Common use of The Trustee and the Certificate Administrator Clause in Contracts

The Trustee and the Certificate Administrator. Section 8.01. Duties of the Trustee and the Certificate Administrator. ------------------------------------------------------- If a Servicing Default has occurred and is continuing, each of the Trustee and the Certificate Administrator shall exercise the rights and powers vested in each of them by this Agreement and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (a) Except during the continuance of a Servicing Default: (i) each of the Trustee and the Certificate Administrator undertake to perform such duties and only such duties as are specifically set forth in this Agreement with respect to the Trustee and the Certificate Administrator, respectively, and no implied covenants or obligations shall be read into this Agreement against the Trustee or the Certificate Administrator; and (ii) in th e absence of bad faith on its part, each of the Trustee and the Certificate Administrator, as the case may be, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and/or the Certificate Administrator, as applicable, and conforming to the requirements of this Agreement; provided, however, that each of the Trustee and the Certificate Administrator, as the case may be, shall examine the certificates and opinions delivered to it to determine whether or not they conform to the requirements of this Agreement, provided, further, however, that the Trustee shall have no duty or responsibility to review any document, certificate, instrument or opinion delivered solely to the Certificate Administrator. (b) Neither the Trustee nor the Certificate Administrator may be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) this paragraph does not limit the effect of paragraph (b) of this Section 8.01; (ii) the Trustee and the Certificate Administrator shall not be liable for any error of judgment made in good faith by its respective Responsible Officer unless it is proved that the Trustee or the Certificate Administrator, respectively, was negligent in ascertaining the pertinent facts; and (iii) neither the Trustee nor the Certificate Administrator shall be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Majority Certificateholders. Neither the Trustee nor the Certificate Administrator shall be liable for interest on any money received by the Trustee or the Certificate Administrator, as the case may be, except as the Trustee or the Certificate Administrator, respectively, may agree in writing with the Servicer. Money held in trust by the Trustee or the Certificate Administrator need not be segregated from other trust funds except to the extent required by law or the terms of this Agreement. No provision of this Agreement shall require the Trustee or the Certificate Administrator to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Subject to the other provisions of this Agreement and without limiting the generality of this Section 8.01, the Trustee and the Certificate Administrator shall have no duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Payment Account, or (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Certificate Administrator or the Trustee believed by the Certificate Administrator or the Trustee to be genuine and to have been signed or presented by the proper party or parties. (c) The Certificate Administrator shall act as successor to the Servicer to the extent provided in Section 7.02 hereof. (d) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice or knowledge of any Servicing Default unless a Responsible Officer assigned to and working in the Trustee's or the Certificate Administrator's, respectively, corporate trust department has actual knowledge thereof or unless written notice of any event which is in fact such Servicing Default is received by the Trustee or the Certificate Administrator, respectively, at the Corporate Trust Office, and such notice references the Certificates generally, the Trust, or this Agreement. The Trustee and the Certificate Administrator are hereby authorized to execute and shall execute this Agreement, the Purchase Agreement, and the Converted Loan Purchase Agreement, and shall perform their respective duties and satisfy their respective obligations thereunder. Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee or the Certificate Administrator shall apply to the Trustee's and the Certificate Administrator's execution of this Agreement, the Purchase Agreement, and the Converted Loan Purchase Agreement, and the performance of their respective duties and satisfaction of its obligations hereunder and thereunder. Notwithstanding any term or provision in this Agreement to the contrary, the rights and obligations of the Trustee as trustee under this Agreement shall not be diminished by the fact that the Trustee may employ the services of the Certificate Administrator to accomplish the duties of the Trustee hereunder. Accordingly, any references in this Agreement or the other Basic Documents alluding to a right or obligation of the Certificate Administrator (other than the obligation of the Certificate Administrator to act as successor Servicer pursuant to Section 7.02 hereof in the event of a Servicing Default) shall be construed to mean such right or obligation of the Trustee, which right or obligation may be accepted or performed by the Certificate Administrator on behalf of the Trustee.

The Trustee and the Certificate Administrator. Section 8.01. Duties of the Trustee and the Certificate Administrator. ------------------------------------------------------- -------------------------------------------------------- If a Servicing Default has occurred and is continuing, each of the Trustee and the Certificate Administrator shall exercise the rights and powers vested in each of them by this Agreement and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (a) Except during the continuance of a Servicing Default: (i) each of the Trustee and the Certificate Administrator undertake to perform such duties and only such duties as are specifically set forth in this Agreement with respect to the Trustee and the Certificate Administrator, respectively, and no implied covenants or obligations shall be read into this Agreement against the Trustee or the Certificate Administrator; and (ii) in th e the absence of bad faith on its part, each of the Trustee and the Certificate Administrator, as the case may be, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and/or the Certificate Administrator, as applicable, and conforming to the requirements of this Agreement; provided, however, that each of the Trustee and the Certificate Administrator, as the case may be, shall examine the certificates and opinions delivered to it to determine whether or not they conform to the requirements of this Agreement, provided, further, however, that the Trustee shall have no duty or responsibility to review any document, certificate, instrument or opinion delivered solely to the Certificate Administrator. (b) Neither the Trustee nor the Certificate Administrator may be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (ia) this paragraph does not limit the effect of paragraph (b) of this Section 8.01; (iib) the Trustee and the Certificate Administrator shall not be liable for any error of judgment made in good faith by its respective Responsible Officer unless it is proved that the Trustee or the Certificate Administrator, respectively, was negligent in ascertaining the pertinent facts; and (iiic) neither the Trustee nor the Certificate Administrator shall be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Majority Certificateholders. Neither the Trustee nor the Certificate Administrator shall be liable for interest on any money received by the Trustee or the Certificate Administrator, as the case may be, except as the Trustee or the Certificate Administrator, respectively, may agree in writing with the Servicer. Money held in trust by the Trustee or the Certificate Administrator need not be segregated from other trust funds except to the extent required by law or the terms of this Agreement. No provision of this Agreement shall require the Trustee or the Certificate Administrator to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Subject to the other provisions of this Agreement and without limiting the generality of this Section 8.01, the Trustee and the Certificate Administrator shall have no duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Payment Account, or (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Certificate Administrator or the Trustee believed by the Certificate Administrator or the Trustee to be genuine and to have been signed or presented by the proper party or parties. (c) The Certificate Administrator shall act as successor to the Servicer to the extent provided in Section 7.02 hereof. (d) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice or knowledge of any Servicing Default unless a Responsible Officer assigned to and working in the Trustee's or the Certificate Administrator's, respectively, corporate trust department has actual knowledge thereof or unless written notice of any event which is in fact such Servicing Default is received by the Trustee or the Certificate Administrator, respectively, at the Corporate Trust Office, and such notice references the Certificates generally, the Trust, or this Agreement. The Trustee and the Certificate Administrator are hereby authorized to execute and shall execute this Agreement, the Purchase Agreement, and the Converted Loan Purchase Agreement, and shall perform their respective duties and satisfy their respective obligations thereunder. Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee or the Certificate Administrator shall apply to the Trustee's and the Certificate Administrator's execution of this Agreement, the Purchase Agreement, and the Converted Loan Purchase Agreement, and the performance of their respective duties and satisfaction of its obligations hereunder and thereunder. Notwithstanding any term or provision in this Agreement to the contrary, the rights and obligations of the Trustee as trustee under this Agreement shall not be diminished by the fact that the Trustee may employ the services of the Certificate Administrator to accomplish the duties of the Trustee hereunder. Accordingly, any references in this Agreement or the other Basic Documents alluding to a right or obligation of the Certificate Administrator (other than the obligation of the Certificate Administrator to act as successor Servicer pursuant to Section 7.02 hereof in the event of a Servicing Default) shall be construed to mean such right or obligation of the Trustee, which right or obligation may be accepted or performed by the Certificate Administrator Administrator, on behalf of the Trustee.