Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the Unitholders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law. (b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV. (c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act. (d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units. (e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or Units. (f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes. (g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.
Appears in 6 contracts
Samples: Trust Agreement (MS Structured Asset Corp), Trust Agreement (MS Structured Asset Corp), Trust Agreement (MS Structured Asset Corp)
Administration of the Trust. (a) The Except as otherwise specified herein, the Trustee shall administer the Trust Property for the benefit of the UnitholdersCertificateholders. In engaging in such activitiesadministering the Trust Property, the Trustee shall follow or cause to be followed the collection procedures specified in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) Notes and the Guaranteeshall perform all other duties set forth herein. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article XVIII, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust this Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue accept delivery of the Certificates evidencing UnitsUnderlying Notes; to execute execute, authenticate and deliver and perform its obligations and exercise its rights under the Swap AgreementCertificates; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) Property to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05Trust; to make Permitted Eligible Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust Trustee shall not permit the Trust to engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support Notes or other Trust Property and entering into the Swap Agreement as provided herein, holding herein in trust for the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property)benefit of Certificateholders, issuing Certificates evidencing Unitsthe Certificates, making Permitted Eligible Investments in accordance with Section 3.06 and distributions pursuant to Article IV and performing its obligations hereunder and under the Swap Agreementduties set forth herein; provided, however, that during its existence the Trustee shall not permit the Trust shall not to engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, Act or which would cause the Trust to be taxed as an association or become publicly traded partnership taxable as a closed-end investment company required to be registered, but not registered, under corporation or otherwise alter the Investment Company Actclassification of the Trust for U.S. Federal income tax purposes.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer Transfer the Underlying Securities, the Swap Agreement, any Credit Support Notes or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement 8.08 or as otherwise expressly permitted specified hereunder. This section Section 3.02(d) shall not be construed to prohibit transfers Transfers of the UnitsCertificates or removal of any Underlying Notes from the Trust Property as expressly specified herein. In addition, the Trustee shall not acquire any asset or make any investment except as contemplated within the definition of Trust Property.
(e) The Trustee shall have the legal power be legally entitled to exercise all of the rights, powers and privileges of holders as a registered holder or beneficial owner of the Underlying Securities in which the Units evidence an interest; providedNotes, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereofAgreement. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities Notes or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the The Trustee shall not take actions any action that is reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); , (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); or , (iii) require the Trust to be registered under the Investment Company Act or (iv) cause the Trust to be taxed as a corporation or publicly traded partnership taxable as a corporation or otherwise alter the classification of a the Trust for U.S. federal Federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, and the Trustee shall have no power not fail to vary the corpus take any action that is reasonably likely to avoid any of the Trust Property including by matters referred to in clause (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support), (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities), (iii) accepting any substitute guarantee for the Guarantee, or (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeabove.
Appears in 5 contracts
Samples: Trust Agreement (Bond Trust Products LLC), Trust Agreement (Bond Trust Products LLC), Trust Agreement (Bond Trust Products LLC)
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the UnitholdersHolders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Swap Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue the Certificates certificates evidencing UnitsCertificates; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.059.03; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates certificates evidencing UnitsCertificates, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit certificate investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not cause or permit the Trust to merger or consolidate with any other entity and shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.059.03, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the UnitsCertificates.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units Certificates evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Swap Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Swap Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposespurposes or (iv) cause or permit the Trust to merge or consolidate with any other party.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a an Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Swap Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Swap Guarantee.
Appears in 2 contracts
Samples: Trust Agreement (Comcertz Abs Corp), Trust Agreement (Comcertz Abs Corp)
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the Unitholders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.059.03; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.059.03, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or Units.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.
Appears in 2 contracts
Samples: Trust Agreement (MSDW Structured Asset Corp), Trust Agreement (MSDW Structured Asset Corp)
Administration of the Trust. (a) The Except as otherwise specified herein, the Trustee shall administer the Trust Property for the benefit of the UnitholdersCertificateholders. In engaging in such activitiesadministering the Trust Property, the Trustee shall follow or cause to be followed the collection procedures specified in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) Notes and the Guaranteeshall perform all other duties set forth herein. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article XVIII, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust this Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue accept delivery of the Certificates evidencing UnitsUnderlying Notes; to execute execute, authenticate and deliver and perform its obligations and exercise its rights under the Swap AgreementCertificates; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) Property to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05Trust; to make Permitted Eligible Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust Trustee shall not permit the Trust to engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support Notes or other Trust Property and entering into the Swap Agreement as provided herein, holding herein in trust for the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property)benefit of Certificateholders, issuing Certificates evidencing Unitsthe Certificates, making Permitted Eligible Investments in accordance with Section 3.06 and distributions pursuant to Article IV and performing its obligations hereunder and under the Swap Agreementduties set forth herein; provided, however, that during its existence the Trustee shall not cause the Trust shall not to engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, Act or which would cause the Trust to be taxed as an association or become publicly traded partnership taxable as a closed-end investment company required to be registered, but not registered, under corporation or otherwise alter the Investment Company Actclassification of the Trust for U.S. Federal income tax purposes.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer Transfer the Underlying Securities, the Swap Agreement, any Credit Support Notes or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement 8.08 or as otherwise expressly permitted specified hereunder. This section Section 3.02(d) shall not be construed to prohibit transfers Transfers of the UnitsCertificates or removal of any Underlying Notes from the Trust Property as expressly specified herein. In addition, the Trustee shall not acquire any asset or make any investment except as contemplated within the definition of Trust Property.
(e) The Trustee shall have the legal power be legally entitled to exercise all of the rights, powers and privileges of holders as a registered holder or beneficial owner of the Underlying Securities in which the Units evidence an interest; providedNotes, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereofAgreement. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities Notes or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the The Trustee shall not take actions any action that is reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); , (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); or , (iii) require the Trust to be registered under the Investment Company Act or (iv) cause the Trust to be taxed as a corporation or publicly traded partnership taxable as a corporation or otherwise alter the classification of a the Trust for U.S. federal Federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, and the Trustee shall have no power not fail to vary the corpus take any action that is reasonably likely to avoid any of the Trust Property including by matters referred to in clause (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support), (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities), (iii) accepting any substitute guarantee for the Guarantee, or (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeabove.
Appears in 2 contracts
Samples: Trust Agreement (Incapital Trust Products LLC), Trust Agreement (Incapital Trust Products LLC)
Administration of the Trust. Servicing of the Mortgage Loans.
(a) The Trustee parties hereto intend that the REMIC Trust shall administer constitute, and that the affairs of the Trust Property shall be conducted so as to qualify the Master and Subsidiary REMICs as REMICs in accordance with the REMIC Provisions. In furtherance of such intention, each of the parties hereto covenants and agrees that it shall not knowingly take any actions or omit to take any actions that would disqualify the Master REMIC or Subsidiary REMIC for REMIC election or status and the Servicer covenants and agrees that it shall act, in its capacity as agent of the Tax Matters Person, as agent for the benefit Master and Subsidiary REMICs, and as agent of the Unitholders. In engaging "tax matters person" (as defined in the REMIC Provisions) and that in such activities, the Trustee shall follow capacity it shall: (i) prepare or cause to be followed collection procedures prepared, execute and file, in a timely manner, an annual Tax Return and any other Tax Return required to be filed by the Trust established hereunder using a calendar year as the taxable year for the Master and Subsidiary REMICs established hereunder; (ii) in the related first such Tax Return, make (or cause to be made) an election with respect to the Master and Subsidiary REMICs satisfying the requirements of the REMIC Provisions, on behalf of the Master and Subsidiary REMICs, to be treated as REMICs; (iii) prepare and forward, or cause to be prepared and forwarded, to the Certificateholders all information, reports or Tax Returns required with respect to the Master and Subsidiary REMICs as, when and in the form required to be provided to the Certificateholders and to the Internal Revenue Service and any other relevant governmental taxing authority in accordance with the REMIC Provisions and any other applicable federal, state or local laws, including, without limitation, information reports relating to "original issue discount" as defined in the Code based upon the Prepayment Assumption and calculated by using the "Issue Price" (within the meaning of Section 1275 of the Code) of the Certificates of the related Class; (iv) not knowingly take any action or omit to take any action that would cause the termination of the REMIC status of the Master REMIC or Subsidiary REMIC, except as provided under this Agreement; (v) pay, from the sources specified in the last paragraph of this Section 3.01(a), the amount of any and all other federal, state and local taxes imposed on the Master and Subsidiary REMICs, their assets or transactions, including, without limitation, the tax on "prohibited transactions" imposed by Section 860F of the Code, the tax on "contributions" imposed by Section 860G(d) of the Code and the tax on "net income from foreclosure property" imposed by Section 860G(c) of the Code when and as the same shall be due and payable (but such obligation shall not prevent the Trustee, the Trust Administrator or any other appropriate Person from contesting any such tax in appropriate proceedings and shall not prevent the Trustee or the Trust Administrator from withholding payment of such tax, if permitted by law, pending the outcome of such proceedings); (vi) represent the Trust in any administrative or judicial proceedings relating to an examination or audit by any governmental taxing authority, request an administrative adjustment as to a taxable year of the Trust, enter into settlement agreements with any governmental taxing agency, extend any statute of limitations relating to any tax item of the Trust, and otherwise act on behalf of the Trust in relation to any tax matter involving the Trust; (vii) comply with all statutory or regulatory requirements with regard to its conduct of activities pursuant to the foregoing clauses of this Section 3.01(a), including, without limitation, providing all notices and other information to the Internal Revenue Service and Holders of Class R Certificates required of a "tax matters person" pursuant to subtitle F of the Code and the Treasury Regulations thereunder; and (viii) make available information necessary for the computation of any tax imposed (A) on a transferor of Class R Certificates to certain Disqualified Organizations or (B) on pass-through entities, any interest in which is held by a Disqualified Organization. The obligations of the Servicer pursuant to this Section 3.01(a) shall survive the termination or discharge of this Agreement. In order to enable the Servicer to perform its duties as set forth herein, the Seller shall provide or cause to be provided to the Servicer or its designee, within ten (10) days after the Closing Date, all information or data that the Servicer or its designee reasonably determines to be relevant for tax purposes as to the valuations and offering prices of the Certificates, including, without limitation, the price, yield, Prepayment Assumption and projected cash flows of the Certificates and the Mortgage Loans. Thereafter, the Seller shall provide to the Servicer, promptly upon request therefor, any such additional information or data that the Servicer may from time to time reasonably request in order to enable the Servicer to perform its duties as set forth herein. The Seller shall indemnify the Servicer and hold it harmless for any loss, liability, damage, claim or expense of the Servicer arising from any failure of it to provide, or to cause to be provided, on a timely basis in response to the reasonable requests of the Servicer made pursuant to this paragraph, accurate information or data to the Servicer. The indemnification provisions hereunder shall survive the termination of this Agreement. In the event that any tax is imposed on "prohibited transactions" of the Master REMIC or Subsidiary REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure property" of the Master REMIC or Subsidiary REMIC as defined in Section 860G(c) of the Code, on any gain recognized by the Master REMIC or Subsidiary REMIC pursuant to Section 860F(c) of the Code, on any contribution to the Master or Subsidiary REMICs after the Startup Date pursuant to Section 860G(d) of the Code, or any other tax is imposed, if not paid as otherwise provided for herein, such tax shall be paid by (i) the Trustee, if any such tax arises out of or results from the willful malfeasance, bad faith or negligence in the performance by the Trustee of any of its obligations hereunder, (ii) the Trust Administrator, if any such tax arises out of or results from the willful malfeasance, bad faith or negligence in the performance by the Trust Administrator of any of its obligations hereunder, (iii) the Servicer or the Depositor, as applicable, if such tax arises out of or results from a breach by the Servicer or the Depositor of any of their respective obligations under this Agreement or (iv) in all other cases, or in the event that the Servicer, the Trustee, the Trust Administrator or the Depositor fails to honor its obligations under the preceding clauses (i) or (ii), any such tax will be paid with amounts otherwise to be distributed to the Holders of the Class R Certificates pursuant to Section 4.04(b) hereof or, in the event of an insufficiency in such amounts, such tax shall be paid directly by such Class R Certificateholders.
(i) The Servicer shall service and administer the Mortgage Loans in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) this Agreement and the Guarantee. The duties of the Trustee shall be performed respective Mortgage Loans and in accordance with applicable localthe instructions of the Trustee, State the Trust Administrator and Federal law.
(b) Subject to Article Xthe Certificate Insurer and, upon receipt of any such instructions from the Trust Administrator, the Trustee is hereby authorized to performand the Certificate Insurer, shall be fully protected against any liability arising from, and from time shall be allowed to time hereafterconclusively rely upon, shall perform only those acts which are described in the Trust Agreement as such instructions. Unless otherwise specified herein with respect to specific obligations of the Servicer, the Servicer shall service and administer the Mortgage Loans in the best interests of and for the benefit of the Holders and the Certificate Insurer in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of practice of mortgage lenders and loan servicers administering similar mortgage loans but without regard to:
(A) any relationship that the Servicer, any Subservicer or any Affiliate of the Servicer or any Subservicer may have with the related Mortgagor;
(B) the ownership of any Certificate by the Servicer or any affiliate of the Servicer
(C) the Servicer's obligation to make Delinquency Advances or Servicing Advances; or
(D) the Servicer's or any Subservicer's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer also shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone and/or through Subservicers as provided in Section 3.02 hereof, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. The Servicer shall promptly notify the Depositor, the Trustee, the Trust Administrator, the Certificate Insurer and each Rating Agency in writing of (A) any event, circumstance or occurrence which may materially and adversely affect the ability of the Servicer to service any Mortgage Loan or otherwise to perform and carry out its duties, responsibilities and obligations under and in accordance with this Agreement and (B) any attempt by a court or by a regulatory authority of which it has actual knowledge to assert jurisdiction over the Trust. Notwithstanding Without limiting the generality of the foregoing, the Trustee Servicer, in its own name or in the name of a Subservicer, is hereby specifically authorized and empowered, when the Servicer believes it appropriate in its best judgment and subject to do the following requirements of Section 3.07 hereof, to execute and deliver, on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Securities Certificateholders and the Swap Agreement; Trust or any of them, and upon notice to pledge the assets Trustee and the Trust Administrator, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust (including and Certificateholders. The Servicer shall service and administer the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Subject to Section 9.05; 3.16 hereof, the Trustee shall execute, at the written direction of the Servicer, and furnish to make Permitted Investments the Servicer and any Subservicer any limited or special powers of attorney and other documents reasonably acceptable to the Trustee to enable the Servicer or any Subservicer to carry out their servicing and administrative duties hereunder, including, without limitation, limited or special powers of attorney with respect to any REO Property, and the Trustee shall not be accountable, or have any liability, for the actions of the Servicer or any Subservicers under such powers of attorney.
(ii) Subject to Section 3.24 hereof and in accordance with the standards of the preceding paragraph, the Servicer shall make, or cause to be made, Servicing Advances as necessary for the purpose of effecting the payment of taxes and assessments on the Mortgaged Properties which Servicing Advances shall be made in a timely fashion so as to not adversely affect the value of the Mortgaged Property or the interests of the Certificateholders and which Servicing Advances shall be reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.063.09 hereof, and further as provided in Section 3.11 hereof; to liquidate provided, however, that the Trust pursuant to Article IX and Servicer shall not be required to make any Nonrecoverable Servicing Advance, as determined by the Servicer in its reasonable good faith business judgment. Any cost incurred by the Servicer or by Subservicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions pursuant to Article IVCertificateholders, be added to the Loan Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(ciii) Notwithstanding anything in this Agreement to the contrary hereincontrary, the Servicer shall not make any future advances to the Mortgagor with respect to a Mortgage Loan, and the Servicer shall not (a) permit any modification with respect to any Mortgage Loan that would change the Mortgage Rate, reduce or increase the principal balance or change the maturity date on such Mortgage Loan, unless the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable or (b) permit any modification, waiver or amendment of any term of any Mortgage Loan that would both effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury regulations promulgated thereunder) and cause either the Master REMIC or Subsidiary REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on "prohibited transactions" or "contributions after the startup date" under the REMIC Provisions.
(iv) All accounting and loan servicing records pertaining to each Mortgage Loan shall be maintained in such manner as will permit the Trustee, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying SecuritiesAdministrator, the Swap Depositor, the Certificateholders, the Certificate Insurer or their duly authorized representatives and designees to examine and audit and make legible reproductions of records during reasonable business hours. All such records shall be maintained until the termination of this Agreement or such longer period as is required under applicable law, including, but not limited to, all transaction registers and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing loan ledger histories. The Servicer may delegate its obligations hereunder and responsibilities under the Swap this Agreement; provided, however, that during its existence no such delegation shall release the Trust shall not engage Servicer from the responsibilities or liabilities arising under this Agreement and no delegation that would result in any business or activity which will cause it the delegee being a Subservicer is permitted except pursuant to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act3.02.
(dc) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or Units.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee Servicer shall not take actions reasonably likely any action to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair solicit the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value refinancing of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided Mortgage Loan included in the Trust AgreementEstate, except under the Trustee shall have no power to vary circumstances specifically set forth herein. It is understood and agreed that promotions undertaken by the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security Servicer which are directed to the Trust Propertygeneral public at large, (v) withdrawing from or designated segments thereof, including without limitation mass mailings based on commercially acquired mailing lists, newspaper, radio and television advertisements and offers to refinance made following receipt by Servicer of notice that the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance borrower was planning to refinance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeanother lender shall not constitute solicitation under this Section.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp)
Administration of the Trust. (a) The Except as otherwise specified herein, the Trustee shall administer the Trust Property for the benefit of the UnitholdersCertificateholders. In engaging in such activitiesadministering the Trust Property, the Trustee shall follow or cause to be followed collection the collections procedures specified in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) Notes and the Guaranteeshall perform all other duties set forth herein. The duties of the Trustee shall be performed in accordance with applicable localU.S. Federal, State and Federal local law.
(b) Subject to Article XVIII, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust this Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to accept delivery of the Underlying Notes; to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap AgreementCertificates; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) Property to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05Trust; to make Permitted Eligible Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust Trustee shall not permit the Trust to engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support Notes or other Trust Property and entering into the Swap Agreement as provided herein, holding herein in trust for the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property)benefit of Certificateholders, issuing Certificates evidencing Unitsthe Certificates, making Permitted Eligible Investments in accordance with Section 3.06 and distributions pursuant to Article IV and performing its obligations hereunder and under the Swap Agreementduties set forth herein; provided, however, that during its existence the Trustee shall not permit the Trust shall not to engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, Act or which would cause the Trust to be taxed as an association or become publicly traded partnership taxable as a closed-end investment company required to be registered, but not registered, under corporation or otherwise alter the Investment Company Actclassification of the Trust for U.S. Federal income tax purposes.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer Transfer the Underlying Securities, the Swap Agreement, any Credit Support Notes or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement 8.08 or as otherwise expressly permitted hereunder. This section Section 3.02(d) shall not be construed to prohibit transfers Transfers of the UnitsCertificates. In addition, the Trustee shall not acquire any asset or make any investment except as contemplated within the definition of Trust Property or as specified in Section 3.08 or 3.09.
(e) The Trustee shall have the legal power be legally entitled to exercise all of the rights, powers and privileges of holders as a registered holder or beneficial owner of the Underlying Securities in which the Units evidence an interest; providedNotes, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereofAgreement. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities Notes or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the The Trustee shall not take actions any action that is reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); , (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); or , (iii) require the Trust to be registered under the Investment Company Act or (iv) cause the Trust to be taxed as a corporation or publicly traded partnership taxable as a corporation or otherwise alter the classification of a the Trust for U.S. federal Federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, and the Trustee shall have no power not fail to vary the corpus take any action that is reasonably likely to avoid any of the Trust Property including by matters referred to in clause (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support), (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities), (iii) accepting any substitute guarantee for the Guarantee, or (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeabove.
Appears in 1 contract
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the Unitholders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.059.03; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property)) , issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.059.03, in accordance with Section 10.02(a)(x)10.02(a) (x) , as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or Units.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property)) ; (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property)) ; or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.
Appears in 1 contract
Administration of the Trust. (a) The Except as otherwise specified herein, the Trustee shall administer the Trust Property for the benefit of the UnitholdersCertificateholders. In engaging in such activitiesadministering the Trust Property, the Trustee shall follow or cause to be followed the collection procedures specified in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) Notes and the Guaranteeshall perform all other duties set forth herein. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article XVIII, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust this Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue accept delivery of the Certificates evidencing UnitsUnderlying Notes; to execute execute, authenticate and deliver and perform its obligations and exercise its rights under the Swap AgreementCertificates; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) Property to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05Trust; to make Permitted Eligible Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust Trustee shall not permit the Trust to engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support Notes or other Trust Property and entering into the Swap Agreement as provided herein, holding herein in trust for the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property)benefit of Certificateholders, issuing Certificates evidencing Unitsthe Certificates, making Permitted Eligible Investments in accordance with Section 3.06 and distributions pursuant to Article IV and performing its obligations hereunder and under the Swap Agreementduties set forth herein; provided, howeverfurther, that during its existence the Trustee shall not permit the Trust shall not to engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, Act or which would cause the Trust to be taxed as an association or become publicly traded partnership taxable as a closed-end investment company required to be registered, but not registered, under corporation or otherwise alter the Investment Company Actclassification of the Trust for U.S. Federal income tax purposes.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer Transfer the Underlying Securities, the Swap Agreement, any Credit Support Notes or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement 8.08 or as otherwise expressly permitted specified hereunder. This section Section 3.02(d) shall not be construed to prohibit transfers Transfers of the UnitsCertificates or removal of any Underlying Notes from the Trust Property as expressly specified herein. In addition, the Trustee shall not acquire any asset or make any investment except as contemplated within the definition of Trust Property.
(e) The Trustee shall have the legal power be legally entitled to exercise all of the rights, powers and privileges of holders as a registered holder or beneficial owner of the Underlying Securities in which the Units evidence an interest; providedNotes, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereofAgreement. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities Notes or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the The Trustee shall not take actions any action that is reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); , (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (Notes or any other Trust Property); or , (iii) require the Trust to be registered under the Investment Company Act or (iv) cause the Trust to be taxed as a corporation or publicly traded partnership taxable as a corporation or otherwise alter the classification of a the Trust for U.S. federal Federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, and the Trustee shall have no power not fail to vary the corpus take any action that is reasonably likely to avoid any of the Trust Property including by matters referred to in clause (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support), (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities), (iii) accepting any substitute guarantee for the Guarantee, or (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeabove.
Appears in 1 contract
Administration of the Trust. Servicing of the Mortgage Loans.
(a) The Trustee parties hereto intend that the REMIC Trust shall administer constitute, and that the affairs of the REMIC Trust shall be conducted so as to qualify it as, a REMIC in accordance with the REMIC Provisions. In furtherance of such intention, the parties hereto each covenant and agree that they shall not knowingly take any actions or omit to take any actions that would disqualify the Trust Property for REMIC election or status and the Trustee covenants and agrees that it shall act in its capacity as Tax Matters Person, as agent for the benefit of REMIC Trust and as the Unitholders. In engaging "tax matters person" (as defined in the REMIC Provisions) and that in such activities, the Trustee shall follow capacity it shall: (i) prepare or cause to be followed collection procedures prepared, execute and file, in a timely manner, an annual Tax Return and any other Tax Return required to be filed by the Trust established hereunder using a calendar year as the taxable year for the REMIC Trust established hereunder; (ii) in the related first such Tax Return, make (or cause to be made) an election satisfying the requirements of the REMIC Provisions, on behalf of the Trust, to be treated as a REMIC; (iii) prepare and forward, or cause to be prepared and forwarded, to the Certificateholders all information, reports or Tax Returns required with respect to the REMIC Trust as, when and in the form required to be provided to the Certificateholders, and to the Internal Revenue Service and any other relevant governmental taxing authority in accordance with the REMIC Provisions and any other applicable federal, state or local laws, including, without limitation, information reports relating to "interest" required by Section 6049 of the Code and "original issue discount" as defined in the Code, calculated based upon the Prepayment Assumption and by using the "issue price" (within the meaning of Section 1273 of the Code) of the Certificates of the related Class; (iv) not knowingly take any action or omit to take any action that would cause the termination of the REMIC status of the REMIC Trust, except as provided under this Agreement; (v) pay, from the sources specified in the last paragraph of this Section 3.01(a), the amount of any and all other federal, state and local taxes imposed on the REMIC Trust, its assets or transactions, including, without limitation, the tax on "prohibited transactions" imposed by Section 860F of the Code, the tax on "contributions" imposed by Section 860G(d) of the Code and the tax on "net income from foreclosure property" imposed by Section 860G(c) of the Code when and as the same shall be due and payable (but such obligation shall not prevent the Trustee or any other appropriate Person from contesting any such tax in appropriate proceedings and shall not prevent the Trustee from withholding payment of such tax, if permitted by law, pending the outcome of such proceedings); (vi) represent the Trust in any administrative or judicial proceedings relating to an examination or audit by any governmental taxing authority, request an administrative adjustment as to a taxable year of the Trust, enter into settlement agreements with any governmental taxing agency, extend any statute of limitations relating to any tax 71 80 item of the Trust, and otherwise act on behalf of the Trust in relation to any tax matter involving the Trust; (vii) comply with all statutory or regulatory requirements with regard to its conduct of activities pursuant to the foregoing clauses of this Section 3.01(a), including, without limitation, providing all notices and other information to the Internal Revenue Service and Holders of Class R Certificates required of a "tax matters person" pursuant to subtitle F of the Code and the Treasury Regulations thereunder; (viii) make available information necessary for the computation of any tax imposed (A) on a transferor of residual interests to certain Disqualified Organizations or (B) on pass-through entities, any interest in which is held by a Disqualified Organization; and (ix) in connection with any FHA Loan, timely pay to the FHA the FHA Insurance Premium required to be paid for each FHA Loan. The obligations of the Trustee pursuant to this Section 3.01(a) shall survive the termination or discharge of this Agreement. In order to enable the Trustee to perform its duties as set forth herein, the Seller shall provide or cause to be provided to the Trustee or its designee, within ten days after the Closing Date, all information or data that the Trustee or its designee reasonably determines to be relevant for tax purposes as to the valuations and offering prices of the Certificates, including, without limitation, the price, yield, prepayment assumption and projected cash flows of the Certificates and the Mortgage Loans. Thereafter, the Seller shall provide to the Trustee, promptly upon request therefor, any such additional information or data that the Trustee may from time to time reasonably request in order to enable the Trustee to perform its duties as set forth herein. The Seller shall indemnify the Trustee and hold it harmless for any loss, liability, damage, claim or expense of the Trustee arising from any failure of it to provide, or to cause to be provided, in response to the reasonable requests of the Trustee made pursuant to this paragraph, accurate information or data to the Trustee on a timely basis. The indemnification provisions hereunder shall survive the termination of this Agreement. In the event that any tax is imposed on "prohibited transactions" of the REMIC Trust as defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure property" of the REMIC Trust as defined in Section 860G(c) of the Code, on any gain recognized by the REMIC Trust pursuant to Section 860F(c) of the Code, on any contribution to the REMIC Trust after the Startup Day pursuant to Section 860G(d) of the Code, or any other tax is imposed, if not paid as otherwise provided for herein, such tax shall be paid by (i) the Trustee, if any such tax arises out of or results from the willful malfeasance, bad faith or negligence in the performance by the Trustee of any of its obligations under this Section 3.01(a), (ii) the Servicer or the Seller, as applicable, if such tax arises out of or results from a breach by the Servicer or the Seller of any of their respective obligations under this Agreement or (iii) in all other cases, or in the event that the Trustee, the Servicer or the Seller fails to honor its obligations under the preceding clauses (i) or (ii), any such tax will be paid with amounts otherwise to be distributed to the Holders of the Class R Certificates pursuant 72 81 to Section 4.04(a)(viii) or, in the event of an insufficiency in such amounts, such tax shall be paid directly by such Class R Certificateholders.
(i) The Servicer shall service and administer the Mortgage Loans in accordance with the terms of this Agreement and in accordance with the Trust Agreement, respective Mortgage Loans and in accordance with the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Guarantee. The duties instructions of the Trustee [AND THE CERTIFICATE INSURER]. Unless otherwise specified herein with respect to specific obligations of the Servicer, the Servicer shall be performed service and administer the Mortgage Loans in the best interests of and for the benefit of the Pool I, Pool II, Pool III or Pool IV Certificateholders, as the case may be, and [THE CERTIFICATE INSURER] in accordance with applicable local, State and Federal law.
(b) Subject to Article XAccepted Servicing Procedures. To the extent consistent with the foregoing, the Trustee is hereby authorized Servicer also shall seek to perform, maximize the timely and from time complete recovery of principal and interest on the Mortgage Notes. Subject only to time hereafter, shall perform only those acts which are the above-described in servicing standards and the Trust terms of this Agreement as obligations and of the Trusteerespective Mortgage Loans, the Servicer shall have full power and authority, acting alone and/or through Sub-Servicers as provided in Section 3.02, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Notwithstanding The Servicer shall promptly notify the Seller, [THE CERTIFICATE INSURER,] the Trustee and each Rating Agency in writing of (i) any event, circumstance or occurrence which may materially and adversely affect the ability of the Servicer to service any Mortgage Loan or to otherwise perform and carry out its duties, responsibilities and obligations under and in accordance with this Agreement and (ii) any attempt by a court or by a regulatory authority of which it has actual knowledge to assert jurisdiction over the Trust. Without limiting the generality of the foregoing, the Trustee Servicer, in its own name or in the name of a Sub-Servicer, is hereby specifically authorized and empowered when the Servicer believes it appropriate in its best judgment and subject to do the following requirements of Section 3.07 hereof, to execute and deliver, on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Securities Certificateholders and the Swap Agreement; Trust or any of them, and upon notice to pledge the assets Trustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust (including and Certificateholders. The Servicer shall service and administer the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. Subject to Section 9.05; 3.16, the Trustee shall execute, at the written direction of the Servicer, any limited or special powers of attorney and other documents reasonably acceptable to make Permitted Investments the Trustee to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, including, without limitation, limited or special powers of attorney with respect to any REO Property, and the Trustee shall not be accountable for the actions of the Servicer or any Sub-Servicers under such powers of attorney and shall be indemnified by such parties with respect to such actions. 73 82 (ii) Subject to Section 3.24 and in accordance with the standards of the preceding paragraph, the Servicer shall advance or cause to be advanced funds as necessary for the purpose of effecting the payment of taxes, assessments and insurance premiums on the Mortgaged Properties which advances shall be made in a timely fashion so as to not adversely affect the Appraised Value of the Mortgaged Property (other than with respect to certain Pool III Mortgage Loans, for which no such Appraised Value applies) or the interests of the Certificateholders and which advances shall be reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX 3.09, and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee further as provided in Section 10.07, through 3.11; provided that the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section Servicer shall not be construed required to prohibit transfers advance such funds to the extent it reasonably believes such funds will not be recoverable as evidenced by a certification of a Servicing Officer delivered to the Trustee [AND THE CERTIFICATE INSURER]. Any cost incurred by the Servicer or by Sub-Servicers in effecting the timely payment of taxes, assessments and insurance premiums on a Mortgaged Property shall not, for the purpose of calculating distributions to Certificateholders, be added to the Loan Balance of the Units.
(e) The Trustee shall have the legal power to exercise all of the rightsrelated Mortgage Loan, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, notwithstanding that the exercise terms of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or UnitsMortgage Loan so permit.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.
Appears in 1 contract
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the Unitholders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the GuaranteeCertificateholders. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafterhereafter shall perform, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized and directed to do the following on behalf of the Trust: (i) accept delivery of the Securities; (ii) accept, or execute and deliver, as applicable, any documentation relating to issue the Certificates evidencing UnitsCredit Support; to (iii) execute and deliver any documentation relating to the Call Right, (iv) execute and deliver, and perform its obligations and exercise its rights under under, the Swap Agreement; to (v) accept, and exercise its rights under, any Swap Guarantee; (vi) issue Certificate Documents and establish and maintain the Unit Account hereunderCertificate Account; to accept delivery of the Underlying Securities and the Swap Agreement; to (vii) pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust Trust, including obligations under the Swap Agreement; to (viii) sell the Underlying Securities through the Selling Agent in accordance with Section 9.059.03; to (ix) make Permitted Investments pursuant to Section 3.063.05; to and (x) liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support or other Trust Property Property, accepting, or executing and delivering, any documentation relating to the Credit Support, executing and delivering any documentation relating to the Call Right, entering into the Swap Agreement as provided hereinAgreement, holding accepting the Underlying Securitiesbenefits of, the and making demands and exercising its rights, under any Swap Agreement and any Credit Support (or other Trust Property)Guarantee, issuing Certificates evidencing UnitsCertificate Documents, making Permitted Investments in accordance with Section 3.06 3.05 and performing its obligations hereunder and under engaging in any business activities related or incidental to the Swap Agreement; provided, however, that during its existence foregoing. In no event shall the Trust shall not engage in any business or activity which will would cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not so registered, under the Investment Company Act.
(d) The Trustee shall not selltransfer, assign, pledge pledge, sell, set-off, or otherwise transfer dispose of, the Underlying Securities, the Swap Agreement, any Swap Guarantee, the Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except (i) to a successor trustee as provided in accordance with Section 10.0710.08, (ii) through the Selling Agent in accordance with Section 9.059.03, (iii) in accordance with Section 10.02(a)(x10.02(a)(ix), (iv) as 19 28 required under any the Swap Agreement or (v) as otherwise expressly permitted hereunder. This section paragraph (d) shall not be construed to prohibit transfers of the UnitsCertificates.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; providedSecurities, however, that the exercise of such powers shall be subject to the other provisions of this Section 3.02, Article X and the other provisions hereof. HoweverExcept as specifically provided in Section 8.01 or elsewhere in the Trust Agreement or in the TIA, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities or Unitsthe Securities.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take any actions that are reasonably likely to (nor fail to take any actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Securitythe Securities, the Swap Agreement, any Swap Guarantee, the Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); , (ii) impair the value of any Underlying Securitythe Securities, any the Credit Support, the Swap Agreement or the Agreement, any Swap Guarantee (or any other Trust Property); or , (iii) alter the classification of a the Trust for U.S. federal income tax purposespurposes or (iv) impair the Trust's ability to rely upon Rule 3a-7 under the Investment Company Act for exemption from status as an investment company thereunder.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including Property, whether by (i) accepting any substitute obligation or asset for a Underlying any Security or any Credit SupportSupport (except in connection with any exchange of, or substitution for, any Securities approved in accordance with Section 7.01(c)), (ii) entering into any amendment or modification of the Swap Agreement Securities or the Underlying SecuritiesSwap Agreement, (iii) accepting any substitute guarantee for the any Swap Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except other than in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the any Swap Guarantee.
Appears in 1 contract
Samples: Trust Agreement (Credit & Asset Repackaging Vehicle Corp)
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the Unitholders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Debt Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust Agreement as obligations obli gations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Debt Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Debt Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Debt Securities through the Selling Agent in accordance with Section 9.059.03; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Debt Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Debt Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Debt Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.059.03, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Debt Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Debt Securities or Units.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Debt Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Debt Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Debt Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Debt Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Debt Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.
Appears in 1 contract
Administration of the Trust. (a) The Except as otherwise specified herein, the Trustee shall administer the Trust Property for the benefit of the UnitholdersCertificateholders. In engaging in such activitiesadministering the Trust Property, the Trustee shall follow or cause to be followed the collection procedures specified in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) CDs and the Guaranteeshall perform all other duties set forth herein. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article XVIII, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust this Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue accept delivery of the Certificates evidencing UnitsUnderlying CDs; to execute execute, authenticate and deliver and perform its obligations and exercise its rights under the Swap AgreementCertificates; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) Property to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05Trust; to make Permitted Eligible Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust Trustee shall not permit the Trust to engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support CDs or other Trust Property and entering into the Swap Agreement as provided herein, holding herein in trust for the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property)benefit of Certificateholders, issuing Certificates evidencing Unitsthe Certificates, making Permitted Eligible Investments in accordance with Section 3.06 and distributions pursuant to Article IV and performing its obligations hereunder and under the Swap Agreementduties set forth herein; provided, however, that during its existence the Trustee shall not cause the Trust shall not to engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, Act or which would cause the Trust to be taxed as an association or become publicly traded partnership taxable as a closed-end investment company required to be registered, but not registered, under corporation or otherwise alter the Investment Company Actclassification of the Trust for U.S. Federal income tax purposes.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer Transfer the Underlying Securities, the Swap Agreement, any Credit Support CDs or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement 8.08 or as otherwise expressly permitted specified hereunder. This section Section 3.02(d) shall not be construed to prohibit transfers Transfers of the UnitsCertificates or removal of any Underlying CDs from the Trust Property as expressly specified herein. In addition, the Trustee shall not acquire any asset or make any investment except as contemplated within the definition of Trust Property.
(e) The Trustee shall have the legal power be legally entitled to exercise all of the rights, powers and privileges of holders as a registered holder or beneficial owner of the Underlying Securities in which the Units evidence an interest; providedCDs, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereofAgreement. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities CDs or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the The Trustee shall not take actions any action that is reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (CDs or any other Trust Property); , (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (CDs or any other Trust Property); or , (iii) require the Trust to be registered under the Investment Company Act or (iv) cause the Trust to be taxed as a corporation or publicly traded partnership taxable as a corporation or otherwise alter the classification of a the Trust for U.S. federal Federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, and the Trustee shall have no power not fail to vary the corpus take any action that is reasonably likely to avoid any of the Trust Property including by matters referred to in clause (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support), (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities), (iii) accepting any substitute guarantee for the Guarantee, or (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeabove.
Appears in 1 contract
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the Unitholders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the GuaranteeCertificateholders. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafterhereafter shall perform, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized and directed to do the following on behalf of the Trust: (i) accept delivery of the Securities; (ii) accept, or execute and deliver, as applicable, any documentation relating to issue the Certificates evidencing UnitsCredit Support; to (iii) execute and deliver any documentation relating to the Call Right, (iv) execute and deliver, and perform its obligations and exercise its rights under under, the Swap Agreement; to (v) accept, and exercise its rights under, any Swap Guarantee; (vi) issue Certificate Documents and establish and maintain the Unit Account hereunderCertificate Account; to accept delivery of the Underlying Securities and the Swap Agreement; to (vii) pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust Trust, including obligations under 18 25 the Swap Agreement; to (viii) sell the Underlying Securities through the Selling Agent in accordance with Section 9.059.03; to (ix) make Permitted Investments pursuant to Section 3.063.05; to and (x) liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving and holding the Underlying Securities and any Credit Support or other Trust Property Property, accepting, or executing and delivering, any documentation relating to the Credit Support, executing and delivering any documentation relating to the Call Right, entering into the Swap Agreement as provided hereinAgreement, holding accepting the Underlying Securitiesbenefits of, the and making demands and exercising its rights, under any Swap Agreement and any Credit Support (or other Trust Property)Guarantee, issuing Certificates evidencing UnitsCertificate Documents, making Permitted Investments in accordance with Section 3.06 3.05 and performing its obligations hereunder and under engaging in any business activities related or incidental to the Swap Agreement; provided, however, that during its existence foregoing. In no event shall the Trust shall not engage in any business or activity which will would cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not so registered, under the Investment Company Act.
(d) The Trustee shall not selltransfer, assign, pledge pledge, sale, or otherwise transfer dispose of, the Underlying Securities, the Swap Agreement, any Swap Guarantee, the Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except (i) to a successor trustee as provided in accordance with Section 10.0710.08, (ii) through the Selling Agent in accordance with Section 9.059.03, (iii) in accordance with Section 10.02(a)(x), (iv) as required under any the Swap Agreement or (v) as otherwise expressly permitted hereunder. This section paragraph (d) shall not be construed to prohibit transfers of the UnitsCertificates.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; providedSecurities, however, that the exercise of such powers shall be subject to the other provisions of this Section 3.02, Article X and the other provisions hereof. HoweverExcept as specifically provided in Section 8.01 or elsewhere in the Trust Agreement or in the TIA, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding Proceeding in respect of Underlying Securities or Unitsthe Securities.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take any actions that are reasonably likely to (nor fail to take any actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Securitythe Securities, the Swap Agreement, any Swap Guarantee, the Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); , (ii) impair the value of any Underlying Securitythe Securities, any the Credit Support, the Swap Agreement or the Agreement, any Swap Guarantee (or any other Trust Property); or , (iii) alter the classification of a the Trust for U.S. federal income tax purposespurposes or (iv) impair the Trust's ability to rely upon Rule 3a-7 under the Investment Company Act for exemption from status as an investment company thereunder.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including Property, whether by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.any
Appears in 1 contract
Samples: Trust Agreement (Credit & Asset Repackaging Vehicle Corp)
Administration of the Trust. (a) The Trustee shall administer the Trust Property for the benefit of the UnitholdersHolders. In engaging in such activities, the Trustee shall follow or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Swap Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and from time to time hereafter, shall perform only those acts which are described in the Trust Agreement as obligations of the Trustee. Notwithstanding the generality of the foregoing, the Trustee is hereby specifically authorized to do the following on behalf of the Trust: to issue the Certificates certificates evidencing UnitsCertificates; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Certificate Account hereunder; to accept delivery of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.059.03; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates certificates evidencing UnitsCertificates, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit certificate investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.059.03, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the UnitsCertificates.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units Certificates evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or UnitsCertificates.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Swap Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Swap Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a an Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Swap Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Swap Guarantee.
Appears in 1 contract
Samples: Trust Agreement (Comcertz Abs Corp)
Administration of the Trust. Servicing of the Mortgage Loans.
(a) The Trustee shall administer parties hereto intend that the Trust Property shall constitute, and that the affairs of the Trust shall be conducted so as to qualify the Trust as a REMIC in accordance with the REMIC Provisions. In furtherance of such intention, each of the parties hereto covenants and agrees that it shall not knowingly take any actions or omit to take any actions that would disqualify the Trust for REMIC election or status and the Master Servicer covenants and agrees that it shall act, in its capacity as agent of the Tax Matters Person, as agent for the benefit Trust, and as agent of the Unitholders. In engaging "tax matters person" (as defined in the REMIC Provisions) and that in such activities, the Trustee shall follow capacity it shall: (i) prepare or cause to be followed collection procedures prepared, execute and file, in a timely manner, an annual Tax Return and any other Tax Return required to be filed by the Trust established hereunder using a calendar year as the taxable year for the Trust established hereunder; (ii) in the related first such Tax Return, make (or cause to be made) an election with respect to the Trust satisfying the requirements of the REMIC Provisions, on behalf of the Trust, to be treated as a REMIC; (iii) prepare and forward, or cause to be prepared and forwarded, to the Certificateholders all information, reports or Tax Returns required with respect to the Trust as, when and in the form required to be provided to the Certificateholders and to the Internal Revenue Service and any other relevant governmental taxing authority in accordance with the REMIC Provisions and any other applicable federal, state or local laws, including, without limitation, information reports relating to "original issue discount" as defined in the Code based upon the Prepayment Assumption and calculated by using the "Issue Price" (within the meaning of Section 1275 of the Code) of the Certificates of the related Class; (iv) not knowingly take any action or omit to take any action that would cause the termination of the REMIC status of the Trust, except as provided under this Agreement; (v) pay, from the sources specified in the last paragraph of this Section 3.01(a), the amount of any and all other federal, state and local taxes imposed on the Trust, their assets or transactions, including, without limitation, the tax on "prohibited transactions" imposed by Section 860F of the Code, the tax on "contributions" imposed by Section 860G(d) of the Code and the tax on "net income from foreclosure property" imposed by Section 860G(c) of the Code when and as the same shall be due and payable (but such obligation shall not prevent the Trustee, the Trust Administrator or any other appropriate Person from contesting any such tax in appropriate proceedings and shall not prevent the Trustee or the Trust Administrator from withholding payment of such tax, if permitted by law, pending the outcome of such proceedings); (vi) represent the Trust in any administrative or judicial proceedings relating to an examination or audit by any governmental taxing authority, request an administrative adjustment as to a taxable year of the Trust, enter into settlement agreements with any governmental taxing agency, extend any statute of limitations relating to any tax item of the Trust, and otherwise act on behalf of the Trust in relation to any tax matter involving the Trust; (vii) comply with all statutory or regulatory requirements with regard to its conduct of activities pursuant to the foregoing clauses of this Section
3.01 (a), including, without limitation, providing all notices and other information to the Internal Revenue Service and Holders of Class R Certificates required of a "tax matters person" pursuant to subtitle F of the Code and the Treasury Regulations thereunder; and (viii) make available information necessary for the computation of any tax imposed (A) on a transferor of Class R Certificates to certain Disqualified Organizations or (B) on pass-through entities, any interest in which is held by a Disqualified Organization. The obligations of the Master Servicer pursuant to this Section 3.01(a) shall survive the termination or discharge of this Agreement. In order to enable the Master Servicer to perform its duties as set forth herein, the Depositor shall provide or cause to be provided to the Master Servicer or its designee, within ten (10) days after the Closing Date, all information or data that the Master Servicer or its designee reasonably determines to be relevant for tax purposes as to the valuations and offering prices of the Certificates, including, without limitation, the price, yield, Prepayment Assumption and projected cash flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide to the Master Servicer, promptly upon request therefor, any such additional information or data that the Master Servicer may from time to time reasonably request in order to enable the Master Servicer to perform its duties as set forth herein. The Depositor shall indemnify the Master Servicer and hold it harmless for any loss, liability, damage, claim or expense of the Master Servicer arising from any failure of it to provide, or to cause to be provided, on a timely basis in response to the reasonable requests of the Master Servicer made pursuant to this paragraph, accurate information or data to the Master Servicer. The indemnification provisions hereunder shall survive the termination of this Agreement. In the event that any tax is imposed on "prohibited transactions" of the Trust as defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure property" of the Trust as defined in Section 860G(c) of the Code, on any gain recognized by the Trust pursuant to Section 860F(c) of the Code, on any contribution to the Trust after the Startup Date pursuant to Section 860G(d) of the Code, or any other tax is imposed, if not paid as otherwise provided for herein, such tax shall be paid by (i) the Trustee, if any such tax arises out of or results from the willful malfeasance, bad faith or negligence in the performance by the Trustee of any of its obligations hereunder, (ii) the Trust Administrator, if any such tax arises out of or results from the willful malfeasance, bad faith or negligence in the performance by the Trust Administrator of any of its obligations hereunder, (iii) the Master Servicer or the Depositor, as applicable, if such tax arises out of or results from a breach by the Master Servicer or the Depositor of any of their respective obligations under this Agreement or (iv) in all other cases, or in the event that the Master Servicer, the Trustee, the Trust Administrator or the Depositor fails to honor its obligations under the preceding clauses (i) or (ii), any such tax will be paid with amounts otherwise to be distributed to the Holders of the Class R Certificates pursuant to Section 4.04(b) hereof or, in the event of an insufficiency in such amounts, such tax shall be paid directly by such Class R Certificateholders.
(i) The Master Servicer shall service and administer the Mortgage Loans in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) this Agreement and the Guarantee. The duties of the Trustee shall be performed respective Mortgage Loans and in accordance with applicable localthe instructions of the Trustee, State the Trust Administrator and Federal law.
(b) Subject to Article Xthe Certificate Insurer and, upon receipt of any such instructions from the Trust Administrator, the Trustee is hereby authorized to performand the Certificate Insurer, shall be fully protected against any liability arising from, and from time shall be allowed to time hereafterconclusively rely upon, shall perform only those acts which are described in the Trust Agreement as such instructions. Unless otherwise specified herein with respect to specific obligations of the Master Servicer, the Master Servicer shall service and administer the Mortgage Loans in the best interests of and for the benefit of the Holders and the Certificate Insurer in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of practice of mortgage lenders and loan servicers administering similar mortgage loans but without regard to:
(A) any relationship that the Master Servicer, any Subservicer or any Affiliate of the Master Servicer or any Subservicer may have with the related Mortgagor;
(B) the ownership or non-ownership of any Certificate by the Master Servicer or any affiliate of the Master Servicer;
(C) the Master Servicer's obligation to make Delinquency Advances or Servicing Advances; or
(D) the Master Servicer's or any Subservicer's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Master Servicer also shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and the respective Mortgage Loans, the Master Servicer shall have full power and authority, acting alone and/or through Subservicers as provided in Section 3.02 hereof, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. The Master Servicer shall promptly notify the Depositor, the Trustee, the Trust Administrator, the Certificate Insurer and each Rating Agency in writing of (A) any event, circumstance or occurrence which may materially and adversely affect the ability of the Master Servicer to service any Mortgage Loan or otherwise to perform and carry out its duties, responsibilities and obligations under and in accordance with this Agreement and (B) any attempt by a court or by a regulatory authority of which it has actual knowledge to assert jurisdiction over the Trust. Notwithstanding Without limiting the generality of the foregoing, the Trustee Master Servicer, in its own name or in the name of a Subservicer, is hereby specifically authorized and empowered, when the Master Servicer believes it appropriate in its best judgment and subject to do the following requirements of Section 3.07 hereof, to execute and deliver, on behalf of the Trust: to issue the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under the Swap Agreement; to establish and maintain the Unit Account hereunder; to accept delivery of the Underlying Securities Certificateholders and the Swap Agreement; Trust or any of them, and upon notice to pledge the assets Trustee and the Trust Administrator, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust (including and Certificateholders. The Master Servicer shall service and administer the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Master Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Subject to Section 9.05; 3.16 hereof, the Trustee shall execute, at the written direction of the Master Servicer, and furnish to make Permitted Investments the Master Servicer and any Subservicer any limited or special powers of attorney and other documents reasonably acceptable to the Trustee to enable the Master Servicer or any Subservicer to carry out their servicing and administrative duties hereunder, including, without limitation, limited or special powers of attorney with respect to any REO Property, and the Trustee shall not be accountable, or have any liability, for the actions of the Master Servicer or any Subservicers under such powers of attorney.
(ii) Subject to Section 3.24 hereof and in accordance with the standards of the preceding paragraph, the Master Servicer shall make, or cause to be made, Servicing Advances as necessary for the purpose of effecting the payment of taxes and assessments on the Mortgaged Properties which Servicing Advances shall be made in a timely fashion so as to not adversely affect the value of the Mortgaged Property or the interests of the Certificateholders and which Servicing Advances shall be reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.063.09 hereof, and further as provided in Section 3.11 hereof; to liquidate provided, however, that the Trust pursuant to Article IX and Master Servicer shall not be required to make any Nonrecoverable Servicing Advance, as determined by the Master Servicer in its reasonable good faith business judgment. Any cost incurred by the Master Servicer or by Subservicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions pursuant to Article IVCertificateholders, be added to the Loan Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(ciii) Notwithstanding anything in this Agreement to the contrary hereincontrary, the Master Servicer shall not make any future advances to the Mortgagor with respect to a Mortgage Loan, and the Master Servicer shall not (a) permit any modification with respect to any Mortgage Loan that would change the Mortgage Rate, reduce or increase the principal balance or change the maturity date on such Mortgage Loan, unless the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Master Servicer, reasonably foreseeable or (b) permit any modification, waiver or amendment of any term of any Mortgage Loan that would both effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury regulations promulgated thereunder) and cause the Trust to fail to qualify as a REMIC under the Code or the imposition of any tax on "prohibited transactions" or contributions after the startup date" under the REMIC Provisions.
(iv) All accounting and loan servicing records pertaining to each Mortgage Loan shall be maintained in such manner as will permit the Trustee, the Trust shall not engage in any business or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying SecuritiesAdministrator, the Swap Depositor, the Certificateholders, the Certificate Insurer or their duly authorized representatives and designees to examine and audit and make legible reproductions of records during reasonable business hours. All such records shall be maintained until the termination of this Agreement or such longer period as is required under applicable law, including, but not limited to, all transaction registers and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing loan ledger histories. The Master Servicer may delegate its obligations hereunder and responsibilities under the Swap this Agreement; provided, however, that during its existence no such delegation shall release the Trust shall not engage Master Servicer from the responsibilities or liabilities arising under this Agreement and no delegation that would result in any business or activity which will cause it the delegee being a Subservicer is permitted except pursuant to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act3.02.
(dc) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or Units.
(f) Except for actions expressly authorized by the Trust Agreement, the Trustee Master Servicer shall not take actions reasonably likely any action to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair solicit the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value refinancing of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposes.
(g) Except as expressly provided Mortgage Loan included in the Trust AgreementEstate, except under the Trustee shall have no power to vary circumstances specifically set forth herein. It is understood and agreed that promotions undertaken by the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security Master Servicer which are directed to the Trust Propertygeneral public at large, (v) withdrawing from or designated segments thereof, including without limitation mass mailings based on commercially acquired mailing lists, newspaper, radio and television advertisements and offers to refinance made following receipt by Master Servicer of notice that the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance borrower was planning to refinance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guaranteeanother lender shall not constitute solicitation under this Section.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 1999-NCB)
Administration of the Trust. (a) 38 .1 The Trustee shall administer Custodian on the Trust Property for the benefit instruction of the Unitholders. In engaging in such activities, Fund Manager shall be responsible for payment out of the Trustee shall follow Fund of all fees and expenses incurred or cause to be followed collection procedures in accordance with the terms of the Trust Agreement, the Underlying Securities, the Swap Agreement, the indemnification offered by the Depositor pursuant to Section 10.05(b) and the Guarantee. The duties of the Trustee shall be performed in accordance with applicable local, State and Federal law.
(b) Subject to Article X, the Trustee is hereby authorized to perform, and met from time to time hereafterin connection with the management or trusteeship of the Fund including (but excluding any incentive fee) not limited to Management Fees and expenses, the Trustee's fees, custodial fees, solicitor's fees, cost and expenses, fees and expenses of the Auditors, fees payable to SEC, advertising and promotional expenses, brokerage and other trading costs, and all such other reasonable expenses as are duly incurred or are to be incurred by and on behalf of the Fund, the aggregate of which shall perform only those acts which are described not exceed 3.5% of the Net Asset Value of the Fund per annum.
38 .2 All or any of such expenses shall be payable out of the Fund and the Fund Manager shall make provision by depositing and keepin g deposited under the control of the Custodian such amount as shall in the opinion of the Trustee in consultation with the Fund Manager be from time to time adequate (having regard to any other provisions which may from time to time be made for securing the same) out of the capital and income thereof (the “ Administration Account ”) and to provide for all such expenses during the continuance of the Trust.
38 .3 If at any time owing to the growth of the Trust Agreement or for any other reason the Custodian shall form the opinion and shall notify the Fund Manager that the Administration Account for the time being is not adequate as obligations aforesaid, then the Fund Manager shall forthwith deposit with the Custodian by way of addition to the Administration Account such amount as shall in the opinion of the Custodian and the Fund Manager be required to render the same adequate.
38 .4 The Administration Account shall be in the name of the Trustee. Notwithstanding /Fund and held by the generality Custodian upon and subject to such trusts and provisions (including provisions as to the manner of investmen t thereof and for periodical and other payments to be made thereat to the Fund Manager) as may be agreed between the Custodian and the Fund Manager being trusts and provisions not inconsistent with the maintenance of the Administration Account at an amount adequate as aforesaid.
38 .5 In consideration of the foregoing, neither the Trustee is hereby specifically authorized to do Custodian nor the following on behalf Fund Manager shall, except with the approval of the Trust: to issue Commission, make any further charge against the Certificates evidencing Units; to execute and deliver and perform its obligations and exercise its rights under Unit-Holders or against the Swap Agreement; to establish and maintain Fund or against any distribution for their services or for their normal expenses hereunder with the Unit Account hereunder; to accept delivery exception of the Underlying Securities and the Swap Agreement; to pledge the assets of the Trust (including the Underlying Securities) to secure the obligations of the Trust including obligations under the Swap Agreement; to sell the Underlying Securities through the Selling Agent in accordance with Section 9.05; to make Permitted Investments pursuant to Section 3.06; to liquidate the Trust pursuant to Article IX and to make distributions pursuant to Article IV.
(c) Notwithstanding anything to the contrary herein, the Trust shall not engage in any business charges or activities other than receiving the Underlying Securities and any Credit Support or other Trust Property and entering into the Swap Agreement as provided herein, holding the Underlying Securities, the Swap Agreement and any Credit Support (or other Trust Property), issuing Certificates evidencing Units, making Permitted Investments in accordance with Section 3.06 and performing its obligations hereunder and under the Swap Agreement; provided, however, that during its existence the Trust shall not engage in any business or activity which will cause it to be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(d) The Trustee shall not sell, assign, pledge or otherwise transfer the Underlying Securities, the Swap Agreement, any Credit Support or other Trust Property, or any interest of the Trust therein, to any Person or Persons, except to a successor trustee as provided in Section 10.07, through the Selling Agent in accordance with Section 9.05, in accordance with Section 10.02(a)(x), as required under any Swap Agreement or as otherwise expressly permitted hereunder. This section shall not be construed to prohibit transfers of the Units.
(e) The Trustee shall have the legal power to exercise all of the rights, powers and privileges of holders of the Underlying Securities in which the Units evidence an interest; provided, however, that the exercise of such powers shall be subject to the provisions of this Section 3.02, Article X and the other provisions hereof. However, neither the Trustee (except as specifically provided herein or in the TIA) nor the Depositor shall be under any obligation whatsoever to appear in, prosecute or defend any action, suit or other proceeding in respect of Underlying Securities or Units.
(f) Except for actions fees expressly authorized by the Trust Agreement, the Trustee shall not take actions reasonably likely to (nor fail to take actions, if such failure would be reasonably likely to) (i) impair the interests of the Trust in any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); (ii) impair the value of any Underlying Security, any Credit Support, the Swap Agreement or the Guarantee (or any other Trust Property); or (iii) alter the classification of a Trust for U.S. federal income tax purposesthis Deed.
(g) Except as expressly provided in the Trust Agreement, the Trustee shall have no power to vary the corpus of the Trust Property including by (i) accepting any substitute obligation or asset for a Underlying Security or any Credit Support, (ii) entering into any amendment or modification of the Swap Agreement or the Underlying Securities, (iii) accepting any substitute guarantee for the Guarantee, (iv) adding any other investment, obligation or security to the Trust Property, (v) withdrawing from the Trust Property any Underlying Securities or Credit Support, (vi) terminating the Swap Agreement except in accordance with its terms or (vii) rejecting or otherwise failing to accept the continuing benefits of the Guarantee.
Appears in 1 contract
Samples: Trust Deed
