~information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to ~~periods for which reports are required~~ such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to ~~be filed with respect~~ follow by overnight mail) to the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the~~ Trustee ~~is able to do so under applicable law,~~ and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee in accordance with Section 4.05 will be deemed to have represented to the Servicer that the Monthly Statement has been properly prepared by the Trustee in accordance with Section 4.05 and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form ~~15 Suspension Notification~~ 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the ~~Trust. At~~ Trustee's inability or failure to obtain or receive any ~~time after~~ information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the ~~filing of a Form 15 Suspension Notification~~registered public accounting firm attestation report for the Servicer and each Subservicer, ~~if the number of Certificateholders of record exceeds the number set forth~~ as described in Section ~~15(d)~~ 3.18 of the ~~Exchange Act or~~ Agreement, and (B) if any registered public accounting firm attestation report described in the ~~regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements~~ Section 3.18 of the ~~Exchange Act~~Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the ~~Trustee~~form attached hereto as Exhibit T, ~~solely at~~ executed by the ~~Depositor’s prior written direction and expense, shall recommence preparing and filing reports~~ senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~and~~ ("Additional Form 10-~~D as required~~ K Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to ~~this Section 3.22~~ the following paragraph and the ~~parties hereto shall again~~ Trustee will have ~~the obligations~~ no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in ~~this Section.~~ the next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) ~~For so long as reports are~~ certain parties to the transaction shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to the ~~Trust~~Depositor and the Servicer, ~~each of~~ to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the ~~Trustee, the Servicer~~ form and ~~the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case~~ substance of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Additional Form 10-K or Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 dayK Disclosure on Form 10-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required K pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the otherparagraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Sd1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a Word format (or other ~~such other format reasonably acceptable~~ Xxxxx-compatible form) agreed upon by the Trustee and Depositor, Sponsor or Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (or such other word processing format that is XXXXX-compatible) (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx 00~~March 30, ~~0000~~ 2008 (~~xxx~~and, if applicable, prior to ~~March 31~~ the ninetieth (90th) calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in ~~the case~~ Section 3.17 of the ~~Trustee’s~~ Agreement, (ii)(A) the annual reports on Assessment of ~~Compliance)~~ Compliance with Servicing Criteria for each Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB), as described in Section 3.18 of the Agreement, and (B) if any Reporting Servicer's report on Assessment of Compliance with Servicing Criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on assessment of compliance with servicing criteria described in Section 3.18 of the Agreement 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, (iii)(A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (or such other word processing format that is XXXXX-compatible), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee 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 Trustee shall forward electronically a draft copy of the Form 10-K to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall confirm that it has reviewed the Form 10-K, that it has been properly prepared and that the Servicer may rely on the accuracy thereof (other than with respect to any portion of the Form 10-K or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. ET on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K by March 30th. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be in the form attached hereto as Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements (each in Xxxxx-compatible format) within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required ~~hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word~~hereunder. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the The Trustee shall ~~without further notice conclude that there is no event or information~~ not have any responsibility to ~~be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of~~ file any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses items (other than ~~punitive damages~~those generated by it) that have not been received in a format suitable (or readily convertible into a format suitable) for electronic filing via the XXXXX system and shall not have any ~~of them may sustain in~~ responsibility to convert any ~~way related~~ such items to such format (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than ~~any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s~~ those items generated by it or ~~any other party’s breach of its obligations under this Agreement or any other related agreement~~that are readily convertible to such format). If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the Certificateholders ~~and without~~ but with the ~~requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal~~ consent of the ~~rating of any outstanding~~ Class ~~of Certificates with respect to~~ A Certificate Insurer (which ~~it is a Rating Agency. Such amendment~~ consent shall not be unreasonably withheld), and may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X 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 an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed~~ shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form (with a copy to the ~~SEC~~Servicer), or in such other ~~than~~ form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any ~~losses, damages, penalties, fines, forfeitures,~~ reasonable ~~and necessary legal fees and related costs, judgments and other costs,~~ fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable incurred by the ~~indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party~~ -105- Trustee in ~~such proportion as is appropriate~~ connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or this paragraph. After preparing the Form 10-~~K within~~ D at the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none direction of the Depositor, the ~~Servicer and~~ Trustee will forward electronically a draft copy of the ~~Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than 2 business days after receipt of a final copy ~~of any such executed report~~after the related Distribution Date, ~~statement~~ unless the Servicer receives a notice from the Trustee as described below or ~~information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to ~~periods for which reports are required~~ such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to ~~be filed with respect~~ follow by overnight mail) to the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the~~ Trustee ~~is able to do so under applicable law,~~ and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form ~~15 Suspension Notification~~ 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the ~~Trust. At~~ Trustee's inability or failure to obtain or receive any ~~time after~~ information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the ~~filing of a Form 15 Suspension Notification~~registered public accounting firm attestation report for the Servicer and each Subservicer, ~~if the number of Certificateholders of record exceeds the number set forth~~ as described in Section ~~15(d)~~ 3.18 of the ~~Exchange Act or~~ Agreement, and (B) if any registered public accounting firm attestation report described in the ~~regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements~~ Section 3.18 of the ~~Exchange Act~~Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the ~~Trustee~~form attached hereto as Exhibit T, ~~solely at~~ executed by the ~~Depositor’s prior written direction and expense, shall recommence preparing and filing reports~~ senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K ~~and~~ ("Additional Form 10-~~D as required~~ K Disclosure") shall be determined and prepared by and at the direction of the Depositor pursuant to ~~this Section 3.22~~ the following paragraph and the ~~parties hereto shall again~~ Trustee will have ~~the obligations~~ no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, except as set forth in ~~this Section.~~ the next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2007, (i) ~~For so long as reports are~~ certain parties to the transaction shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to the ~~Trust~~Depositor and the Servicer, ~~each of~~ to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the ~~Trustee, the Servicer~~ form and ~~the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case~~ substance of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Additional Form 10-K or Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 dayK Disclosure on Form 10-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required K pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the otherparagraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Mln1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule III hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor~~(a "reportable event"), ~~provided, that, as set forth on Exhibit S,~~ (i) the Depositor, the ~~Seller~~ Indenture Trustee, the Sponsor, the Servicers (and in the case of Countrywide, the Depositor shall cause such Servicer) or the Master Servicer shall have timely notified the ~~Trustee~~ Securities Administrator of an item reportable on a Form 8-K (unless such item is specific to the Securities Administrator, in which case the Securities Administrator will be deemed to have notice), (ii) the Depositor, each Servicer, the Master Servicer and the Indenture Trustee shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Securities Administrator, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format (or other ~~such other format reasonably acceptable~~ Xxxxx compatible form) agreed upon by the Indenture Trustee, the Securities Administrator and Depositor, Sponsor or Master Servicer, as applicable, and (iii) the Depositor, the Servicers or the Securities Administrator, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Master Servicer thereof by telephone or in writing. The ~~Trustee~~ Securities Administrator shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Servicing Agreement (unless such information is specific to the Securities Administrator, in which case the Securities Administrator will be responsible for consulting with the Depositor or Master Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Securities Administrator, in which case the Securities Administrator will be responsible for consulting with the Depositor, Master Servicer or related Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Securities Administrator shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and Master Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Securities Administrator, a duly authorized representative 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 and the Securities Administrator shall file such Form 8-K; provided that the Depositor has notified the Securities Administrator and Master Servicer that it approves of the form and substance of such 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 this Servicing Agreement. After filing with the Commission, the Securities Administrator will, pursuant to this Servicing Agreement, make available on its internet website a final executed copy of each Form 8-K. The Securities Administrator will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each ~~Distribution~~ Payment Date, the ~~Trustee~~ Securities Administrator shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the ~~Certificateholders~~ Securityholders for such ~~Distribution~~ Payment Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the ~~Trustee as identified on Exhibit T; provided that such information is provided~~ Securities Administrator by the Servicers, the Master Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the ~~Trustee~~ following paragraph and the Securities Administrator will have no duty or liability for any failure hereunder to determine or prepare or receive any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph. As set forth in Schedule IV hereto, within five (5) calendar days after the related Payment Date (i) the parties hereto, as applicable, will be required (and, in the case of Countrywide, the Depositor will require Countrywide) to provide to the Depositor and the Master Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, shall forward to the Securities Administrator in XXXXX-compatible form (with a copy to the Master Servicer), or in such other form as otherwise agreed upon by the Securities Administrator and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth calendar day after the Payment Date. The Depositor will be responsible for any reasonable fees and expenses 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 at the direction of the Depositor, the Securities Administrator will forward electronically a draft copy of the Form 10-D to the Depositor (with a copy to the Master Servicer) for review by the ninth calendar day after the Payment Date. No later than ~~the first~~ two (2) Business ~~Day immediately following~~ Days after receipt of a final copy after the related ~~Distribution~~ Payment Date, unless the Master Servicer receives a notice from the Securities Administrator as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Master Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Securities Administrator and the Securities Administrator shall file such Form 10-D within two (2) Business Days. Unless the Master Servicer shall have received notice from the Securities Administrator to the contrary, the Securities Administrator will be deemed to have represented to the Master Servicer that the Monthly Statement has been properly prepared by the Securities Administrator and the Master Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Securities Administrator per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Securities Administrator will follow the procedures set forth in this Servicing Agreement. After filing with the Commission, the Securities Administrator will make available on its internet website a final executed copy of each Form 10-D. The Securities Administrator and Master Servicer will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the ~~Trustee~~ Securities Administrator shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the ~~Trustee~~ Securities Administrator within the applicable time frames set forth in this Servicing Agreement, the Countrywide Servicing Agreement and the Custodial Agreement, (i) an annual compliance statement for each Servicer, the Master Servicer, Securities Administrator and each Subservicer and Subcontractor, if and as applicable, pursuant to Section 3.17 of this Servicing Agreement or the ~~Depositor~~Countrywide Servicing Agreement, in (ii)(A) the ~~case of the Trustee’s~~ annual reports on Assessment of ~~Compliance)~~ Compliance with Servicing Criteria for the Master Servicer, Securities Administrator, each Servicer, Subservicer, Subcontractor and the Custodian (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB~~. The Servicer will cause its senior officer~~ ), as described in ~~charge~~ Section 3.18 of ~~securitization~~ this Servicing Agreement or the Countrywide Servicing Agreement or in the Custodial Agreement, and (B) if any Servicer's report on Assessment of Compliance with Servicing Criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on Assessment of Compliance with Servicing Criteria described in Section 3.18 of this Servicing Agreement or the Countrywide Servicing Agreement is not included as an exhibit to ~~execute~~ such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, (iii)(A) the ~~certification~~registered public accounting firm attestation report for the Master Servicer, Securities Administrator, the Servicers, each Subservicer, Subcontractor, and the Custodian, as described in Section 3.18 of this Servicing Agreement or the Countrywide Servicing Agreement or in the Custodial Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Servicing Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Certificate in the form attached hereto as Exhibit ~~O-1~~ G, executed by the senior officer in charge of securitizations of the Master Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”~~("Additional Form 10-K Disclosure") ~~required~~ shall be determined and prepared by and at the direction of the Depositor pursuant to ~~Rule 13a -14 under~~ the following paragraph and neither the Master Servicer nor the Securities Administrator will have a 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 in Schedule V hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act ~~of 1934~~reporting requirements, ~~as amended~~commencing in 2008, (i) certain parties to the transaction shall be required (and with respect to Countrywide, the Depositor shall cause such Servicer) to provide to the Depositor, the Securities Administrator and the Master Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, and (ii) the ~~Trustee shall file~~ Depositor shall, to the ~~same with~~ extent it deems necessary, forward to the Securities Administrator in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Securities Administrator and ~~Exchange Commission prior~~ the Depositor, the form and substance of the Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses 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 Filing Deadline. In connection therewith~~K, the ~~Trustee~~ Securities Administrator shall ~~sign~~ forward electronically a ~~certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects~~ draft copy of the Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior~~ to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange CommissionDepositor for review. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page request of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and Master Servicer, the Depositor shall ~~execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to~~ confirm that it has reviewed the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) it has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.been

Appears in 1 contract

Samples: Mortgage Loan Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-Sl1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the ~~Certificateholders for~~ Certificateholderx xxx such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in EDGAR-compatible form (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other xxxx as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certification in the form attached hereto as Exhibit T, xxxxxxxx xx xhe senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in EDGAR-compatible form, or in such other form as otherwise agreed upon xx xxe Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Sarbanes-Oxley Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB.~~ form attached herxxx xx Xxxxxxx T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”)~~ Oxley Certification required pursuant to Rule 13a -14 under ~~the Securities~~ txx Xxxxxxxxxx Exchange Act of 1934, as amended, and to deliver the original executed Sarbanes-Oxley Certification to the Trustee ~~shall file the same with the Securities and Exchange Commission prior~~ by March 12 of each year ix xxxxx xxx Xxsuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Sarbanes-~~K Certification (the “Trustee’s~~ Oxley Certification”). To the extent any information or ~~exhibits required to~~ exhibitx xxxxxxxx xx be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Enxxxx, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Rm5)

Periodic Filings. (a) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of~~ (each such event, a "Reportable Event"), and if directed by the ~~Trust at~~ Depositor and to the ~~direction and expense of~~ extent it receives the ~~Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a~~ Form 8-K ~~and shall have delivered to~~ Disclosure Information described below, the Trustee ~~no later than three Business Days prior to~~ shall prepare and file on behalf of the ~~filing deadline for such~~ Issuing Entity a Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent~~ that ~~a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify~~ the Depositor ~~of such event. The Trustee~~ shall ~~not be responsible for determining what information is required to be filed on a~~ file the initial Form 8-K in connection with the ~~transactions contemplated by this Agreement~~ issuance of the Certificates. Any disclosure or ~~what events shall cause~~ information related to a Reportable Event or that is otherwise required to be included on Form 8-K ~~to be required to be filed and shall not be liable for any late filing of a~~ (other than the initial Form 8-K) ("Form 8-K ~~in the event that it does not receive all information~~Disclosure Information") shall, ~~data, signatures and exhibits required to be provided or filed on or prior~~ pursuant to the ~~second Business Day prior to~~ paragraph immediately below, be reported by the applicable filing deadline. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as parties set forth on Exhibit ~~T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto~~ X and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust directed and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or approved by the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall will have no ~~responsibility~~ duty or liability for any failure hereunder to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events determine or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of prepare any Form 8-K ~~or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of~~ Disclosure Information absent such ~~filings)~~ reporting, direction and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination)approval. (b) ~~The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless~~ For so long as the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy Issuing entity is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, no later than close of business (Eastern time) on the ~~Trustee, solely at~~ second Business Day after the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. occurrence of a Reportable Event (i) ~~For so long as reports are~~ the parties listed on Exhibit X hereto shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the ~~Seller~~Depositor, ~~any affiliations or relationships that develop following~~ to the ~~Closing Date between such notifying person (or~~extent known, by a responsible officer thereof, in XXXXX-compatible format, or in such other format as otherwise agreed upon by the ~~case~~ Trustee and the Depositor and such party, the form and substance of the ~~Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a~~ Form 8-KK Disclosure Information described on Exhibit X applicable to such party, (ii) the parties listed on Exhibit X hereto shall include with such Additional Form 108-K ~~or Form 10-D with respect to~~ Disclosure, an Additional Disclosure Notification in the ~~Trust. (j) For so long~~ form attached hereto as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports)Exhibit Z-1, and (2iii) ~~has been subject to such filing requirements for~~ the ~~past 90 days. Notwithstanding the foregoing~~Depositor, ~~unless otherwise indicated in writing~~ by the ~~Depositor within~~ end of business Eastern time on the second day following such ~~10 day-period of time~~Reportable Event, ~~the Depositor~~ shall ~~be deemed to have notified the Servicer and the Trustee in the affirmative~~ approve, as to ~~clauses (1)~~ form and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicersubstance, or ~~the Trustee~~disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses~~Form 8-K Disclosure Information on Form 8-K. The Trustee has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit X of their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. (c) After preparing the Form 8-K, ~~claims~~the Trustee shall forward electronically, ~~damages or liabilities~~ no later than close of business (Eastern time) on the third Business Day after the Reportable Event (but in no event earlier than 24 hours after having received the Form 8-K Disclosure Information pursuant to the immediately preceding paragraph), a copy of the ~~Servicer~~Form 8-K to the Depositor and the Servicer for review. No later than the close of business on the third Business Day after the Reportable Event, or the ~~Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or~~ Depositor shall notify the Trustee and ~~its respective officers, directors and Affiliates~~ the Servicer in writing (which notice may be delivered electronically) of any changes to or approval of such Form 8-K. No later than Noon Eastern time on the ~~one hand~~ fourth Business Day after the Reportable Event, a senior officer of the 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 ~~Depositor~~ Trustee. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the ~~other~~Trustee will follow the procedures set forth in Section 3.27(n).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (OwnIt Mortgage Loan Trust Mortgage Loan Asset-Backed Certificates, Series 2006-7)

Periodic Filings. (a) The Trustee ~~will prepare~~ and ~~file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S, the Depositor, the Seller or~~ the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed reasonably cooperate with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify the Depositor ~~of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K~~ in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. ~~Notwithstanding~~ The Trustee shall prepare for execution by the ~~foregoing~~Depositor any Forms 10-D and 10-K and certain Form 8-K's (not to include any Form 8-K related to the filing of this Agreement and any amendments thereto), ~~none~~ required by the Exchange Act and the rules and regulations of the ~~Depositor~~Commission thereunder, in order to permit the ~~Servicer~~ timely filing thereof, and the Trustee shall ~~be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations~~ file (via the Commission's Electronic Data Gathering and ~~immunities under this Agreement~~Retrieval System, or EDGAR) such Forms executed by the Depositor. (eb) ~~In filing any Monthly Form 8-K or Form 10-K~~Within 15 xxxx after each Distribution Date (subject to permitted extensions under the Exchange Act), the Trustee shall ~~not undertake~~ prepare and file on behalf of the Trust any ~~analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed~~ Form 10-D required by the ~~Trustee~~ Exchange Act, in form and ~~reflected in~~ substance as required by the ~~statement set forth in Section 4.06(a) hereof. (f)~~ Exchange Act. The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall ~~promptly deliver~~ 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 reported to the Depositor and the ~~Servicer a copy of~~ Trustee by the parties set forth on Exhibit Q and directed and approved by the Depositor pursuant to the following paragraph. The Trustee will have no duty or liability for any ~~such executed report~~failure hereunder to determine or prepare any Additional Form 10-D Disclosure, ~~statement or information. (h) The obligations~~ except as set forth in ~~paragraphs (a) and (b) of this Section~~ the next paragraph. As set forth on Exhibit Q hereto, within 5 calendar days after the related Distribution Date, the parties, to the extent described on Exhibit Q, shall ~~only apply with respect to periods for which reports are~~ be required to ~~be filed~~ provide to the Trustee and the Depositor, to the extent known by such applicable parties, any Additional Form 10-D Disclosure, the form and substance of the Additional Form 10-D Disclosure described on Exhibit Q applicable to such party (and shall include with such Additional Form 10-D Disclosure an Additional Disclosure Notification in the form attached hereto as Exhibit U), and 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 Trustee has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit Q (other than with respect to the ~~Trust~~ Trustee) of their duties under ~~the Exchange Act. Prior to January 30 of the first year in which the Trustee is able to do so under applicable law~~this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information; provided, however, the Trustee shall ~~file~~ cooperate with the Depositor in a ~~Form 15 Suspension Notification~~ reasonable manner in order for the Depositor to comply with ~~respect to~~ its reporting obligations under the ~~Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number~~ Exchange Act as set forth in Section ~~15(d) of~~ 8.12(a). The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto~~ paragraph. The Trustee shall ~~again have the obligations set forth~~ compile all such information provided to it in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a ~~Form 8-K, Form 10-K or~~ Form 10-D ~~with respect~~ prepared by it. After preparing the Form 10-D, the Trustee shall forward electronically a copy of the Form 10-D to the ~~Trust. (j) For so long as reports are required to be filed with the Securities~~ Depositor for approval and ~~Exchange Commission under the Exchange Act with respect~~ execution. No later than 2 Business Days prior to the ~~Trust~~15th calendar day after the related Distribution Date, an officer of the Depositor shall ~~notify~~ sign the ~~Servicer~~ 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. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in ~~writing within 10 days following any Distribution Date as~~ Section 8.12(f)(ii). Form 10-D requires the Depositor to ~~whether the registrant~~ indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the ~~registrant~~ Depositor was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days~~. Notwithstanding~~ ." The Depositor hereby instructs the ~~foregoing~~Trustee, with respect to each Form 10-D, to check "yes" for each item unless ~~otherwise indicated in writing by~~ the Trustee has received timely prior written notice from the Depositor ~~within such 10 day-period of time,~~ that the ~~Depositor shall~~ answer should be ~~deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above~~"no" for an item. The Depositor shall ~~indemnify~~ notify the Trustee in writing, as soon as reasonably practicable but no later than 5 Business Days prior to the 15th calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D, if the answer to the questions should be "no." The Trustee shall be entitled to rely on such instructions in preparing and/or filing any such Form 10-D. The Depositor acknowledges that the performance by the Trustee of its duties under this Section 8.12(b) related to the timely preparation and ~~hold harmless~~ filing of Form 10-D is contingent upon the Custodian, the Servicer (including Subcontractors and Servicing Function Participant) and the Depositor observing all applicable deadlines in the performance of their duties under this Section 8.12(b). The Trustee shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 10-D, where such failure results from the Trustee's inability or failure to receive, on a timely basis, any information from any party hereto (other than the Trustee or any Subcontractor utilized by the Trustee) needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. (c) On or before 90 days after the end of each fiscal year of the Trust or such earlier date as may be required by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the Trustee shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Trustee within the applicable time frames set forth in this Agreement, (i) an annual compliance statement for the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable each Subservicer engaged by the Servicer, as described under Section 3.22, (ii)(A) the annual reports on assessment of compliance with servicing criteria for the Trustee, the Servicer, the Custodian, each Subservicer engaged by the Servicer and each Servicing Function Participant utilized by the Servicer, the Custodian or the Trustee, as described under Section 3.23, and (B) if any such report on assessment of compliance with servicing criteria described under Section 3.23 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or such report on assessment of compliance with servicing criteria described under Section 3.23 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, (iii) (A) the registered public accounting firm attestation report for the Trustee, the Servicer, the Custodian, each Subservicer engaged by the Servicer and each Servicing Function Participant utilized by the Servicer, the Custodian or the Trustee, as described under Section 3.23, and (B) if any registered public accounting firm attestation report described under Section 3.23 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 certification in the form attached hereto as Exhibit L, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the "Sarbanes Certification"), which shall be signed by the senior officer of the Depositor in charge of securitization. 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 reported to the Depositor and the Trustee by the parties set forth on Exhibit R and directed and approved by the Depositor pursuant to the following paragraph. The Trustee 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 R hereto, no later than March 1 of each year (or, in the case of the Servicer, March 15th of each year) that the Trust is subject to the Exchange Act reporting requirements, commencing in 2008, the parties, to the extent described on Exhibit R, shall be required to provide to the Trustee and the Depositor, to the extent known by such applicable parties, any Additional Form 10-K Disclosure, the form and substance of the Additional Form 10-K Disclosure described on Exhibit R applicable to such party (and shall include with such Additional Form 10-K Disclosure an Additional Disclosure Notification in the form attached hereto as Exhibit U), and the Depositor will approve, as to form and substance, or disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses, claims, damages~~ Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under this Agreement to monitor or ~~liabilities of~~ enforce the ~~Servicer, or~~ performance by the parties listed on Exhibit R (other than with respect to the Trustee) of their duties under this paragraph or proactively solicit from such parties any Additional Form 10-K Disclosure information; provided, ~~as the case may be~~however, ~~its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or~~ the Trustee ~~and its respective officers, directors and Affiliates on the one hand and~~ shall cooperate with the Depositor in a reasonable manner in order for the Depositor to comply with its reporting obligations under the Exchange Act as set forth in Section 8.12(a). The Depositor will be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Additional Form 10-K Disclosure on ~~the other~~Form 10-K pursuant to this paragraph. The Trustee shall compile all such information provided to it in a Form 10-K prepared by it.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (EquiFirst Loan Securitization Trust 2007-1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee in accordance with Section 4.05 will be deemed to have represented to the Servicer that the Monthly Statement has been properly prepared by the Trustee in accordance with Section 4.05 and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in Section 3.17 of the Agreement, (ii)(A) the annual reports on Assessment of Compliance with Servicing Criteria for each Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such compliance (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the ~~case~~ Section 3.18 of the ~~Trustee’s Assessment~~ Agreement identifies any material instance of ~~Compliance~~noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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) ~~and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification,~~ a Xxxxxxxx-Xxxxx Certification in the form attached hereto as Exhibit ~~O-1~~ T, executed by the senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the ~~Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit~~ direction of the Depositor pursuant to the following paragraph and the ~~Servicer and their officers, directors and affiliates regarding certain aspects of the~~ Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included~~ Disclosure, except as set forth in the ~~Form 10-K are not timely received by~~ next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the ~~Trustee prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~Exchange Act reporting requirements, ~~the Trustee shall~~commencing in 2007, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) ~~no notice is provided~~ certain parties to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment transaction shall be ~~made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement~~ required to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver provide to the Depositor and the ~~Servicer a copy of~~ Servicer, to the extent known, any ~~such executed report~~Additional Form 10-K Disclosure, ~~statement or information. (h) The obligations set forth in paragraphs (a)~~ if applicable, and (bii) ~~of this Section shall only apply with respect to periods for which reports are required to be filed with respect~~ the Depositor shall, to the ~~Trust under~~ extent it deems necessary, forward to the ~~Exchange Act. Prior to January 30~~ Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-K Disclosure on Form 10-K ~~and 10-D as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Loan Asset-Backed Certificates, Series 2006-He3)

Periodic Filings. (a) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction~~ (each such event, a "Reportable Event"), and ~~expense of the Depositor, provided, that, as set forth on Exhibit S,~~ if requested by the Depositor, the ~~Seller or~~ Securities Administrator shall prepare and file on behalf of the ~~Servicer shall have timely notified the Trustee of an item reportable on~~ Issuing Entity a ~~Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such~~ Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent~~ that ~~a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify~~ the Depositor ~~of such event. The Trustee~~ shall ~~not be responsible for determining what information is required to be filed on a~~ file the initial Form 8-K in connection with the ~~transactions contemplated~~ 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 (other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported by the parties set forth on Exhibit W to the Depositor and the Securities Administrator and directed and approved by the Depositor, 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. (b) For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (A) each party listed on Exhibit W hereto shall be required to provide to the Securities Administrator and the Depositor, to the extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information if applicable, together with the form set forth on Exhibit U (the "Additional Disclosure Notification") by the close of business New York City time on the 2nd Business Day following the occurrence of such Reportable Event and (B) the Depositor, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities Administrator has no duty under this Agreement to monitor or ~~what events~~ enforce the performance by the parties listed on Exhibit W of their duties under this paragraph or proactively solicit or procure from such parties any 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. (c) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a copy of the Form 8-K to the Depositor for review. Promptly, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall ~~cause~~ 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 receipt of any written changes or 102 approval, or if the Depositor does not request a copy of a Form 8-K, 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 representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K ~~to be required to~~ cannot be filed ~~and shall not be liable for any late filing of~~ 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 9.21(n). (d) Promptly (but no later than one 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 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 its duties under this Section 9.21 related to the timely preparation, execution and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event~~ performance of their duties under this Section 9.21. The Depositor acknowledges that ~~it does not receive all information, data, signatures~~ the performance by the Master Servicer and ~~exhibits required to be provided or filed on or prior~~ the Securities Administrator of its duties under this Section 9.21 related to the ~~second Business Day prior~~ timely preparation, execution and filing of Form 8-K is also contingent upon the Servicers, the Custodian and any Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of any necessary Form 8-K Disclosure Information pursuant to the Custodial Agreement, the FRB Purchase and Servicing Agreement or any other applicable ~~filing deadline~~agreement. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage or claim arising out of or 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 timely basis, any information from any other party hereto or any Servicer, Custodian or Servicing Function Participant needed to prepare, arrange for execution or file such Form 8-K. (e) Within 15 fifteen days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the ~~Trustee~~ Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ the Electronic Data Gathering and Retrieval System (XXXXX), a Form 10-K D with ~~respect~~ (1) a copy of the Monthly Statement for such Distribution Date as an exhibit thereto. Any disclosure in addition to the ~~Trust Fund. To facilitate the Trustee’s preparation of the~~ Monthly Statement that is required to be included on Form 10-~~K, the Trustee shall provide to the Depositor its proposed~~ D ("Additional Form 10-~~K template no later than forty-five (45~~D Disclosure") ~~days prior to~~ shall be reported by the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required~~ X to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the ~~Servicer~~ Securities Administrator and ~~their officers, directors~~ directed and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received approved by the ~~Trustee prior~~ Depositor pursuant to the ~~Form 10-K Filing Deadline~~following paragraph, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and ~~interpretations of~~ the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect Administrator will have no duty or liability for any failure hereunder to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to determine or prepare ~~and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each~~ any Additional Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party Disclosure except as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in ~~Section 4.06(a) hereof~~the next paragraph. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations As set forth in ~~paragraphs (a) and (b) of this Section shall only apply with respect to periods~~ Exhibit X hereto, for ~~which reports are required to be filed with respect to~~ so long as the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee~~ Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the ~~Trustee~~related Distribution Date (i) each party listed on Exhibit X hereto shall be required to provide to the Depositor and the Securities Administrator, ~~solely at~~ to the ~~Depositor’s prior written direction~~ extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and ~~expense~~such party, ~~shall recommence preparing~~ the form and ~~filing reports~~ substance of any Additional Form 10-D Disclosure if applicable together with the 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 Additional Form 10-D Disclosure on Form 10-~~K and 10-D as required pursuant~~ D. The Securities Administrator has no duty under this Agreement to ~~this Section 3.22 and~~ monitor or enforce the performance by the parties ~~hereto shall again have the obligations set forth in~~ listed on Exhibit X of their duties under this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of paragraph or proactively solicit or procure from such parties any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses incurred by the Securities 103 Administrator in connection with ~~respect~~ including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~the Trust~~this paragraph. (jg) ~~For so long as reports are required to be filed with~~ After preparing the Form 10-D, the Securities ~~and Exchange Commission under~~ Administrator shall, upon request, forward electronically a copy of the ~~Exchange Act with respect~~ Form 10-D to the ~~Trust~~Depositor for review (provided that such Form 10-D includes any Additional Form 10-D Disclosure). Within two Business Days after receipt of such copy, but no later than the 12th calendar day after the Distribution Date, the Depositor shall notify the ~~Servicer~~ Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 10-D, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Trustee~~ Securities Administrator may proceed with the execution and filing of the Form 10-D. A duly authorized representative of the Master Servicer shall sign each 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 ~~writing within 10 days following any Distribution Date as to whether~~ Section 9.21(n). Promptly (but not later than one 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-D prepared and filed by the Securities Administrator. Form 10-D requires the registrant to indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days." The Depositor hereby instructs the Securities Administrator, with respect to each Form 10-D, to check "yes" for each item unless the Securities Administrator has received timely prior written notice from the Depositor that the answer should be "no" for an item. ~~Notwithstanding~~ The parties to this Agreement acknowledge that the ~~foregoing, unless otherwise indicated in writing~~ performance by the ~~Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the~~ Master Servicer and the ~~Trustee~~ Securities Administrator of its respective duties under this Section 9.21 related to the timely preparation, execution and filing of Form 10-D is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~affirmative as to clauses (1) and (2) above~~performance of their duties under this Section 9.21. The Depositor ~~shall indemnify and hold harmless each of~~ acknowledges that the performance by the Master Servicer and the ~~Trustee~~Securities Administrator of its duties under this Section 9.21 related to the timely preparation, execution and ~~officers~~filing of Form 10-D is also contingent upon the Servicers, ~~directors~~ the Custodian and ~~Affiliates~~ any Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of ~~each~~any necessary Additional Form 10-D Disclosure pursuant to the Custodial Agreement, ~~from~~ FRB Purchase and ~~against~~ Servicing Agreement or any ~~losses~~other applicable agreement. Neither the Master Servicer nor the Securities Administrator will have any liability for any loss, ~~damages~~expense, ~~penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of ~~the Depositor’s~~ or with respect to any failure to ~~provide~~ properly prepare, execute and/or timely file such Form 10-D resulting from the ~~accurate~~ Securities Administrator's inability or failure to receive any information ~~required pursuant~~ needed to ~~this Section 3.22(j)~~prepare, ~~other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out~~ arrange for execution or file such Form 10-D on a timely basis. (h) On or prior to the 90th calendar day after the end of the ~~Servicer’s~~ fiscal year for the Issuing Entity or such earlier date as may be required by the ~~Trustee’s breach~~ Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal year for the Issuing Entity ends on December 31st of ~~its respective obligations under~~ each year) commencing in March 2007, the Securities Administrator shall, on behalf of the Issuing Entity and in accordance with industry standards, prepare and file with the Commission via XXXXX a Form 10 -K with respect to the Issuing Entity. Such Form 10-K shall include the following items, in each case, as applicable, to the extent they have been delivered to the Securities Administrator within the applicable time frames set forth in this Agreement~~. If~~ , the ~~indemnification provided~~ FRB Purchase and Servicing Agreement and the Custodial Agreement (i) an annual compliance statement for ~~herein is unavailable or insufficient to hold harmless~~ the ~~Servicer~~ Master Servicer, each Servicer, the Securities Administrator and any Servicing Function Participant engaged by such parties or the Trustee ~~and its respective officers~~(together with the Custodian, ~~directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as~~ each a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.104

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series MLCC 2006-2)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X 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 an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the 90th calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the trust), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in ~~the case~~ Section 3.17 of the ~~Trustee’s Assessment~~ Agreement, (ii)(A) the annual reports on assessment of ~~Compliance)~~ compliance with servicing criteria for each Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB~~. The~~ ), as described in Section 3.18 of the Agreement, and (B) if any Reporting Servicer's report on assessment of compliance with servicing criteria described in Section 3.18 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any report on assessment of compliance with servicing criteria described in Section 3.18 of the Agreement is not included as an exhibit to such Form 10-K, disclosure that such report is not (A) the registered public accounting firm attestation report for the Servicer ~~will cause its senior officer~~ and each Subservicer, as described in ~~charge~~ Section 3.18 of ~~securitization~~ the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to ~~execute the certification~~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 in the form attached hereto as Exhibit ~~O-1~~ T, executed by the senior officer in charge of securitizations of the Servicer. Any disclosure or information in addition to (~~the “~~i) through (iv) above that is required to be included on Form 10-K ~~Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the~~ ("Additional Form 10-K ~~Filing Deadline. In connection therewith,~~ Disclosure") shall be determined and prepared by and at the ~~Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit~~ direction of the Depositor pursuant to the following paragraph and the ~~Servicer and their officers, directors and affiliates regarding certain aspects of the~~ Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K ~~Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included~~ Disclosure, except as set forth in the ~~Form 10-K are not timely received by~~ next paragraph. As set forth in Schedule Z hereto, no later than March 12 of each year that the ~~Trustee prior~~ Trust is subject to the ~~Form 10-K Filing Deadline~~Exchange Act reporting requirements, ~~the Trustee shall~~commencing in 2007, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) ~~no notice is provided~~ certain parties to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment transaction shall be ~~made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement~~ required to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver provide to the Depositor and the ~~Servicer a copy of~~ Servicer, to the extent known, any ~~such executed report~~Additional Form 10-K Disclosure, ~~statement or information. (h) The obligations set forth in paragraphs (a)~~ if applicable, and (bii) ~~of this Section shall only apply with respect to periods for which reports are required to be filed with respect~~ the Depositor shall, to the ~~Trust under~~ extent it deems necessary, forward to the ~~Exchange Act. Prior to January 30~~ Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-K Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-K Disclosure on Form 10-K ~~and 10-D as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Rm2)

Periodic Filings. (a) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction~~ (each such event, a "Reportable Event"), and ~~expense of the Depositor, provided, that, as set forth on Exhibit S,~~ if requested by the Depositor, the ~~Seller or~~ Securities Administrator shall prepare and file on behalf of the ~~Servicer shall have timely notified the Trustee of an item reportable on~~ Issuing Entity a ~~Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such~~ Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent~~ that ~~a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify~~ the Depositor ~~of such event. The Trustee~~ shall ~~not be responsible for determining what information is required to be filed on a~~ file the initial Form 8-K in connection with the ~~transactions contemplated~~ 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 (other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported by the parties set forth on Exhibit Q-3 to the Depositor and the Securities Administrator and directed and approved by the Depositor, 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. (b) For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (A) each party listed on Exhibit Q-3 hereto shall use commercially reasonable best efforts to provide immediate notice to the Master Servicer, the Securities Administrator and the Depositor, by fax and by phone or by e-mail and by phone, (B) each such party shall be required to provide to the Securities Administrator and the Depositor, to the extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information if applicable, together with the form set forth on Exhibit O (the "Additional Disclosure Notification") by the close of business New York City time on the 2nd Business Day following the occurrence of such Reportable Event and (C) the Depositor, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities Administrator has no duty under this Agreement to monitor or ~~what events~~ enforce the performance by the parties listed on Exhibit Q-3 of their duties under this paragraph or proactively solicit or procure from such parties any 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. (c) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a copy of the Form 8-K to the Depositor. Promptly, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall ~~cause~~ 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 receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 8-K, 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 process for execution and filing of the Form 8-K. A duly authorized representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K ~~to be required to~~ cannot be filed ~~and shall not be liable for any late filing of~~ on -101- time or if a previously filed Form 8-K needs to be amended, the Securities Administrator will follow the procedures set forth in Section 3.18(n). (d) Promptly (but no later than one 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 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 its duties under this Section 3.18 related to the timely preparation, execution and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event~~ performance of their duties under this Section 3.18. The Depositor acknowledges that ~~it does not receive all information, data, signatures~~ the performance by the Master Servicer and ~~exhibits required to be provided or filed on or prior~~ the Securities Administrator of its duties under this Section 3.18 related to the ~~second Business Day prior~~ timely preparation, execution and filing of Form 8-K is also contingent upon the Servicers, the Custodian and any Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of any necessary Form 8-K Disclosure Information pursuant to the related Servicing Agreements, the Custodial Agreement or any other applicable ~~filing deadline~~agreement. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage or claim arising out of or 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 timely basis, any information from any other party hereto or any Servicer, Custodian or Servicing Function Participant needed to prepare, arrange for execution or file such Form 8-K. (e) Within 15 fifteen (15) days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the ~~Trustee~~ Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ the Electronic Data Gathering and Retrieval System (XXXXX), a Form 10-K D with ~~respect~~ a copy of the Monthly Statement for such Distribution Date as an exhibit thereto. Any disclosure in addition to the ~~Trust Fund. To facilitate the Trustee’s preparation of the~~ Monthly Statement that is required to be included on Form 10-~~K, the Trustee shall provide to the Depositor its proposed~~ D ("Additional Form 10-~~K template no later than forty-five (45~~D Disclosure") ~~days prior to~~ shall be reported by the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required~~ Q-1 to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the ~~Servicer~~ Securities Administrator and ~~their officers, directors~~ directed and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received approved by the ~~Trustee prior~~ Depositor pursuant to the ~~Form 10-K Filing Deadline~~following paragraph, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and ~~interpretations of~~ the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect Administrator will have no duty or liability for any failure hereunder to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to determine or prepare ~~and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each~~ any Additional Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party Disclosure except as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in ~~Section 4.06(a) hereof~~the next paragraph. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations As set forth in ~~paragraphs (a) and (b) of this Section shall only apply with respect to periods~~ Exhibit Q-1 hereto, for ~~which reports are required to be filed with respect to~~ so long as the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee~~ Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the ~~Trustee~~related Distribution Date (i) each party listed on Exhibit Q-1 hereto shall be required to provide to the Depositor and the Securities Administrator, ~~solely at~~ to the ~~Depositor’s prior written direction~~ extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and ~~expense~~such party, ~~shall recommence preparing~~ the form and ~~filing reports~~ substance of any Additional Form 10-D Disclosure 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 Additional Form 10-D Disclosure on Form 10-~~K and 10-D as required pursuant~~ D. The Securities Administrator has no duty under this Agreement to ~~this Section 3.22 and~~ monitor or enforce the performance by the parties ~~hereto shall again have the obligations set forth in~~ listed on Exhibit Q-1 of their duties under this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of paragraph or proactively solicit or procure from such parties any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses incurred by the Securities Administrator in connection with ~~respect~~ including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~the Trust~~this paragraph. (jg) ~~For so long as reports are required to be filed with~~ After preparing the Form 10-D, the Securities ~~and Exchange Commission under~~ Administrator shall, upon request, forward electronically a copy of the ~~Exchange Act with respect~~ Form 10-D to the ~~Trust~~Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure). Within two Business Days after receipt of such copy, but no later than the 12th calendar day after the Distribution Date, the Depositor shall notify the ~~Servicer~~ Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 10-D, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Trustee~~ Securities Administrator may proceed with the process for execution and filing of the Form 10-D. A duly authorized representative of the Master Servicer shall sign each 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 ~~writing within 10 days following any Distribution Date as to whether~~ Section 3.18(n). Promptly (but not later than one 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-D prepared and filed by the Securities Administrator. Form 10-D requires the registrant to indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days~~. Notwithstanding~~ ." The Depositor hereby represents to the ~~foregoing, unless otherwise indicated in writing by~~ Securities Administrator that the Depositor ~~within~~ has filed all such ~~10 day-period of time,~~ required reports during the ~~Depositor shall be deemed~~ preceding 12 months and that it has been subject to ~~have notified~~ such filing requirement for the ~~Servicer and the Trustee in the affirmative as to clauses (1) and (2) above~~past 90 days. The Depositor shall ~~indemnify and hold harmless each~~ 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-D, if the answer to the questions should be "no." The Securities Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such Form 10-D. The parties to this Agreement acknowledge that the performance by the Master Servicer and the ~~Trustee~~Securities Administrator of its respective duties under this Section 3.18 related to the timely preparation, execution and ~~officers~~filing of Form 10-D is contingent upon the other parties hereto strictly observing all applicable deadlines in the performance of their duties under this Section 3.18. The Depositor acknowledges that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 3.18 related to the timely preparation, ~~directors~~ execution and ~~Affiliates~~ filing of ~~each~~Form 10-D is also contingent upon the Servicers, ~~from~~ the Custodian and ~~against~~ any ~~losses~~Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of any necessary Additional Form 10-D Disclosure pursuant to the related Servicing Agreements, ~~damages~~the Custodial Agreement or any other applicable agreement. Neither the Master Servicer nor the Securities Administrator will have any liability for any loss, ~~penalties~~expense, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of ~~the Depositor’s~~ or with respect to any failure to ~~provide~~ properly prepare, execute and/or timely file such Form 10-D resulting from the ~~accurate~~ Securities Administrator's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (h) On or prior to the 90th calendar day after the end of the fiscal year for the Issuing Entity or such earlier date as may be required by the Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal year for the Issuing Entity ends on December 31st of each (A) the registered public accounting firm attestation report for each Reporting Servicer, as described in Section 3.17 of this Agreement, the related Servicing Agreement and the Custodial Agreement, and (B) if any registered public accounting firm attestation report described under Section 3.17 of this Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit L, executed by the senior officer in charge of securitizations of the Master Servicer. 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 reported by the parties as set forth in Exhibit Q-2 to the Depositor and the Securities Administrator and directed and approved by the Depositor pursuant to ~~this Section 3.22(j)~~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 or set forth in the next paragraph. (i) As set forth in Exhibit Q-2 hereto, ~~other~~ no later than ~~any losses~~March 1 (with a ten calendar day cure period) of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, ~~damages~~commencing in March 2008, ~~penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of~~ (i) the ~~Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient~~ parties listed on Exhibit Q-2 hereto shall be required to ~~hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then~~ provide to the Depositor ~~shall contribute~~ and the Securities Administrator, to the ~~amount paid~~ extent known, in XXXXX-compatible format or ~~payable~~ in such other format as agreed upon by the ~~Servicer~~Securities Administrator and such party, the form and substance of any Additional Form 10-K Disclosure, if applicable together with an Additional Disclosure Notification, and (ii) the Depositor will approve, as to form and substance, or ~~the Trustee~~disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses~~-104- Additional Form 10-K Disclosure and shall forward such Additional Form 10-K Disclosure. The Securities Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit Q-2 of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses incurred by the Securities Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. (j) After preparing the Form 10-K, ~~claims~~the Securities Administrator shall, ~~damages or liabilities~~ upon request, forward electronically a copy of the ~~Servicer~~Form 10-K to the Depositor. Within three Business Days after receipt of such copy, but no later than March 25th, 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 receipt of any written changes or approval, or if the ~~Trustee~~Depositor does not request a copy of a Form 10-K, as the ~~case~~ Securities Administrator shall be entitled to assume that such Form 10-K is in final form and the Securities Administrator may ~~be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect~~ proceed with the ~~relative fault~~ process for execution and filing of the ~~Servicer~~Form 10-K. A senior officer of the Master Servicer in charge of the master servicing function 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 3.18(n). Promptly (but no later than one 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 prepared and filed by the Securities Administrator. Form 10-K requires the registrant to indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Trustee~~ Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and ~~its respective officers, directors and Affiliates on~~ (2) has been subject to such filing requirements for the ~~one hand and~~ past 90 days." The Depositor hereby represents to the Securities Administrator that the Depositor on has filed all such required reports during the ~~other.~~preceding 12 months and that it has been subject to such filing requirement for the past 90 days. The Depositor shall notify the Securities Administrator in writing, no later than the 15th calendar day of March in any year in which the Trust is subject to the reporting requirements of the Exchange Act, if the answer to the questions should be "

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-A2)

Periodic Filings. (a) The Trustee will prepare and file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit SR, the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-KK listed on Exhibit R hereto, the Trustee shall notify the Depositor of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~"XXXXX"), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit TS, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit TS; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to March 31 30 of each subsequent year~~) (the “Form 10-K Filing Deadline”~~), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via ~~EXXXX~~ XXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit UT, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s 's Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s 's Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit ~~O-1~~ P-3 (the “"Form 10-K Certification”") required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to ~~the Form 10-K Filing Deadline~~Xxxxx 00, 0000 (xxx, if applicable, prior to March 30 of each year). In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~P-5) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K ~~Certification (the “Trustee’s~~ Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the The Trustee shall attach to any Form 10-D the signature page of the ~~Depositor~~ Servicer (such signature page to have been delivered by the Servicer to the Trustee on the Closing Date) and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 8-Ks, 10-Ds and 10-Ks ~~and the Depositor shall execute any and all Form 8-Ks and 10-Ds~~ required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the ~~EXXXX~~ XXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first ~~Business~~ Busines Day after the related Distribution Date or (or) (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 30 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the ~~Trust~~ Trustee is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee ~~shall, subject to Sections 8.01 and 8.02,~~ shall indemnify and hold harmless the ~~Depositor, the~~ Servicer and ~~any director~~its officers, ~~officer, employee or agent of the Depositor~~ directors and ~~the Servicer~~ Affiliates from and ~~hold them harmless~~ against any ~~and all claims,~~ losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, ~~judgments,~~ judgments and ~~any~~ other ~~costs, fees~~ costs and expenses ~~(other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure~~ arising out of the ~~Trustee~~ Trustee's failure to ~~perform any of its obligations~~ deliver the certification (in the form attached hereto as Exhibit P-5) pursuant to Section ~~3.22(a), (y~~3.29(a) ~~or Trustee’s negligence, bad faith or willful misconduct in connection therewith~~ or any inaccuracy in ~~the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent~~ such ~~inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC~~certification, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other ~~costs, fees~~ costs and expenses arising out of the Servicer~~’s or any other party’s~~ 's breach of its obligations under this ~~Agreement or any other related agreement~~Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless ~~any indemnified party~~the Servicer and its officers, directors and Affiliates, then the Trustee shall contribute to the amount paid or payable by the ~~indemnified party~~ Servicer, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of ~~such indemnified party~~ the Servicer, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the ~~indemnified party~~ Servicer and its officers, directors and Affiliates on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s 's failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section ~~3.22(a~~3.29(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s 's breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and ~~Affiliates~~ Affiliate on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.29, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.29 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.29. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such ~~amendment~~ Amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.29 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s 's report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.29. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s 's prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section ~~3.22~~ 3.29 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the ~~Seller~~ Sponsor shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the ~~Seller~~Sponsor, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an the Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Ownit Mortgage Loan Trust, Series 2006-1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format (or other ~~such other~~ word processing format ~~reasonably~~ that is acceptable to the Trustee~~. To~~ ) agreed upon by the Trustee and Depositor, Sponsor or Servicer and (iii) the Depositor or the Trustee, to the extent ~~that a Responsible Officer of~~ the ~~Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the Servicer shall sign the Form 8-K and return an -106- electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in a Microsoft Word format (or other word processing format that is acceptable to the ~~first Business Day immediately following~~ Trustee) (with a copy to the Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in Microsoft Word format (or such other word processing format that is acceptable to the Trustee), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign forward electronically a ~~certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects~~ draft copy of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer ~~a copy~~ for review. Upon the request of ~~any such executed report~~the Servicer, ~~statement or information.~~ the Depositor shall confirm that it has reviewed the Form 10-K, that it has been properly prepared and that the Servicer may rely on the accuracy thereof (~~h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply~~ other than with respect to ~~periods for which reports are required to be filed~~ any portion of the Form 10-K or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the ~~Trust under~~ Servicer has relied on the ~~Exchange Act~~Trustee)). ~~Prior to January 30~~ No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the first year in which the Trustee is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10if requested, the above-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of described confirmation from the Depositor, ~~the Trustee,~~ a senior officer of the Servicer ~~and~~ shall sign the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K and return an electronic or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) fax copy of ~~the Securities Exchange Act of 1934 during the preceding 12 months (or for~~ such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.signed Form

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-4)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the -105- Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~EDGAR), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a~~ wixx x copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in EDGAR-compatible form (xxxx a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. ~~Prior~~ The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~Mxxxx 00~~this paragraph. After preparing the Form 10-D at the direction of the Depositor, ~~0000~~ the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (~~xxx~~2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 Sarbanes-Oxley Certifixxxxxx xx xxx form attached hereto as Exhibit T, executed by the senior officer in charge of securitizations of the Servicer. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 12 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2008, (i) certain parties to the transaction shall be required to provide to the Depositor and the Servicer, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in EDGAR-compatible form, xx xn such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline~~ to the Depositor and the Servicer for review. Upon the request of the Servicer, the Depositor shall ~~review such template~~ confirm that it has reviewed the Form 10-K, that it has been properly prepared and ~~provide~~ that the Servicer may rely on the accuracy thereof (other than with respect to ~~the Trustee, no later than thirty (30) days prior to~~ any portion of the Form 10-K ~~Filing Deadline~~or any exhibit thereto provided by the Servicer (other than any portion thereof with respect to which the Servicer has relied on the Trustee)). No later than 5:00 p.m. EST on the 3rd Business Day following receipt of a final copy of the Form 10-K and if requested, ~~any comments~~ the above-described confirmation from the Depositor, a senior officer of the 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 Trustee and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. The Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Sarbanes-Oxley Certifixxxxxx") xxxxx shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The Servicer will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Sarbanes-~~K Certification”) required~~ Oxley Certifixxxxxx xxxxxxxd pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Sarbanes-Oxley Certifixxxxxx xx xxx Trustee ~~shall file~~ by March 12 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the ~~Depositor and the~~ Servicer and ~~their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Sarbanes-~~K Certification (the “Trustee’s Certification”)~~Oxley Certifixxxxxx. ~~To the~~ Xx xxx extent any information or exhibits required to be included in the Form ~~10-K~~ 10 -K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted pursuant to the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. ~~Promptly following~~ On or before January 30, 2008, the ~~first date~~ Trustee shall, if legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission~~, the Trustee shall~~, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ EDGAR a Form 15 ~~Suspension~~ Suspenxxxx Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form~~ 8-Ks, Form 10-Ds and Form 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreementhereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the ~~Certificateholders~~ Certificateholders, and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the ~~Servicer~~ Servicer, and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff2)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule V hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S~~(a "reportable event"), the Depositor, the ~~Seller~~ Sponsor or the ~~Servicer~~ Servicer, as applicable, shall have (i) timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and ~~shall have~~ (ii) delivered to the Trustee ~~no later than three Business Days prior to the filing deadline for such Form 8-K,~~ all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ an XXXXX-compatible format agreed upon by the Trustee and Depositor, Sponsor or ~~other~~ Servicer. In the event that the reportable event does not pertain to the Servicer, at the time such ~~other format reasonably acceptable~~ notice is provided to the Trustee~~. To~~ , the Depositor or the Trustee, to the extent ~~that a Responsible Officer of~~ the ~~Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than the end of business on the second Business Day after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K within two (2) Business Days; provided that the Depositor has notified the Trustee in writing that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing a Form 8-K with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information or signatures needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed with~~ shall be determined and prepared by and at the ~~SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out~~ direction of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute Depositor pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicerfollowing paragraph, and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction determine or ~~withdrawal of the rating of~~ prepare any ~~outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee~~ additional information on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement D ("Additional Form 10-D Disclosure") as set forth in ~~Section 4.06(a) hereof. (f)~~ the next paragraph. The ~~Depositor, the Servicer and~~ Depositor shall notify the Trustee ~~agree~~ of its intent to ~~use their good faith efforts~~ provide Additional Form 10-D Disclosure prior to ~~cooperate~~ the related Distribution Date. As set forth in ~~complying with~~ Schedule W hereto, within five (5) calendar days after the ~~requirements of this Section 3.22.~~ related Distribution Date (gi) ~~Upon any filing with~~ the ~~Securities and Exchange Commission~~parties hereto, ~~the Trustee shall promptly deliver~~ as applicable, will be required to provide to the Depositor and the ~~Servicer~~ Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, will forward to the Trustee in XXXXX-compatible form (with a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the ~~Trust under~~ Servicer), or in such other form as otherwise agreed upon by the ~~Exchange Act. Prior to January 30~~ Trustee and the Depositor, the form and substance of the ~~first year in which~~ Additional Form 10-D Disclosure by the fifth (5th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~is able to do so under applicable law, the Trustee shall file a~~ in connection with including any Additional Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports 10-D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (SURF Mortgage Loan Asset-Backed Certificates, Series 2007-Bc1)

Periodic Filings. (a) The Trustee will prepare and file Current Reports on Form 8-K in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit SR, the Depositor, the Seller or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent that a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify the Depositor of such event. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement or what events shall cause a Form 8-K to be required to be filed and shall not be liable for any late filing of a Form 8-K in the event that it does not receive 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. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~"XXXXX"), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit TS, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit TS; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to March 31 30 of each subsequent year~~) (the “Form 10-K Filing Deadline”~~), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via ~~EXXXX~~ XXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit UT, such Form 10-K shall 84 include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s 's Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s 's Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit ~~O-1~~ P-3 (the “"Form 10-K Certification”") required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to ~~the Form 10-K Filing Deadline~~Xxxxx 00, 0000 (xxx, if applicable, prior to March 30 of each year). In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit ~~O-2~~P-5) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “"Trustee’s 's Certification”"). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the ~~Depositor~~Servicer. Upon receipt of written notice to the Trustee via electronic mail to ~~mxxxxxx.xxxxxxxx@xxxxxx.xxx~~xxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to ~~sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx~~xxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the ~~Depositor~~ Servicer that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the ~~Depositor~~ Servicer (such signature page to have been delivered by the Servicer to the Trustee on the Closing Date) and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 8-Ks, 10-Ds and 10-Ks ~~and the Depositor shall execute any and all Form 8-Ks and 10-Ds~~ required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the ~~EXXXX~~ XXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section ~~3.22(a~~3.29(a), (y) or Trustee’s 's negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s 's Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s 's or any other party’s 's breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s 's failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section ~~3.22(a~~3.29(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s 's breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.29, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.29 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.29. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.29 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s 's report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.29. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s 's prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section ~~3.22~~ 3.29 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s 's failure to provide the accurate information required pursuant to this Section ~~3.22(j~~3.29(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s 's or the Trustee’s 's breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (C-Bass Mortgage Loan Asset-Backed Series 2006-Cb4)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule V hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the second Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice) and (ii) shall have delivered to the Trustee no later than ~~three~~ two (2) Business Days prior to the filing deadline for such Form 8-K, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic or other such other~~ an XXXXX-compatible format ~~reasonably acceptable to the Trustee. To the extent that a Responsible Officer of~~ agreed upon by the Trustee ~~has actual knowledge of an event relating to Items 3.03~~and Depositor, ~~6.02, 6.03~~ Sponsor or ~~6.04 of Form 8-K, the Trustee shall notify the Depositor of such event~~Servicer. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing deadline. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than the end of business on the second Business Day after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K within two (2) Business Days; provided that the Depositor has notified the Trustee in writing that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing a Form 8-K with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information or signatures needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust and in accordance with industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a Form 10-K with respect to the Trust Fund. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or ~~any other party) that is contained~~ Depositor to be included in ~~any~~ Form 10-D ~~filed with~~ shall be determined and prepared by and at the ~~SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out~~ direction of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute Depositor pursuant to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicerfollowing paragraph, and the Trustee will ~~reasonably cooperate~~ have no duty or liability for any failure hereunder to ~~amend~~ determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as set forth in the ~~provisions~~ next paragraph. The Depositor shall notify the Trustee of ~~this Section 3.22~~ its intent to provide Additional Form 10-D Disclosure prior to the related Distribution Date. As set forth in ~~order~~ Schedule W hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to ~~comply~~ provide to the 95 Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, will forward to the Trustee in XXXXX-compatible form (with a copy to the Servicer), or in such ~~amended reporting requirements~~ other form as otherwise agreed upon by the Trustee and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the ~~Servicer~~ form and ~~the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal~~ substance of the ~~rating of~~ Additional Form 10-D Disclosure by the fifth (5th) calendar day after the related Distribution Date. The Depositor will be responsible for any ~~outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed~~ reasonable fees and expenses incurred by the Trustee ~~on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into~~ in connection with including any ~~amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or~~ Additional Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports D Disclosure on Form 10-~~K and 10-~~D ~~as required~~ pursuant to this ~~Section 3.22 and the parties hereto shall again have the obligations set forth in this Section~~paragraph. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Specialty Underwriting & Residential Finance Trust, Series 2006-Bc2)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Seller or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, a duly authorized representative of the Depositor 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 Trustee and the Trustee shall file such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T,~~ with (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within 5 calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee no in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the 8th calendar day after the distribution date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor for review by the 9th calendar day after the Distribution Date. No later than ~~the first Business Day immediately following~~ 2 business days after receipt of a final copy after the related Distribution Date, the Depositor shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. ~~Prior~~ Unless the Depositor shall have received notice from the Trustee to ~~Mxxxx 00~~the contrary, ~~0000~~ the Trustee will be deemed to have represented to the Depositor that the monthly statement has been properly prepared by the Trustee and the Depositor may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (~~xxx~~because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. the Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. (A) the registered public accounting firm attestation report for the Servicer and each Subservicer, as described in Section 3.18 of the Agreement, and (B) if any registered public accounting firm attestation report described in the Section 3.18 of the Agreement identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report 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 in the form attached hereto as Exhibit T, executed by the Depositor. 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 following paragraph and the Trustee 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 in Schedule Z hereto, no later than March 15 of each year that the Issuing Entity is subject to the Exchange Act reporting requirements, commencing in 2007, (i) certain parties to the transaction shall be required to provide to the Depositor, to the extent known, any Additional Form 10-K Disclosure, if applicable, ~~prior~~ and (ii) the Depositor shall, to ~~March 31~~ the extent it deems necessary, forward to the Trustee in XXXXX-compatible form, or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of ~~each subsequent year) (~~the “Additional Form 10-K ~~Filing Deadline”),~~ Disclosure by March 15. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee ~~shall, on behalf of the Trust and~~ in ~~accordance~~ connection with ~~industry standards, prepare and file with the Securities and Exchange Commission via EXXXX a~~ including any Additional Form 10-K ~~with respect~~ Disclosure on Form 10-K pursuant to ~~the Trust Fund~~this paragraph. ~~To facilitate the Trustee’s preparation of~~ After preparing the Form 10-K, the Trustee shall ~~provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to~~ forward electronically a draft copy of the Form 10-K ~~Filing Deadline and~~ to the Depositor ~~shall review such template and provide to the Trustee, no~~ for review. No later than ~~thirty (30) days prior to~~ 5:00pm Eastern Time on the 3rd Business Day following receipt of a final copy of the Form 10-K ~~Filing Deadline, any comments~~ 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 and the Trustee shall file such Form 10-K ~~template~~by March 30th. As If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Trustee will follow the procedures set forth in the Agreement. After filing with the Commission, the Trustee will, pursuant to the Agreement, make available on ~~Exhibit U~~its internet website a final executed copy of each Form 10-K. the Trustee shall have no liability with respect to any failure to properly prepare, execute or file such Form 10-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-K on a timely basis. Each Form 10-K shall include ~~as exhibits, each annual statement of compliance required to~~ a certification (the "Xxxxxxxx-Xxxxx Certification") which shall be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the ~~case of the Trustee’s Assessment of Compliance) and such other information~~ form attached hereto as ~~is required by Regulation AB.~~ Exhibit T. The ~~Servicer~~ Depositor will cause its senior officer in charge of securitization to execute the ~~certification, in the form attached hereto as Exhibit O-1 (the “Form 10~~Xxxxxxxx-~~K Certification”)~~ Xxxxx Certification required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee ~~shall file~~ by March 15 of each year in which the ~~same with the Securities and Exchange Commission prior~~ Issuing Entity is subject to the ~~Form 10-K Filing Deadline~~reporting requirements of the Exchange Act. In connection therewith, each of the Trustee and the Servicer shall sign ~~a certification~~ an Officer's Certificate (in the form attached hereto as Exhibit ~~O-2~~K and Exhibit L, respectively) for the benefit of the Depositor and ~~the Servicer and their~~ its officers, directors and ~~affiliates~~ Affiliates regarding certain aspects of the ~~Form 10~~Xxxxxxxx-~~K Certification (the “Trustee’s~~ Xxxxx Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to ~~the Form 10-K Filing Deadline~~March 30, the Trustee shall, on behalf of the ~~Trust~~Issuing Entity, file a Form 12B-25 and one or more amended Form 10-Ks Ks, to the extent such amendments are accepted by the Exchange Act, to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the ~~Securities and Exchange~~ Commission, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form 15 Suspension Notification with respect to the ~~Trust Fund~~Issuing Entity, if applicable. The Servicer agrees to furnish promptly to the ~~Trustee promptly~~Trustee, from time to time upon request, such further information, ~~reports~~ reports, and financial statements within its control related to this Agreement and the Mortgage Loans as ~~the Trustee~~ is reasonably ~~deems appropriate~~ necessary to prepare and file all necessary reports with the ~~Securities and Exchange~~ Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the ~~Securities and Exchange~~ Commission other than those specified in this section and the Servicer shall execute any and all Form ~~10-Ks and the Depositor shall execute any and all Form~~ 8-Ks and 10-Ds Ks required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section ~~3.22~~3.20, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section ~~3.22~~ 3.20 in order to comply with such amended reporting requirements and such amendment of this Section ~~3.22~~3.20. Any such amendment shall be made in accordance with ~~the first paragraph of~~ Section ~~11.01~~ 10.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in ~~the reduction of~~ a change in the reports filed by the Trustee on behalf of the ~~Trust~~ Issuing Entity under the Exchange Act. Notwithstanding the foregoing, ~~none of~~ the Depositor, the Servicer and the Trustee shall not be obligated to enter into any amendment pursuant to this Section ~~3.22~~ 3.20 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) . The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section ~~3.22~~3.20. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Opt1)

Periodic Filings. (a) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction~~ (each such event, a "Reportable Event"), and ~~expense of the Depositor, provided, that, as set forth on Exhibit S,~~ if requested by the Depositor, the ~~Seller or~~ Securities Administrator shall prepare and file on behalf of the ~~Servicer shall have timely notified the Trustee of an item reportable on~~ Issuing Entity a ~~Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such~~ Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent~~ that ~~a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify~~ the Depositor ~~of such event. The Trustee~~ shall ~~not be responsible for determining what information is required to be filed on a~~ file the initial Form 8-K in connection with the ~~transactions contemplated~~ 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 (other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported by the parties set forth on Exhibit Q-3 to the Depositor and the Securities Administrator and directed and approved by the Depositor, 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. (b) For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (A) each party listed on Exhibit Q-3 hereto shall use commercially reasonable best efforts to provide immediate notice to the Master Servicer, the Securities Administrator and the Depositor, by fax and by phone or by e- mail and by phone, (B) each such party shall be required to provide to the Securities Administrator and the Depositor, to the extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information if applicable, together with the form set forth on Exhibit O (the "Additional Disclosure Notification") by the close of business New York City time on the 2nd Business Day following the occurrence of such Reportable Event and (C) the Depositor, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities Administrator has no duty under this Agreement to monitor or ~~what events~~ enforce the performance by the parties listed on Exhibit Q-3 of their duties under this paragraph or proactively solicit or procure from such parties any 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. (c) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a copy of the Form 8-K to the Depositor. Promptly, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall ~~cause~~ 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 receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 8-K, 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 process for execution and filing of the Form 8-K. A duly authorized representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K ~~to be required to~~ cannot be filed ~~and shall not be liable for any late filing of~~ 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 3.18(n). (d) Promptly (but no later than one 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 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 its duties under this Section 3.18 related to the timely preparation, execution and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event~~ performance of their duties under this Section 3.18. The Depositor acknowledges that ~~it does not receive all information, data, signatures~~ the performance by the Master Servicer and ~~exhibits required to be provided or filed on or prior~~ the Securities Administrator of its duties under this Section 3.18 related to the ~~second Business Day prior~~ timely preparation, execution and filing of Form 8-K is also contingent upon the Servicers, the Custodian and any Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of any necessary Form 8-K Disclosure Information pursuant to the related Servicing Agreements, the Custodial Agreement or any other applicable ~~filing deadline~~agreement. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage or claim arising out of or 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 timely basis, any information from any other party hereto or any Servicer, Custodian or Servicing Function Participant needed to prepare, arrange for execution or file such Form 8-K. (e) Within 15 fifteen (15) days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the ~~Trustee~~ Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ the Electronic Data Gathering and Retrieval System (XXXXX), a Form 10-K D with ~~respect~~ a copy of the Monthly Statement for such Distribution Date as an exhibit thereto. Any disclosure in addition to the ~~Trust Fund. To facilitate the Trustee’s preparation of the~~ Monthly Statement that is required to be included on Form 10-~~K, the Trustee shall provide to the Depositor its proposed~~ D ("Additional Form 10-~~K template no later than forty-five (45~~D Disclosure") ~~days prior to~~ shall be reported by the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required~~ Q-1 to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the ~~Servicer~~ Securities Administrator and ~~their officers, directors~~ directed and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received approved by the ~~Trustee prior~~ Depositor pursuant to the ~~Form 10-K Filing Deadline~~following paragraph, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and ~~interpretations of~~ the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect Administrator will have no duty or liability for any failure hereunder to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to determine or prepare ~~and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each~~ any Additional Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party Disclosure except as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in ~~Section 4.06(a) hereof~~the next paragraph. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations As set forth in ~~paragraphs (a) and (b) of this Section shall only apply with respect to periods~~ Exhibit Q-1 hereto, for ~~which reports are required to be filed with respect to~~ so long as the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee~~ Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the ~~Trustee~~related Distribution Date (i) each party listed on Exhibit Q-1 hereto shall be required to provide to the Depositor and the Securities Administrator, ~~solely at~~ to the ~~Depositor’s prior written direction~~ extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and ~~expense~~such party, ~~shall recommence preparing~~ the form and ~~filing reports~~ substance of any Additional Form 10-D Disclosure 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 Additional Form 10-D Disclosure on Form 10-~~K and 10-D as required pursuant~~ D. The Securities Administrator has no duty under this Agreement to ~~this Section 3.22 and~~ monitor or enforce the performance by the parties ~~hereto shall again have the obligations set forth in~~ listed on Exhibit Q-1 of their duties under this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of paragraph or proactively solicit or procure from such parties any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D Disclosure Information. The Depositor will be responsible for any reasonable fees and expenses incurred by the Securities Administrator in connection with ~~respect~~ including any Additional Form 10-D Disclosure on Form 10-D pursuant to ~~the Trust~~this paragraph. (jg) ~~For so long as reports are required to be filed with~~ After preparing the Form 10-D, the Securities ~~and Exchange Commission under~~ Administrator shall, upon request, forward electronically a copy of the ~~Exchange Act with respect~~ Form 10-D to the ~~Trust~~Depositor (provided that such Form 10-D includes any Additional Form 10-D Disclosure). Within two Business Days after receipt of such copy, but no later than the 12th calendar day after the Distribution Date, the Depositor shall notify the ~~Servicer~~ Securities Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. In the absence of receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 10-D, the Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the ~~Trustee~~ Securities Administrator may proceed with the process for execution and filing of the Form 10-D. A duly authorized representative of the Master Servicer shall sign each 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 ~~writing within 10 days following any Distribution Date as to whether~~ Section 3.18(n). Promptly (but not later than one 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-D prepared and filed by the Securities Administrator. Form 10-D requires the registrant to indicate (by checking "yes" or "no") that it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the ~~Securities~~ Exchange Act ~~of 1934~~ during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days~~. Notwithstanding~~ ." The Depositor hereby represents to the ~~foregoing, unless otherwise indicated in writing by~~ Securities Administrator that the Depositor ~~within~~ has filed all such ~~10 day-period of time,~~ required reports during the ~~Depositor shall be deemed~~ preceding 12 months and that it has been subject to ~~have notified~~ such filing requirement for the ~~Servicer and the Trustee in the affirmative as to clauses (1) and (2) above~~past 90 days. The Depositor shall ~~indemnify and hold harmless each~~ 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-D, if the answer to the questions should be "no." The Securities Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such Form 10-D. The parties to this Agreement acknowledge that the performance by the Master Servicer and the ~~Trustee~~Securities Administrator of its respective duties under this Section 3.18 related to the timely preparation, execution and ~~officers~~filing of Form 10-D is contingent upon the other parties hereto strictly observing all applicable deadlines in the performance of their duties under this Section 3.18. The Depositor acknowledges that the performance by the Master Servicer and the Securities Administrator of its duties under this Section 3.18 related to the timely preparation, ~~directors~~ execution and ~~Affiliates~~ filing of ~~each~~Form 10-D is also contingent upon the Servicers, ~~from~~ the Custodian and ~~against~~ any ~~losses~~Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this Agreement in the delivery to the Securities Administrator of any necessary Additional Form 10-D Disclosure pursuant to the related Servicing Agreements, ~~damages~~the Custodial Agreement or any other applicable agreement. Neither the Master Servicer nor the Securities Administrator will have any liability for any loss, ~~penalties~~expense, ~~fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses~~ damage or claim arising out of ~~the Depositor’s~~ or with respect to any failure to ~~provide~~ properly prepare, execute and/or timely file such Form 10-D resulting from the ~~accurate~~ Securities Administrator's inability or failure to obtain or receive any information ~~required pursuant~~ needed to ~~this Section 3.22(j)~~prepare, ~~other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out~~ arrange for execution or file such Form 10-D on a timely basis. (h) On or prior to the 90th calendar day after the end of the ~~Servicer’s~~ fiscal year for the Issuing Entity or such earlier date as may be required by the ~~Trustee’s breach~~ Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal year for the Issuing Entity ends on December 31st of ~~its respective obligations under~~ each year) commencing in March 2008, the Securities Administrator shall, on behalf of the Issuing Entity and in accordance with industry standards, prepare and file with the Commission via XXXXX a Form 10-K with respect to the Issuing Entity. Such Form 10-K shall include the following items, in each case, as applicable, to the extent they have been delivered to the Securities Administrator within the applicable time frames set forth in this Agreement~~. If~~ , the ~~indemnification provided~~ related Servicing Agreements and Custodial Agreement: (i) an annual compliance statement for ~~herein is unavailable or insufficient to hold harmless~~ the ~~Servicer~~ Master Servicer, each Servicer, the Securities Administrator and any Servicing Function Participant engaged by any such party or the Trustee (together with the Custodian, each a "Reporting Servicer"), as described in Section 3.16 of this Agreement, the related Servicing Agreement and the Custodial Agreement; provided, however, that the Securities Administrator, at its ~~respective officers~~discretion, ~~directors and Affiliates, then~~ may omit from the Form 10-K any annual compliance statement that is not required to be filed with such Form 10-K pursuant to Regulation AB; (ii)(A) the annual reports on assessment of compliance with Servicing Criteria for each Reporting Servicer (unless the Depositor ~~shall contribute to~~ has determined that such compliance statement is not required by Regulation AB), as described in Section 3.17 of this Agreement, the ~~amount paid or payable by~~ related Servicing Agreement and the Custodial Agreement, and (B) if any Reporting Servicer's report on assessment of compliance with Servicing Criteria described in Section 3.17 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any Reporting Servicer's report on assessment of compliance with Servicing Criteria described in Section 3.17 of this Agreement 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; provided, however, that the ~~Trustee~~Securities Administrator, as at its discretion, may omit from the ~~case may be, its respective officers, directors~~ Form 10-K any assessment of compliance or ~~Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates~~ attestation report described in clause (iii) below that is not required to be filed with such ~~proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.~~Form

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Af1)

Periodic Filings. ~~(a) The Trustee will prepare and file Current Reports~~ As set forth on Schedule X hereto, for so long as the Issuing Entity is subject to the Exchange Act reporting requirements, no later than the end of business on the 2nd Business Day after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction and expense of the Depositor, provided, that, as set forth on Exhibit S,~~ (a "reportable event") (i) the Depositor, the ~~Seller~~ Sponsor or the Servicer shall have timely notified the Trustee of an item reportable on a Form 8-K ~~and~~ (unless such item is specific to the Trustee, in which case the Trustee will be deemed to have notice), (ii) shall have delivered to the ~~Trustee no later than three Business Days prior to the filing deadline for such Form 8-K~~Trustee, all information, data, and exhibits required to be provided or filed with such Form 8-K in ~~electronic~~ a word format agreed upon by the Trustee and Depositor, Sponsor or ~~other such other format reasonably acceptable~~ Servicer and (iii) the Depositor or the Trustee, to the ~~Trustee. To~~ extent the ~~extent that a Responsible Officer of the Trustee has actual knowledge of an event relating~~ reportable item pertains to ~~Items 3.03~~such party, ~~6.02, 6.03 or 6.04 of Form 8-K, the Trustee~~ shall notify the ~~Depositor of such event~~Servicer thereof by telephone. The Trustee shall not be responsible for determining what information is required to be filed on a Form 8-K in connection with the transactions contemplated by this Agreement (unless such information is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer in making such a determination) or what events shall cause a Form 8-K to be required to be filed (unless such event is specific to the Trustee, in which case the Trustee will be responsible for consulting with the Depositor or Servicer before causing such Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K in the event that it does not receive all information, ~~data, signatures~~ data and exhibits required to be provided or filed on or prior to the second Business Day prior to the applicable filing ~~deadline~~deadline and with respect to signatures, by noon, New York City time, on the fourth Business Day after the reportable event. After preparing the Form 8-K on behalf of the Depositor, the Trustee shall, if required, forward electronically a draft copy of the Form 8-K to the Depositor and the Servicer for review. No later than one and one-half Business Days after receiving a final copy of the Form 8-K from the Trustee, unless the Servicer has received from the Depositor a notice to the contrary, a duly authorized representative of the 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 Trustee and the Trustee shall file such Form 8-K; provided that the Depositor has notified the Trustee that it approves of the form and substance of such 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 Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will, pursuant to this Agreement, make available on its internet website a final executed copy of each Form 8-K. The Trustee will have no obligation to prepare, execute or file such Form 8-K or any liability with respect to any failure to properly prepare, execute or file such Form 8-K resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 8-K within the time frames required by this paragraph, not resulting from its own negligence, bad faith or willful misconduct. Within 15 fifteen (15) days after each Distribution Date, the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, file with the ~~Securities and Exchange~~ Commission via the Electronic Data -103- Gathering and Retrieval System (~~“EXXXX”~~XXXXX), a Form 10-D ~~(or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1)~~ with a copy of the report to the Certificateholders for such Distribution Date as an exhibit ~~thereto and (2) such~~ thereto. Any other information provided to the Trustee by the Servicer or Depositor to be included in Form 10-D shall be determined and prepared by and at the direction of the Depositor pursuant to the following paragraph and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any additional information on Form 10-D ("Additional Form 10-D Disclosure") as ~~identified~~ set forth in the next paragraph. As set forth in Schedule Y hereto, within five (5) calendar days after the related Distribution Date (i) the parties hereto, as applicable, will be required to provide to the Depositor and the Servicer, to the extent known to such party, any Additional Form 10-D Disclosure (including any breaches of pool asset representations and warranties or transaction covenants of which the party has written notice and which has not been included on ~~Exhibit T; provided that such information is provided~~ the monthly distribution report for the period), if applicable, and (ii) the Depositor, to the extent it deems necessary, forward to the Trustee ~~no later than~~ in XXXXX-compatible form (or such other word processing format that is XXXXX-compatible) (with a copy to the ~~first Business Day immediately following~~ Servicer), or in such other form as otherwise agreed upon by the Trustee and the Depositor, the form and substance of the Additional Form 10-D Disclosure by the eighth (8th) calendar day after the related Distribution Date. The Depositor will be responsible for any reasonable fees and expenses incurred by the Trustee in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. After preparing the Form 10-D at the direction of the Depositor, the Trustee will forward electronically a draft copy of the Form 10-D to the Depositor and the Servicer for review by the 9th calendar day after the Distribution Date. No later than two (2) Business Days after receipt of a final copy after the related Distribution Date, unless the Servicer receives a notice from the Trustee as described below or a notice from the Depositor that it has discovered a material deficiency or irregularity with respect to such Form 10-D, a duly authorized representative of the Servicer shall sign the Form 10-D and return an electronic or fax copy of such Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee and the Trustee shall file such Form 10-D within two business days. Unless the Servicer shall have received notice from the Trustee to the contrary, the Trustee will be deemed to have represented to the Servicer that the monthly statement has been properly prepared by the Trustee and the Servicer may rely upon the accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because of notice from the Trustee per the previous sentence or otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee will follow the procedures set forth in this Agreement. After filing with the Commission, the Trustee will make available on its internet website a final executed copy of each Form 10-D. The Trustee will have no liability with respect to any failure to properly prepare, execute or file such Form 10-D resulting from the Trustee's inability or failure to obtain or receive any information needed to prepare, arrange for execution or file such Form 10-D on a timely basis. Prior to ~~Mxxxx~~ Xxxxx 00, 0000 (xxx, if applicable, prior to ~~March 31~~ the ninetieth (90th) calendar day after the end of ~~each subsequent year) (~~the ~~“Form 10-K Filing Deadline”~~fiscal year for the Issuing Entity), the Trustee shall, on behalf of the ~~Trust~~ Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ XXXXX a Form ~~10-K~~ 10 -K with respect to the ~~Trust Fund~~Issuing Entity. To facilitate the Trustee’s preparation of the Form 10-K, the Trustee shall provide to the Depositor its proposed Form 10-K template no later than forty-five (45) days prior to the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As set forth on Exhibit U, such Such Form 10-K shall include as exhibits, each annual statement of compliance required to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20the following items, in each case to the extent they have been ~~timely~~ delivered to the Trustee within the applicable time frames set forth in this Agreement, (or i) an annual compliance statement for the ~~Depositor~~Servicer and each Subservicer, as described in ~~the case~~ Section 3.17 of the ~~Trustee’s~~ Agreement, (ii)(A) the annual reports on Assessment of ~~Compliance)~~ Compliance with Servicing Criteria for each Servicer, Subservicer and Subcontractor (unless the Depositor has determined that such ~~other information as~~ compliance statement is not required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934), as ~~amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (~~described in ~~the form attached hereto as Exhibit O-2) for the benefit~~ Section 3.18 of the Depositor and the Servicer and their officers, directors and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Trustee prior to the Form 10-K Filing Deadline, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and interpretations of the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in Section 4.06(a) hereof. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations set forth in paragraphs (a) and (b) of this Section shall only apply with respect to periods for which reports are required to be filed with respect to the Trust under the Exchange Act. 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 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. (i) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify the Depositor and the Trustee in writing of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Form 10-D with respect to the Trust. (j) For so long as reports are required to be filed with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2B) ~~has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated~~ if any Reporting Servicer's report on Assessment of Compliance with Servicing Criteria described in writing by the Depositor within such 10 day-period of time, the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative as to clauses (1) and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Servicer, or the Trustee, as the case may be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Servicer, or the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.-104-

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-2)

Periodic Filings. 100 (a) ~~The Trustee will prepare and file Current Reports~~ Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K ~~in respect of the Trust at the direction~~ (each such event, a "Reportable Event"), and ~~expense of the Depositor, provided, that, as set forth on Exhibit S,~~ if requested by the Depositor, the ~~Seller or~~ Securities Administrator shall prepare and file on behalf of the ~~Servicer shall have timely notified the Trustee of an item reportable on~~ Issuing Entity a ~~Form 8-K and shall have delivered to the Trustee no later than three Business Days prior to the filing deadline for such~~ Form 8-K, ~~all information~~as required by the Exchange Act, ~~data, and exhibits required to be~~ provided ~~or filed with such Form 8-K in electronic or other such other format reasonably acceptable to the Trustee. To the extent~~ that ~~a Responsible Officer of the Trustee has actual knowledge of an event relating to Items 3.03, 6.02, 6.03 or 6.04 of Form 8-K, the Trustee shall notify~~ the Depositor ~~of such event. The Trustee~~ shall ~~not be responsible for determining what information is required to be filed on a~~ file the initial Form 8-K in connection with the ~~transactions contemplated~~ 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 (other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported by the parties set forth on Exhibit W to the Depositor and the Securities Administrator and directed and approved by the Depositor, 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. (b) For so long as the Issuing Entity is subject to the reporting requirements of the Exchange Act, following the occurrence of a Reportable Event (A) each party listed on Exhibit W hereto shall be required to provide to the Securities Administrator and the Depositor, to the extent known, in XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and such party, the form and substance of any Form 8-K Disclosure Information if applicable, together with the form set forth on Exhibit U (the "Additional Disclosure Notification") by the close of business New York City time on the 2nd Business Day following the occurrence of such Reportable Event and (B) the Depositor, shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities Administrator has no duty under this Agreement to monitor or ~~what events~~ enforce the performance by the parties listed on Exhibit W of their duties under this paragraph or proactively solicit or procure from such parties any 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. (c) After preparing the Form 8-K, the Securities Administrator shall, upon request, forward electronically a copy of the Form 8-K to the Depositor for review. Promptly, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall ~~cause~~ 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 receipt of any written changes or approval, or if the Depositor does not request a copy of a Form 8-K, 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 representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K ~~to be required to~~ cannot be filed ~~and shall not be liable for any late filing of~~ 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 9.21(n). (d) Promptly (but no later than one 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 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 its duties under this Section 9.21 related to the timely preparation, execution and filing of Form 8-K is contingent upon the other parties hereto strictly observing all applicable deadlines in the ~~event~~ performance of their duties under this Section 9.21. The Depositor acknowledges that ~~it does not receive all information, data, signatures~~ the performance by the Master Servicer and ~~exhibits required to be provided or filed on or prior~~ the Securities Administrator of its duties under this Section 9.21 related to the ~~second Business Day prior~~ timely preparation, execution and filing of Form 8-K is also contingent upon the Servicer, the Custodian and any Servicing Function Participant strictly observing deadlines no later than those set forth in this paragraph that are applicable to the parties to this 101 Agreement in the delivery to the Securities Administrator of any necessary Form 8-K Disclosure Information pursuant to the Custodial Agreement or any other applicable ~~filing deadline~~agreement. Neither the Master Servicer nor the Securities Administrator shall have any liability for any loss, expense, damage or claim arising out of or 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 timely basis, any information from any other party hereto or the Servicer, Custodian or Servicing Function Participant needed to prepare, arrange for execution or file such Form 8-K. (e) Within 15 fifteen days after each Distribution ~~Date~~Date (subject to permitted extensions under the Exchange Act), the ~~Trustee~~ Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via the Electronic Data Gathering and Retrieval System (“EXXXX”), a Form 10-D (or other comparable form containing the same or comparable information or other information mutually agreed upon) with, as set forth on Exhibit T, (1) a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto and (2) such other information provided to the Trustee as identified on Exhibit T; provided that such information is provided to the Trustee no later than the first Business Day immediately following the related Distribution Date. Prior to Mxxxx 00, 0000 (xxx, if applicable, prior to March 31 of each subsequent year) (the “Form 10-K Filing Deadline”), the Trustee shall, on behalf of the Trust Issuing Entity and in accordance with industry standards, prepare and file with the ~~Securities and Exchange~~ Commission via ~~EXXXX~~ the Electronic Data Gathering and Retrieval System (XXXXX), a Form 10-K D with ~~respect~~ (1) a copy of the Monthly Statement for such Distribution Date as an exhibit thereto. Any disclosure in addition to the ~~Trust Fund. To facilitate the Trustee’s preparation of the~~ Monthly Statement that is required to be included on Form 10-~~K, the Trustee shall provide to the Depositor its proposed~~ D ("Additional Form 10-~~K template no later than forty-five (45~~D Disclosure") ~~days prior to~~ shall be reported by the Form 10-K Filing Deadline and the Depositor shall review such template and provide to the Trustee, no later than thirty (30) days prior to the Form 10-K Filing Deadline, any comments to such Form 10-K template. As parties set forth on Exhibit ~~U, such Form 10-K shall include as exhibits, each annual statement of compliance required~~ X to be delivered pursuant to Section 3.19 and each Accountant’s Attestation and Assessment of Compliance required to be furnished pursuant to Section 3.20, in each case to the extent they have been timely delivered to the Trustee (or the Depositor, in the case of the Trustee’s Assessment of Compliance) and such other information as is required by Regulation AB. The Servicer will cause its senior officer in charge of securitization to execute the certification, in the form attached hereto as Exhibit O-1 (the “Form 10-K Certification”) required pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended, and the Trustee shall file the same with the Securities and Exchange Commission prior to the Form 10-K Filing Deadline. In connection therewith, the Trustee shall sign a certification (in the form attached hereto as Exhibit O-2) for the benefit of the Depositor and the ~~Servicer~~ Securities Administrator and ~~their officers, directors~~ directed and affiliates regarding certain aspects of the Form 10-K Certification (the “Trustee’s Certification”). To the extent any information or exhibits required to be included in the Form 10-K are not timely received approved by the ~~Trustee prior~~ Depositor pursuant to the ~~Form 10-K Filing Deadline~~following paragraph, the Trustee shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Trustee. Promptly following the first date legally permissible under applicable regulations and ~~interpretations of~~ the Securities and Exchange Commission, the Trustee shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission via EXXXX a Form 15 Suspension Notification with respect Administrator will have no duty or liability for any failure hereunder to the Trust Fund, if applicable. The Servicer agrees to furnish to the Trustee promptly, from time to time upon request, such further information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to determine or prepare ~~and file all necessary reports with the Securities and Exchange Commission. Upon the preparation of each~~ any Additional Form 10-D filing by the Trustee, such Form 10-D filing shall be submitted to the Depositor. Upon receipt of written notice to the Trustee via electronic mail to mxxxxxx.xxxxxxxx@xxxxxx.xxx, with a copy to sxxxxx.xxxxxxxxxxxxxx@xxxxxx.xxx, and from the Depositor that the Form 10-D is ready for filing, the Trustee shall attach to any Form 10-D the signature page of the Depositor and submit such Form 10-D for filing with the Securities and Exchange Commission. The Trustee shall provide a copy of each Form 10-D and Form 8-K to each of the Servicer and the Depositor. The Trustee shall have no responsibility to file any items with the Securities and Exchange Commission other than those specified in this section and the Servicer shall execute any and all Form 10-Ks and the Depositor shall execute any and all Form 8-Ks and 10-Ds required hereunder. All materials provided to the Trustee relating to the Form 8-Ks, 10-Ds and 10-Ks required hereunder shall be provided in electronic format compatible with the EXXXX system, which may be in Microsoft Word. To the extent that (i) no notice is provided to the Trustee of events or information reportable in any Form 8-K, (ii) no notice is provided of events or information reportable in any Form 10-D by the first Business Day after the related Distribution Date or (iii) no notice is provided of events or information reportable in any Form 10-K by March 15 of each year, in each case the Trustee shall without further notice conclude that there is no event or information to be reported. Notwithstanding anything set forth herein, the Servicer will not be responsible for the filing of any Form 8-K or Form 10-D filed on behalf of the Trust (including but not limited to the timing of any filing or completeness of such filings) and will not be responsible for determining whether the content of any Form 8-K or Form 10-D filed on behalf of the Trust is accurate or correct (unless such information is contained in the Remittance Report or otherwise specific to the Servicer, in which case the Servicer will be responsible for making such a determination). (b) The Trustee shall, subject to Sections 8.01 and 8.02, indemnify and hold harmless the Depositor, the Servicer and any director, officer, employee or agent of the Depositor and the Servicer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (other than punitive damages) that any of them may sustain in any way related to (x) a breach of its obligation or the failure of the Trustee to perform any of its obligations pursuant to Section 3.22(a), (y) or Trustee’s negligence, bad faith or willful misconduct in connection therewith or any inaccuracy in the Trustee’s Certification and (z) any inaccurate information provided by the Trustee (to the extent such inaccuracy is not due to inaccurate information provided to the Trustee by the Servicer or any other party) that is contained in any Form 10-D filed with the SEC, other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs, fees and expenses arising out of the Servicer’s or any other party’s breach of its obligations under this Agreement or any other related agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless any indemnified party, then the Trustee shall contribute to the amount paid or payable by the indemnified party Disclosure except as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Trustee on the other. (c) The Servicer shall indemnify and hold harmless the Trustee and 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 the Servicer’s failure to sign and deliver either the certification or the Form 10-K within the time frame provided in Section 3.22(a), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Trustee’s breach of its obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Trustee and its officers, directors and Affiliates, then the Servicer shall contribute to the amount paid or payable by the Trustee, its officers, directors or Affiliates as a result of the losses, claims, damages or liabilities of the Trustee, its officers, directors or Affiliates in such proportion as is appropriate to reflect the relative fault of the Trustee and its officers, directors and Affiliates on the one hand and the Servicer on the other. (d) If the Securities and Exchange Commission issues additional interpretative guidance or promulgates additional rules or regulations with respect to Regulation AB or otherwise, or if other changes in applicable law occur, that would require the reporting arrangements, or the allocation of responsibilities with respect thereto, described in this Section 3.22, to be conducted differently than as described, the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend the provisions of this Section 3.22 in order to comply with such amended reporting requirements and such amendment of this Section 3.22. Any such amendment shall be made in accordance with the first paragraph of Section 11.01 without the consent of the Certificateholders and without the requirement to deliver notice in writing to the Depositor, the Servicer and the Trustee from the Rating Agencies that such action will not result in the reduction or withdrawal of the rating of any outstanding Class of Certificates with respect to which it is a Rating Agency. Such amendment may result in the reduction of the reports filed by the Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the foregoing, none of the Depositor, the Servicer and the Trustee shall be obligated to enter into any amendment pursuant to this Section 3.22 that adversely affects its obligations and immunities under this Agreement. (e) In filing any Monthly Form 8-K or Form 10-K, the Trustee shall not undertake any analysis of, and shall have no responsibility for, any financial information, accountant’s report, certification or other matter contained therein, except for computations performed by the Trustee and reflected in the statement set forth in ~~Section 4.06(a) hereof~~the next paragraph. (f) The Depositor, the Servicer and the Trustee agree to use their good faith efforts to cooperate in complying with the requirements of this Section 3.22. (g) Upon any filing with the Securities and Exchange Commission, the Trustee shall promptly deliver to the Depositor and the Servicer a copy of any such executed report, statement or information. (h) The obligations As set forth in ~~paragraphs (a) and (b) of this Section shall only apply with respect to periods~~ Exhibit X hereto, for ~~which reports are required to be filed with respect to~~ so long as the ~~Trust under the Exchange Act. Prior to January 30 of the first year in which the Trustee~~ Issuing Entity is able to do so under applicable law, the Trustee shall file a Form 15 Suspension Notification with respect to the Trust. At any time after the filing of a Form 15 Suspension Notification, if the number of Certificateholders of record exceeds the number set forth in Section 15(d) of the Exchange Act or the regulations promulgated pursuant thereto which would cause the Trust to again become subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the Trustee, solely at the Depositor’s prior written direction and expense, shall recommence preparing and filing reports on Form 10-K and 10-D as required pursuant to this Section 3.22 and the parties hereto shall again have the obligations set forth in this Section. related Distribution Date (i) ~~For so long as reports are~~ each party listed on Exhibit X hereto shall be required to ~~be filed with the Securities and Exchange Commission under the Exchange Act with respect~~ provide to ~~the Trust, each of the Depositor, the Trustee, the Servicer and the Seller shall notify~~ the Depositor and the ~~Trustee~~ Securities Administrator, to the extent known, in ~~writing~~ XXXXX-compatible format or in such other format as agreed upon by the Securities Administrator and such party, the form and substance of any litigation or proceeding that would be material to Certificateholders pending against such notifying person (or, in the case of the Servicer, against the Servicer or any Subservicer engaged by it), or, with respect to the Depositor, the Trustee and the Seller, any affiliations or relationships that develop following the Closing Date between such notifying person (or, in the case of the Servicer, between the Servicer or any Subservicer engaged by it) and any other party hereto or an Originator, that may have to be reported on a Form 8-K, Form 10-K or Additional Form 10-D ~~with respect to the Trust. (j) For so long as reports are required to be filed~~ Disclosure if applicable together with the Securities and Exchange Commission under the Exchange Act with respect to the Trust, the Depositor shall notify the Servicer and the Trustee in writing within 10 days following any Distribution Date as to whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports)Additional Disclosure Notification, and (2ii) ~~has been subject to such filing requirements for the past 90 days. Notwithstanding the foregoing, unless otherwise indicated in writing by~~ the Depositor ~~within such 10 day-period of time~~will approve, ~~the Depositor shall be deemed to have notified the Servicer and the Trustee in the affirmative~~ as to ~~clauses (1)~~ form and (2) above. The Depositor shall indemnify and hold harmless each of the Servicer and the Trustee, and officers, directors and Affiliates of each, 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 Depositor’s failure to provide the accurate information required pursuant to this Section 3.22(j), other than any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of the Servicer’s or the Trustee’s breach of its respective obligations under this Agreement. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer or the Trustee and its respective officers, directors and Affiliates, then the Depositor shall contribute to the amount paid or payable by the Servicersubstance, or ~~the Trustee~~disapprove, as the case may be, ~~its respective officers, directors or Affiliates as a result~~ the inclusion of the ~~losses~~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 X of their 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 incurred by the Securities Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. (g) After preparing the Form 10-D, ~~claims~~the Securities Administrator shall, ~~damages or liabilities~~ upon request, forward electronically a copy of the ~~Servicer~~Form 10-D to the Depositor for review (provided that such Form 10-D includes any Additional Form 10-D Disclosure). Within two Business Days after receipt of such copy, but no later than the 12th calendar day after the 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 receipt of any written changes or approval, or if the ~~Trustee~~Depositor does not request a copy of a Form 10-D, as the ~~case~~ Securities Administrator shall be entitled to assume that such Form 10-D is in final form and the Securities Administrator may ~~be, its respective officers, directors or Affiliates in such proportion as is appropriate to reflect~~ proceed with the ~~relative fault~~ execution and filing of the ~~Servicer~~Form 10-D. A duly authorized representative of the Master Servicer shall sign each 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 9.21(n). Promptly (but not later than one 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-D prepared and filed by the Securities Administrator. Form 10-D requires the registrant to indicate (by checking "yes" or ~~the Trustee and its respective officers, directors and Affiliates on the one hand and the Depositor on the other.~~102

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series MLCC 2007-2)

Common use of Periodic Filings Clause in Contracts