Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a) The Depositor shall (or shall engage the Trustee to) on behalf of the Trust, prepare, sign and file with the Commission, within the time period set forth below, copies of the annual reports and of the information, documents, certifications and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act (collectively, "Exchange Act Reports") with respect to the Trust. The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows: (i) Form 8-K, within the time requirement prescribed by Regulation AB and the Exchange Act if the filing of Form 8-K is necessary; (ii) Form 10-D, within the time requirement prescribed by Regulation AB and the Exchange Act; (iii) Form 10-K, within the time requirement prescribed by Regulation AB and the Exchange Act; and (iv) such other reports as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act. (b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that: (i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision; (ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof; (iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and (iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee. (c) The Trustee agrees to provide, at the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee. (d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations. (e) The Depositor shall deliver to the Trustee, which shall then transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to this Section 6.1 if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act. (1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and (2) to the best of such Executive Officer's knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee. (f) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective. (g) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year. (h) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), (i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof. (ii) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates. (iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited. (iv) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates. (v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys. (vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate. (i) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include: (i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. The Administrative Agent, if any, shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement and the related Series Supplement.
(a) The Depositor shall (or shall engage the Trustee to) on behalf of the Trust, prepare, sign and file with the Commission, within the time period set forth below, copies of the annual reports and of the information, documents, certifications and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescriberescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act (collectively, "Exchange Act Reports") with respect to the Trust. The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows:: 49
(i) Form 8-K, within the time requirement prescribed by Regulation AB and the Exchange Act if the filing of Form 8-K is necessary;
(ii) Form 10-D, within the time requirement prescribed by Regulation AB and the Exchange Act;
(iii) Form 10-K, within the time requirement prescribed by Regulation AB and the Exchange Act; and
(iv) such other reports as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx Regxxxxxxx X-X xxxer xxder the Securities Act.
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a6.1(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.50
(c) The Each of the Trustee agrees to and the Administrative Agent (if any) shall provide, at the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee Trustee, within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.; and
(e) The Depositor shall deliver to the Trustee, which shall then Trustee and transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to clauses (i) and (ii) of this Section 6.1 6.1(a), if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
(1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(f) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements statements, as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(g) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(h) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, Agreement shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(i) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a1) The Depositor shall (or shall engage the Trustee to) on behalf of prepare for signature by the Trust, prepare, sign Depositor and file with the Commission, following the execution thereof by the Depositor, within the time period set forth below, copies of the annual reports and of the information, documents, certifications documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act or otherwise required by Regulation AB (collectively, "“Exchange Act Reports"”) with respect to the Trust. The names Depositor will be responsible for any reasonable fees and requirements expenses assessed or incurred by the Trustee in connection with including information not in the forms provided to the Trustee by the Depositor and any fees associated with the filing of such Exchange Act reports.
(2) The names of such Reports and the dates on which they are required to be filed with the Commission are as follows:
(i) Form 8-K, in substantially the form provided by the Depositor to the Trustee, within 15 calendar days after the Closing Date and each Distribution Date, and within the time requirement prescribed advised to the Trustee by Regulation AB and the Exchange Act Depositor if the filing of Form 8-K is necessarynecessary for any other reason;
(ii) Form 10-D, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act15 calendar days after each Distribution Date;
(iii) Form 10-K, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act90 calendar days after December 31 of each year; and
(iv) such other reports Reports as the Depositor requests the Trustee to prepare and file from time to time as may be required pursuant to Section 13 or 15(d) of the Exchange ActAct or as otherwise required by Regulation AB at the expense of the Depositor and in the form provided by the Depositor to the Trustee. Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the SarbanesXxxxxxxx-Oxley Xxxxx Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx XRegulation S-X xxxer K under the Securities Act. The Depositor acknowledges and agrees that the performance of the Trustee’s obligations under this Section 6.1 is in part dependent upon the Depositor providing certain of the relevant information to be included in the applicable reports in a timely fashion and upon one or more officers of the Depositor executing the applicable reports in a timely manner. The Depositor shall reasonably cooperate with the Trustee in connection with the Trustee’s performance of its obligations under this Section 6.1. The Depositor shall designate the financial printer or other entity (the “Report Filer”) (which may be the Depositor) that will be responsible for the processing of the applicable reports and the Depositor shall reimburse the Trustee for the reasonable out of pocket fees of the Financial Filer; provided that, to the extent the Depositor fails to designate the Report Filer, the Trustee shall choose a Financial Filer. Notwithstanding the immediately preceding sentence, the Trustee shall have no liability for the performance of the Financial Filer to the extent any failure of the Financial Filer occurs through no fault of the Trustee. The Trustee shall have no liability with respect to any failure to properly or timely file such periodic reports resulting from or relating to the Trustee’s inability or failure to obtain any information required to be obtained by it not resulting from its own negligence or willful misconduct.
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's ’s Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's ’s supervision;
(ii) to the best of such Executive Officer's ’s knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's ’s knowledge, based on such review, the reports filed pursuant to Section 3.09(a6.1(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's ’s knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's ’s Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Each of the Trustee agrees to and the Administrative Agent (if any) shall provide, at the Depositor's ’s direction and expense, (i) reports on assessments of compliance with servicing criteria applicable to it under the Trust Agreement and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent a registered public accountant sufficient for the Depositor on behalf of the Trustaccounting firm, both in order to satisfy the Trust's ’s obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.
(e) The Depositor shall deliver to the Trustee, which shall then transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to this Section 6.1 if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will be signed Commission or as directed in writing by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
(1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the TrusteeDepositor.
(f) If and only if the Series Supplement provides for the pledge grant of a security interest in the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof Underlying Securities to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(g) If and only if the Series Supplement provides for the pledge grant of a security interest in the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof Underlying Securities to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(h) If and only if the Series Supplement provides for the pledge grant of a security interest in the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof Underlying Securities to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's ’s interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's ’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(i) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's ’s Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a) The Depositor shall (or shall engage the Trustee to) on behalf of the Trust, prepare, sign and file with the Commission, within the time period set forth below, copies of the annual reports and of the information, documents, certifications and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act (collectively, "Exchange Act Reports") with respect to the Trust. The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows:
(i) Form 8-K, within the time requirement prescribed by Regulation AB and the Exchange Act if the filing of Form 8-K is necessary;
(ii) Form 10-D, within the time requirement prescribed by Regulation AB and the Exchange Act;
(iii) Form 10-K, within the time requirement prescribed by Regulation AB and the Exchange Act; and
(iv) such other reports as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a6.1A(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Each of the Trustee agrees to and the Administrative Agent (if any) shall provide, at the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.
(e) The Depositor shall deliver to the Trustee, which shall then transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to this Section 6.1 if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
(1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee."
(f) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(g) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(h) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(i) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a) The Depositor Administrative Agent, if any, shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement and the related Series Supplement. The Trustee shall:
(or shall engage the Trustee toi) on behalf of the Trust, prepare, sign prepare for signature by the Depositor and file with the Commission, following the execution thereof by the Depositor, within the time period set forth below, copies of the annual reports and of the information, documents, certifications documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act (collectively, "Exchange Act Reports") with respect to the Trust. The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows:
(iA) Form 8-K, in substantially the form previously provided by the Depositor to the Trustee, within 15 calendar days after the Closing Date and each Distribution Date, and within the time requirement prescribed advised to the Trustee by Regulation AB and the Exchange Act Depositor if the filing of Form 8-K is necessarynecessary for any other reason;
(ii) Form 10-D, within the time requirement prescribed by Regulation AB and the Exchange Act;
(iiiB) Form 10-K, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act90 calendar days after December 31 of each year; and
(ivC) such other reports Reports as the Depositor requests the Trustee to prepare and file from time to time as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Trustee agrees to provide, at receive from the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.;
(eiii) The receive from the Depositor shall deliver to the Trustee, which shall then and transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to clauses (i) and (ii) of this Section 6.1 6.1(a), if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will be
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the Depositor and will include a certification required by Section 302 principal executive officer, principal financial officer or principal accounting officer of the Sarbanes-Oxley Act Depositor, dated as of 2002, the date set forth in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.Series Supplement for such year, stating that:
(1i) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(fc) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(gd) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(he) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(if) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a1) The Depositor shall (or shall engage the Trustee to) on behalf of prepare for signature by the Trust, prepare, sign Depositor and file with the Commission, following the execution thereof by the Depositor, within the time period set forth below, copies of the annual reports and of the information, documents, certifications documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act or otherwise required by Regulation AB (collectively, "“Exchange Act Reports"”) with respect to the Trust. The names Depositor will be responsible for any reasonable fees and requirements expenses assessed or incurred by the Trustee in connection with including information not in the forms provided to the Trustee by the Depositor and any fees associated with the filing of such Exchange Act reports.
(2) The names of such Reports and the dates on which they are required to be filed with the Commission are as follows:
(i) Form 8-K, in substantially the form provided by the Depositor to the Trustee, within 15 calendar days after the Closing Date and each Distribution Date, and within the time requirement prescribed advised to the Trustee by Regulation AB and the Exchange Act Depositor if the filing of Form 8-K is necessarynecessary for any other reason;
(ii) Form 10-D, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act15 calendar days after each Distribution Date;
(iii) Form 10-K, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act90 calendar days after December 31 of each year; and
(iv) such other reports Reports as the Depositor requests the Trustee to prepare and file from time to time as may be required pursuant to Section 13 or 15(d) of the Exchange ActAct or as otherwise required by Regulation AB at the expense of the Depositor and in the form provided by the Depositor to the Trustee. Each annual report on Form 10-K will be signed by the Depositor and will include a certification required by Section 302 of the SarbanesXxxxxxxx-Oxley Xxxxx Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx XRegulation S-X xxxer K under the Securities Act. The Depositor acknowledges and agrees that the performance of the Trustee’s obligations under this Section 6.1 is in part dependent upon the Depositor providing certain of the relevant information to be included in the applicable reports in a timely fashion and upon one or more officers of the Depositor executing the applicable reports in a timely manner. The Depositor shall reasonably cooperate with the Trustee in connection with the Trustee’s performance of its obligations under this Section 6.1. The Depositor shall designate the financial printer or other entity (the “Report Filer”) (which may be the Depositor) that will be responsible for the processing of the applicable reports and the Depositor shall reimburse the Trustee for the reasonable out of pocket fees of the Financial Filer; provided that, to the extent the Depositor fails to designate the Report Filer, the Trustee shall choose a Financial Filer. Notwithstanding the immediately preceding sentence, the Trustee shall have no liability for the performance of the Financial Filer to the extent any failure of the Financial Filer occurs through no fault of the Trustee. The Trustee shall have no liability with respect to any failure to properly or timely file such periodic reports resulting from or relating to the Trustee’s inability or failure to obtain any information required to be obtained by it not resulting from its own negligence or willful misconduct.
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's ’s Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's ’s supervision;
(ii) to the best of such Executive Officer's ’s knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's ’s knowledge, based on such review, the reports filed pursuant to Section 3.09(a6.1(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's ’s knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's ’s Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Each of the Trustee agrees to and the Administrative Agent (if any) shall provide, at the Depositor's ’s direction and expense, (i) reports on assessments of compliance with servicing criteria applicable to it under the Trust Agreement and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent a registered public accountant sufficient for the Depositor on behalf of the Trustaccounting firm, both in order to satisfy the Trust's ’s obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.
(e) The Depositor shall deliver to the Trustee, which shall then transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to this Section 6.1 if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will be signed Commission or as directed in writing by the Depositor and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
(1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the TrusteeDepositor.
(f) If and only if the Series Supplement provides for the pledge grant of a security interest in the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(g) If and only if the Series Supplement provides for the pledge grant of a security interest in the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(h) If and only if the Series Supplement provides for the pledge grant of a security interest in the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's ’s interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's ’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(i) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's ’s Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a) The Administrative Agent, if any, shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement and the related Series Supplement. The Depositor shall (or shall engage or, if provided in the Trustee torelated Series Supplement, the Administrative Agent) shall:
(1) on behalf of the Trust, prepare, sign prepare for signature by the Depositor and file with the Commission, following the execution thereof by the Depositor, within the time period set forth below, copies of the annual reports and of the information, documents, certifications documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act or otherwise required by Regulation AB (collectively, "Exchange Act “Reports"”) with respect to the Trust. .
(2) The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows:
(i) Form 8-K, in substantially the form previously provided by the Depositor to the Trustee, within 15 calendar days after the Closing Date and each Distribution Date, and within the time requirement prescribed advised to the Trustee by Regulation AB and the Exchange Act Depositor if the filing of Form 8-K is necessarynecessary for any other reason;
(ii) Form 10-D, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act;15 calendar days after each Distribution Date; and
(iii) Form 10-K, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act; and90 calendar days after December 31 of each year;
(iv) such other reports Reports as the Depositor requests the Trustee to prepare and file from time to time as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification Act or as otherwise required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.Regulation AB;
(b3) The Depositor shall deliver to receive from the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Trustee agrees to provide, at the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor Trustee with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.;
(e4) The Depositor shall deliver to the Trustee, which shall then transmit for transmission by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to clauses (1) and (2) of this Section 6.1 6.1(a), if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will . The Trustee acknowledges and agrees that the performance of the Depositor’s (or, if applicable, the Administrative Agent’s) obligations under this Section 6.1 is in part dependent upon the Trustee providing certain of the relevant information to be signed by included in the applicable reports in a timely fashion. The Trustee shall reasonably cooperate with the Depositor (and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002Administrative Agent, if applicable) in connection with the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
Depositor’s (1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledgeor, based on such reviewif applicable, the Depositor has fulfilled all Administrative Agent’s) performance of its obligations under this Agreement throughout Section 6.1.
(b) The Depositor shall deliver to the Trustee if required for filing with the Commission as part of any Form 10-K for a Series, not less often than annually, a certification signed by an Executive Officer who is the senior officer in charge of securitization of the Depositor (within the meaning of Regulation AB), dated as of the date set forth in the Series Supplement for such year, or, if there has been a default in the fulfillment of any such obligation, specifying that contains each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.items required by, and is in form and substance consistent with, Item 601(31) of Regulation S-K.
(fc) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(g) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(h) If and only if the Series Supplement provides for the pledge of the Term Assets to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(i) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Samples: Trust Agreement (Fixed Income Trust for Goldman Sachs Subordinated Notes, Series 2011-1)
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a) The Depositor Administrative Agent, if any, shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement and the related Series Supplement. The Trustee shall:
(or shall engage the Trustee to1) on behalf of the Trust, prepare, sign prepare for signature by the Depositor and file with the Commission, following the execution thereof by the Depositor, within the time period set forth below, copies of the annual reports and of the information, documents, certifications documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act or otherwise required by Regulation AB (collectively, "Exchange Act “Reports"”) with respect to the Trust. .
(2) The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows:
(i) Form 8-K, in substantially the form previously provided by the Depositor to the Trustee, within 15 calendar days after the Closing Date and each Distribution Date, and within the time requirement prescribed advised to the Trustee by Regulation AB and the Exchange Act Depositor if the filing of Form 8-K is necessarynecessary for any other reason;
(ii) Form 10-D, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act;15 calendar days after each Distribution Date; and
(iii) Form 10-K, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act; and90 calendar days after December 31 of each year;
(iv) such other reports Reports as the Depositor requests the Trustee to prepare and file from time to time as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification Act or as otherwise required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.Regulation AB;
(b3) The Depositor shall deliver to the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of receive from the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause (a)(iii) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Trustee agrees to provide, at the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.;
(e4) The receive from the Depositor shall deliver to the Trustee, which shall then and transmit by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to clauses (i) and (ii) of this Section 6.1 6.1(a), if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K . The Depositor acknowledges and agrees that the performance of the Trustee’s obligations under this Section 6.1 is in part dependent upon the Depositor providing certain of the relevant information to be included in the applicable reports in a timely fashion and upon one or more officers of the Depositor executing the applicable reports in a timely manner. The Depositor shall reasonably cooperate with the Trustee in connection with the Trustee’s performance of its obligations under this Section 6.1. The Depositor shall designate the financial printer or other entity (the “Report Filer”) (which may be the Depositor) that will be responsible for the processing of the applicable reports and the Depositor shall reimburse the Trustee for the reasonable out of pocket fees of the Financial Filer; provided that, to the extent the Depositor fails to designate the Report Filer, the Trustee shall choose a Financial Filer. Notwithstanding the immediately preceding sentence, the Trustee shall have no liability for the performance of the Financial Filer to the extent any failure of the Financial Filer occurs through no fault of the Trustee.
(b) The Depositor shall deliver to the Trustee, not less often than annually, an Officer’s Certificate signed by an Executive Officer who is the Depositor and will include a certification required by Section 302 principal executive officer, principal financial officer or principal accounting officer of the Sarbanes-Oxley Act Depositor, dated as of 2002, the date set forth in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.Series Supplement for such year, stating that:
(1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's ’s supervision; and
and (2) to the best of such Executive Officer's ’s knowledge, based on such review, the Depositor has fulfilled all of its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(fc) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(gd) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(he) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's ’s interest in the same, in a manner and under circumstances that are consistent with the provisions of this Agreement. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's ’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(if) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's ’s Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(g) A copy of each 10-K shall be delivered to each Rating Agency promptly after filing.
Appears in 1 contract
Samples: Trust Agreement (Fixed Income Client Solutions LLC)
Preparation and Filing of Exchange Act Reports; Obligations of the Depositor and the Administrative Agent. (a) The Administrative Agent, if any, shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement and the related Series Supplement. The Depositor shall (or shall engage or, if provided in the Trustee torelated Series Supplement, the Administrative Agent) shall:
(1) on behalf of the Trust, prepare, sign prepare for signature by the Depositor and file with the Commission, following the execution thereof by the Depositor, within the time period set forth below, copies of the annual reports and of the information, documents, certifications documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe), if any, which the Depositor on behalf of the Trust may be required to file with the Commission pursuant to Regulation AB and Section 13 or 15(d) of the Exchange Act or otherwise required by Regulation AB (collectively, "Exchange Act “Reports"”) with respect to the Trust. .
(2) The names and requirements of such Exchange Act Reports and the dates on which they are required to be filed with the Commission are as follows:
(i) Form 8-K, in substantially the form previously provided by the Depositor to the Trustee, within fifteen (15) calendar days after the Closing Date and each Distribution Date, and within the time requirement prescribed advised to the Trustee by Regulation AB and the Exchange Act Depositor if the filing of Form 8-K is necessarynecessary for any other reason;
(ii) Form 10-D, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act;fifteen (15) calendar days after each Distribution Date; and
(iii) Form 10-K, in substantially the form previously provided by the Depositor to the Trustee, within the time requirement prescribed by Regulation AB and the Exchange Act; andninety (90) calendar days after December 31 of each year;
(iv) such other reports Reports as the Depositor requests the Trustee to prepare and file from time to time as may be required pursuant to Section 13 or 15(d) of the Exchange Act. Each annual report on Form 10-K will be signed by the Depositor and will include a certification Act or as otherwise required by Section 302 of the Sarbanes-Oxley Act of 2002, in the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.Regulation AB;
(b3) The Depositor shall deliver to receive from the Trustee, not less often than annually, an Officer's Certificate signed by an Executive Officer who is the principal executive officer, principal financial officer or principal accounting officer of the Depositor, dated on or prior to the date of the annual report on Form 10-K contemplated by clause within fifteen (a)(iii15) above, stating for such prior year that:
(i) a review of the activities of the Depositor during such fiscal year and of performance under the related Trust Agreement has been made under such Executive Officer's supervision;
(ii) to the best of such Executive Officer's knowledge, based on such review, the Depositor and the Trustee have each fulfilled its obligations under the related Trust Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such Executive Officer and the nature and status thereof;
(iii) to the best of such Executive Officer's knowledge, based on such review, the reports filed pursuant to Section 3.09(a), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by such certificate; and
(iv) to the best of such Executive Officer's knowledge, based on such review and reasonable reliance on information provided by the Trustee, the distribution and servicing information required to be provided to the Depositor by the Trustee for inclusion in the reports filed pursuant to Section 6.1(a)(i) is included in such reports. The text of the Officer's Certificate shall be revised accordingly in order to comply with any rules or other applicable laws of the Commission. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(c) The Trustee agrees to provide, at the Depositor's direction and expense, (i) reports on assessments of compliance with servicing criteria and (ii) attestation reports on assessments of compliance with servicing criteria prepared by an independent public accountant sufficient for the Depositor on behalf of the Trust, both in order to satisfy the Trust's obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Items 1122 and 1123 of Regulation AB. A copy of any such report may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.
(d) The Depositor shall deliver to the Trustee within 15 days after the Depositor is required to file the same with the Commission, such additional information, documents and reports with respect to compliance by the Depositor Trustee with the conditions and covenants of this Agreement, if any, as may be required to be filed with the Commission from time to time by such rules and regulations.;
(e4) The Depositor shall deliver to the Trustee, which shall then transmit for transmission by mail to all Holders described in TIA Section 313(c), in the manner and to the extent provided therein, such summaries of any information, documents and reports required to be filed by the Depositor and received pursuant to clauses (1) and (2) of this Section 6.1 6.1(a), if any, as may be required by rules and regulations prescribed from time to time by the Commission." Each annual report on Form 10-K will . The Trustee acknowledges and agrees that the performance of the Depositor’s (or, if applicable, the Administrative Agent’s) obligations under this Section 6.1 is in part dependent upon the Trustee providing certain of the relevant information to be signed by included in the applicable reports in a timely fashion. The Trustee shall reasonably cooperate with the Depositor (and will include a certification required by Section 302 of the Sarbanes-Oxley Act of 2002Administrative Agent, if applicable) in connection with the form prescribed by Item 601 of Reguxxxxxx X-X xxxer the Securities Act.
Depositor’s (1) a review of the activities of the Depositor during such fiscal year and of performance under this Agreement has been made under such Executive Officer's supervision; and
(2) to the best of such Executive Officer's knowledgeor, based on such reviewif applicable, the Depositor has fulfilled all Administrative Agent’s) performance of its obligations under this Agreement throughout Section 6.1.
(b) The Depositor shall deliver to the Trustee if required for filing with the Commission as part of any Form 10-K for a Series, not less often than annually, a certification signed by an Executive Officer who is the senior officer in charge of securitization of the Depositor (within the meaning of Regulation AB), dated as of the date set forth in the Series Supplement for such year, or, if there has been a default in the fulfillment of any such obligation, specifying that contains each such default known to such Executive Officer and the nature and status thereof. A copy of such certificate may be obtained by any Holder by a request in writing to the Depositor addressed to the Corporate Trust Office of the Trustee.items required by, and is in form and substance consistent with, Item 601(31) of Regulation S-K.
(fc) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), on the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Agreement, any agreements supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements as are necessary to perfect and make effective the lien and security interest of this Agreement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(gd) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee), at least annually after the Closing Date, the Depositor shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Agreement and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the lien and security interest created by this Agreement. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Agreement, any agreements supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Agreement until such date in the following calendar year.
(he) If and only if the Series Supplement provides for the pledge of the Term Assets Underlying Securities to the Trustee (and not merely the transfer, assignment, conveyance and sale, without recourse, thereof to the Trustee),
(i) whenever any property or securities are to be released from the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 ninety (90) days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Agreement in contravention of the provisions hereof.
(ii) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Depositor shall also furnish to the Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property or securities released from the lien of this Agreement since the commencement of the then current calendar year, as set forth in the certificates required by clause (i) above and this clause (ii), equals 10% or more of the principal amount of the Outstanding Certificates, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the then principal amount of the Outstanding Certificates.
(iii) prior to the deposit with the Trustee of any securities that are to be made the basis for the authentication and delivery of Certificates, the withdrawal of cash constituting a part of the trust estate or the release of any property or securities subject to the lien of this Agreement, the Depositor shall furnish to the Trustee an Officer's ’s Certificate of the Depositor certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 ninety (90) days of such deposit) to the Depositor of the securities to be so deposited.
(iv) whenever the Depositor is required to furnish to the Trustee an Officer's ’s Certificate of the Depositor described in clause (iii) above, the Depositor shall also deliver to the Trustee an Independent Certificate as to the same matters, if the fair value to the Depositor of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Depositor, as set forth in the certificates delivered pursuant to clause (iii) above and this clause (iv), is 10% or more of the principal amount of the Outstanding Certificates, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Depositor as set forth in the related Officer's ’s Certificate of the Depositor is less than $25,000 or less than one percent of the principal amount of the Outstanding Certificates.
(v) subject to the payment of its fees and expenses hereunder, the Trustee may, and when required by the provisions of this Agreement, shall, execute instruments to release property from the lien of this Agreement, or convey the Trustee's ’s interest in the same, in a manner and under circumstances that are consistent with the provisions of this AgreementAgreement upon receipt of an Officer’s Certificate of the Depositor stating that all covenants and conditions precedent in this Agreement to such release of property and execution of instruments, if any, to release property have been complied with. No party relying upon an instrument executed by the Trustee in connection therewith shall be bound to ascertain the Trustee's ’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(vi) the Trustee shall at such time as there are no Outstanding Certificates and all sums due to the Trustee hereunder have been paid, release any remaining portion of the trust estate that secured the Certificates from the lien of this Agreement and release to the Depositor or any other Person entitled thereto any funds then included in the trust estate.
(if) Upon any application or request by the Depositor to the Trustee to take any action under the provisions of this Agreement, which action is subject to the satisfaction of a condition precedent (including any covenants compliance with which constitutes a condition precedent), the Depositor shall furnish to the Trustee: (i) an Officer's ’s Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of the TIA, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that such signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such signatory has made such examination or investigations as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
Appears in 1 contract
Samples: Trust Agreement (Fixed Income Trust for Prudential Financial, Inc. Notes, Series 2012-1)
