Trust Not a Partnership; Taxation It is hereby expressly declared that a trust and not a partnership is created hereby. No Trustee hereunder shall have any power to bind personally either the Trust's officers or any Shareholder. All persons extending credit to, contracting with or having any claim against the Trust or the Trustees shall look only to the assets of the appropriate Portfolio or, until the Trustees shall have established any separate Portfolio, of the Trust for payment under such credit, contract or claim; and neither the Shareholders, the Trustees, nor the Trust's officers nor any of the agents of the Trustees whether past, present or future, shall be personally liable therefor. It is intended that the Trust, or each Portfolio if there is more than one Portfolio, be classified for income tax purposes as an association taxable as a corporation, and the Trustees shall do all things that they, in their sole discretion, determine are necessary to achieve that objective, including (if they so determine), electing such classifications on Internal Revenue Form 8832. The Trustees, in their sole discretion and without the vote or consent of the Shareholders, may amend this Agreement to ensure that this objective is achieved.
Grantor Trust Administration (a) The Tax Administrator shall treat the Grantor Trust Pool, for tax return preparation purposes, as a Grantor Trust under the Code. The Tax Administrator shall also perform on behalf of the Grantor Trust Pool all reporting and other tax compliance duties that are the responsibility of such Grantor Trust Pool under the Code or any compliance guidance issued by the IRS or any state or local taxing authorities. The expenses of preparing and filing such returns shall be borne by the Tax Administrator.
(b) The Tax Administrator shall pay out of its own funds any and all routine tax administration expenses of the Trust Fund incurred with respect to the Grantor Trust Pool (but not including any professional fees or expenses related to audits or any administrative or judicial proceedings with respect to the Trust Fund that involve the IRS or state tax authorities which extraordinary expenses shall be payable or reimbursable to the Tax Administrator from the assets in the Grantor Trust Pool, unless otherwise provided in Section 10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare or cause to be prepared, submit to the Trustee for execution (and the Trustee shall timely execute and timely return to the Tax Administrator) and timely file all of the Tax Returns in respect of the Grantor Trust Pool. The expenses of preparing and filing such returns shall be borne by the Tax Administrator without any right of reimbursement therefor. Except as provided in Section 10.02(h), 10.02(i) and 10.02(j), the Tax Administrator shall comply with such requirement by filing IRS Form 1041, indicating the name and address of the Trust and signed by the Tax Administrator but otherwise left blank, IRS Form 1099 or any other such form as may be applicable. There shall be appended to each such form a schedule for each Certificateholder indicating such Certificateholder’s share of income and expenses of the Trust for the portion of the preceding calendar year in which such Certificateholder possessed an Ownership Interest in a Certificate. Such form shall be prepared in sufficient detail to enable reporting on the cash or accrual method of accounting, as applicable, and to report on such Certificateholder’s fiscal year if other than the calendar year.
(d) The other parties hereto shall provide on a timely basis to the Tax Administrator or its designee such information with respect to the Grantor Trust Pool as is in its possession and reasonably requested by the Tax Administrator to enable it to perform its obligations under this Section 10.02. Without limiting the generality of the foregoing, the Depositor, within ten (10) days following the Tax Administrator’s request therefor, shall provide in writing to the Tax Administrator such information as is reasonably requested by the Tax Administrator for tax purposes, and the Tax Administrator’s duty to perform its reporting and other tax compliance obligations under this Section 10.02 shall be subject to the condition that it receives from the Depositor such information possessed by the Depositor that is necessary to permit the Tax Administrator to perform such obligations.
(e) The Tax Administrator shall perform on behalf of the Grantor Trust Pool all reporting and other tax compliance duties that are required in respect thereof under the Code, the Grantor Trust Provisions or other compliance guidance issued by the IRS or any state or local taxing authority, including the furnishing to Certificateholders of the schedules described in Section 10.02(c).
(f) The Tax Administrator shall perform its duties hereunder so as to maintain the status of the Grantor Trust Pool as Grantor Trust under the Grantor Trust Provisions (and the Trustee, the Master Servicers and the Special Servicers shall assist the Tax Administrator to the extent reasonably requested by the Tax Administrator and to the extent of information within the Trustee’s, the Master Servicers’ or the Special Servicers’ possession or control). None of the Tax Administrator, Master Servicers, the Special Servicers or the Trustee shall knowingly take (or cause the Grantor Trust Pool to take) any action or fail to take (or fail to cause to be taken) any action that, under the Grantor Trust Provisions, if taken or not taken, as the case may be, could result in an Adverse Grantor Trust Event, unless the Tax Administrator has obtained or received an Opinion of Counsel (at the expense of the party requesting such action or at the expense of the Trust Fund if the Tax Administrator seeks to take such action or to refrain from taking any action for the benefit of the Certificateholders) to the effect that the contemplated action will not result in an Adverse Grantor Trust Event. None of the other parties hereto shall take any action or fail to take any action (whether or not authorized hereunder) as to which the Tax Administrator has advised it in writing that the Tax Administrator has received or obtained an Opinion of Counsel to the effect that an Adverse Grantor Trust Event could result from such action or failure to act. In addition, prior to taking any action with respect to the Grantor Trust Pool, or causing the Trust Fund to take any action, that is not expressly permitted under the terms of this Agreement, the Master Servicers and the Special Servicers shall consult with the Tax Administrator or its designee, in writing, with respect to whether such action could cause an Adverse Grantor Trust Event to occur. The Tax Administrator may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement, but in no event at the cost or expense of the Trust Fund, the Tax Administrator or the Trustee.
(g) If any tax is imposed on the Grantor Trust Pool pursuant to the Code or any applicable provisions of state or local tax laws, then such tax, together with all incidental costs and expenses (including penalties and reasonable attorneys’ fees), shall be charged to and paid by: (i) the Trustee, if such tax arises out of or results from a breach of any of its obligations under Article IV, Article VIII or this Section 10.02 (which breach constitutes negligence, bad faith or willful misconduct); (ii) the Certificate Administrator, if such tax arises out of or results from a breach by the Certificate Administrator of any of its obligations under Article IV, Article VIII or this Section 10.02 (which breach constitutes negligence, bad faith or willful misconduct); (iii) the Tax Administrator, if such tax arises out of or results from a breach by the Tax Administrator of any of its obligations under Article IV, Article VIII or this Section 10.02 (which breach constitutes negligence, bad faith or willful misconduct); (iv) a Master Servicer, if such tax arises out of or results from a breach by such Master Servicer of any of its obligations under Article III or this Section 10.02 (which breach constitutes negligence, bad faith or willful misconduct); (v) a Special Servicer, if such tax arises out of or results from a breach by such Special Servicer of any of its obligations under Article III or this Section 10.02 (which breach constitutes negligence, bad faith or willful misconduct); or (vi) the Trust, out of the Trust Fund, in all other instances. Any such amounts payable by the Trust in respect of taxes shall be paid by the Trustee out of amounts on deposit in the Distribution Account.
(h) The Grantor Trust is a WHFIT that is a WHMT. The Tax Administrator will report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Tax Administrator to do so is provided to the Tax Administrator on a timely basis. The Certificate Administrator shall provide such information in its possession to the Tax Administrator on a timely basis. With respect to the Class A-S, Class B, Class C and Class PEX Certificates, the Tax Administrator is hereby directed to assume that DTC is the only “middleman” as defined by the WHFIT Regulations unless the Depositor provides the Tax Administrator with the identities of other “middlemen” that are Certificateholders. The Tax Administrator will report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Tax Administrator to do so, and is not in its possession, is provided to the Tax Administrator on a timely basis. The Tax Administrator will not be liable for any tax reporting penalties that may arise under the WHFIT Regulations as a result of a determination by the IRS that is contrary to the first sentence of this paragraph.
(i) The Tax Administrator, in its discretion, will report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Tax Administrator will be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Tax Administrator will make available WHFIT information to Certificateholders annually. In addition, the Tax Administrator will not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.
(j) The Tax Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information being provided to the Tax Administrator or (ii) incomplete, inaccurate or untimely information being provided to the Tax Administrator. Each owner of a class of securities representing, in whole or in part, beneficial ownership of an interest in a WHFIT, by acceptance of its interest in such class of securities, will be deemed to have agreed to provide the Tax Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of such information, and unless informed otherwise by the Depositor, the Tax Administrator will assume there is no secondary market trading of WHFIT interests.
(k) To the extent required by the WHFIT Regulations, the Tax Administrator will use reasonable efforts to publish on an appropriate website the CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs so published will represent the Rule 144A CUSIPs. The Tax Administrator will not publish any associated Regulation S CUSIPs. The Tax Administrator will make reasonable good faith efforts to keep the website accurate and updated to the extent CUSIPs have been received. Absent the receipt of a CUSIP, the Tax Administrator will use a reasonable identifier number in lieu of a CUSIP. The Tax Administrator will not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.
