The Trust Agreement The Trust Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
The Trust Fund Xxxxxx Mae, acting in its capacity as Trustee for the Lower Tier REMIC, does hereby transfer, assign, set over and otherwise convey to Xxxxxx Xxx, acting in its capacity as Trustee for the Trust Fund established hereby, all of Xxxxxx Mae’s right, title and interest in and to the Lower Tier Regular Classes, including all payments of principal and interest thereon received after the month of the Issue Date.
of the Trust Agreement Subject to the terms of the Trust Agreement, the principal payable on this Class C1-R Certificate shall be paid on each Payment Date during the term of the Trust Agreement, beginning on the Initial Payment Date. All payments of principal with respect to all of the Class C1-R Certificates of a Series shall be made on a pro rata basis based upon the ratio that the Outstanding Principal Amount of a Class C1-R Certificate bears to the Outstanding Principal Amount of all Class C1-R Certificates of such Series; provided that, if as a result of such proration a -------- portion of such principal would be less than $0.01, then such payment shall be reduced to the nearest whole cent. In addition, the Certificate Prepayment Fee Amount, if any, shall be distributed on each Payment Date to the Holders of the Class C1-R Certificates to the extent such Class is receiving a distribution of Prepaid Principal Amount on such date. All payments of Certificate Prepayment Fee Amounts with respect to the Class C1-R Certificates shall be made prorata based upon the ratio of the Outstanding Principal Amount of this Certificate to the Outstanding Principal Amount of Class C1-R Certificates of this Series, provided that if as a result of such proration, a portion of such payment would be less than $0.01, then such payment shall be reduce to the nearest whole cent. The interest and principal so payable on any Payment Date will, as provided in the Trust Agreement, be paid to the Person in whose name this Certificate is registered on the Record Date for such Payment Date, which shall be the close of business on the last day of the month prior to such Payment Date (whether or not a Business Day). The principal and interest on this Certificate are payable by wire transfer in immediately available funds to the account specified in writing to the Trustee by the Person whose name appears as the Registered Holder of this Certificate on the Certificate Register received at least five (5) Business Days prior to the Record Date for the Payment Date (or if no such account is specified or if such wire fails, by check mailed by first-class mail to the Person whose name appears as the Registered Holder of this Certificate on the Certificate Register at the address of such Person as it appears on the Certificate Register), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Funds represented by checks returned undelivered will be held for payment to the Person entitled thereto, subject to the terms of the Trust Agreement, at the office or agency in the United States of America designated as such by the Depositor for such purpose pursuant to the Trust Agreement. The Depositor has structured the Trust Agreement and the Certificates with the intention that the Trust be treated as a partnership, with the assets of the partnership including all of the assets of the Trust Estate and the partners of the partnership being all of the Certificateholders and the Depositor. The Depositor, the Trustee, the Servicer and each Certificateholder, by acceptance of its Certificate (and any Person that is a beneficial owner of any interest in a Certificate, by virtue of such Person's acquisition of a beneficial interest therein), agree to report the transactions contemplated thereby in accordance with such stated intentions unless and until determined to the contrary by an applicable taxing authority. The property of the Trust Estate includes certain Loan Assets and certain other assets described in the Trust Agreement. The Class C1-R Certificates of the 1998-1 Series and all other Series of Class C1-R Certificates issued under the Trust Agreement are generally payable out of the Trust Estate pari passu among such Class C1-R Certificateholders equally and ratably without prejudice, priority or distinction between any Class C1-R Certificate by reason of time of issue or otherwise. The Class C1-R Certificates are payable only out of the Trust Estate and do not represent recourse obligations of the Depositor, Allegiance Capital, LLC or any of their respective affiliates or successors. The Trust Agreement pursuant to which this Class C1-R Certificate is issued also provides for the issuance of other Classes and Series of Certificates from time to time. Payments of interest on the Class C1-R Certificates are senior to such payments on other Classes having a lower credit rating from the Rating Agency and are subordinate to payments of interest on any Classes having a higher credit rating form the Rating Agency. Payments of principal in the Class C1-R Certificates are senior to payments of principal on other classes having a lower credit rating from the Rating Agency and are subordinate to such payments on any Class having a higher credit rating from the Rating Agency. Unless the Depositor exercises its Optional Termination rights, the Certificates are payable only at the time and in the manner provided in the Trust Agreement and are not redeemable or prepayable at the option of the Depositor before such time, except that the Depositor may cause the Trust to prepay on a dollar for dollar basis the principal, without penalty or premium, of any Outstanding Series of Revolving Certificates with the proceeds of the issuance or Funding of a Series of Term Certificates. As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Certificate may be registered on the Certificate Register of the Depositor upon surrender of this Certificate for registration of transfer at the office or agency of the Depositor in the United States of America maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Depositor and the Trustee and duly executed by the holder hereof or his attorney duly authorized in writing, and thereupon one or more new Class C1-R Certificates of the same Scheduled Maturity of authorized denominations and for the same initial aggregate principal amount will be issued to the designated transferees. Prior to due presentment for registration of transfer of this Certificate, the Depositor, the Trustee and any agent of the Depositor or the Trustee shall treat the Person in whose name this Certificate is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes whether or not this Certificate be overdue, and neither the Depositor, the Trustee, nor any such agent shall be affected by notice to the contrary. The Holder of this Certificate, by acceptance of this Certificate, agrees that for one year and one day after it has been paid hereunder, it or any Affiliate thereof will not (without the consent of Holders holding at least 51% of all Rated Certificates, by Outstanding Principal Amount) file any involuntary petition or otherwise institute any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law against the Depositor. The Trust Agreement permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor and the rights of the Holders of the Certificates under the Trust Agreement at any time by the Depositor, the Trustee and the Servicer without the consent of the Holders of the Certificates. The Certificates are issuable only in registered form without coupons in such authorized denominations as provided in the Trust Agreement and subject to certain limitations therein set forth. This Class C1-R Certificate and the Trust Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles. No reference herein to the Trust Agreement and no provision of this Class C1-R Certificate or of the Trust Agreement shall alter or impair the obligation of the Trust Estate to pay the principal of and interest on this Class C1-R Certificate, but solely from the assets of the Trust Estate at the times, place and rate, and in the coin or currency, herein prescribed.
Sale of Trust Estate (a) The power to effect any sale or other disposition (a "Sale") of any portion of the Trust Estate pursuant to Section 5.04 is expressly subject to the provisions of Section 5.05 and this Section 5.15. The power to effect any such Sale shall not be exhausted by any one or more Sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall have been sold or all amounts payable on the Notes and under this Indenture and under the Insurance Agreement shall have been paid. The Indenture Trustee may from time to time postpone any public Sale by public announcement made at the time and place of such Sale. The Indenture Trustee hereby expressly waives its right to any amount fixed by law as compensation for any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the Trust Estate, or any portion thereof, unless
(1) the Holders of all Notes and the Credit Enhancer consent to or direct the Indenture Trustee to make, such Sale, or
(2) the proceeds of such Sale would be not less than the entire amount which would be payable to the Noteholders under the Notes and the Credit Enhancer in respect of amounts drawn under the Credit Enhancement Instrument and any other amounts due the Credit Enhancer under the Insurance Agreement, in full payment thereof in accordance with Section 5.02, on the Payment Date next succeeding the date of such Sale, or
(3) The Indenture Trustee determines, in its sole discretion, that the conditions for retention of the Trust Estate set forth in Section 5.05 cannot be satisfied (in making any such determination, the Indenture Trustee may rely upon an opinion of an Independent investment banking firm obtained and delivered as provided in Section 5.05), and the Credit Enhancer consents to such Sale, which consent will not be unreasonably withheld and the Holders representing at least 66-2/3% of the Security Balances of the Notes consent to such Sale. The purchase by the Indenture Trustee of all or any portion of the Trust Estate at a private Sale shall not be deemed a Sale or other disposition thereof for purposes of this Section 5.15(b).
(c) Unless the Holders and the Credit Enhancer have otherwise consented or directed the Indenture Trustee, at any public Sale of all or any portion of the Trust Estate at which a minimum bid equal to or greater than the amount described in paragraph (2) of subsection (b) of this Section 5.15 has not been established by the Indenture Trustee and no Person bids an amount equal to or greater than such amount, the Indenture Trustee shall bid an amount at least $1.00 more than the highest other bid.
(d) In connection with a Sale of all or any portion of the Trust Estate
(1) any Holder or Holders of Notes may bid for and with the consent of the Credit Enhancer purchase the property offered for sale, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property, without further accountability, and may, in paying the purchase money therefor, deliver any Notes or claims for interest thereon in lieu of cash up to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon, and such Notes, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Holders thereof after being appropriately stamped to show such partial payment;
(2) the Indenture Trustee may bid for and acquire the property offered for Sale in connection with any Sale thereof, and, subject to any requirements of, and to the extent permitted by, applicable law in connection therewith, may purchase all or any portion of the Trust Estate in a private sale, and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting the gross Sale price against the sum of (A) the amount which would be distributable to the Holders of the Notes and Holders of Certificates and amounts owing to the Credit Enhancer as a result of such Sale in accordance with Section 5.04(b) on the Payment Date next succeeding the date of such Sale and (B) the expenses of the Sale and of any Proceedings in connection therewith which are reimbursable to it, without being required to produce the Notes in order to complete any such Sale or in order for the net Sale price to be credited against such Notes, and any property so acquired by the Indenture Trustee shall be held and dealt with by it in accordance with the provisions of this Indenture;
(3) the Indenture Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Trust Estate in connection with a Sale thereof;
(4) the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey its interest in any portion of the Trust Estate in connection with a Sale thereof, and to take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to ascertain the Indenture Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
No Pledge This Agreement shall not be deemed to represent a pledge of any interest in the Mortgage Loan by the Noteholders. Except as otherwise provided in this Agreement and the Servicing Agreement, no Non-Lead Noteholder shall have any interest in any property taken as security for the Mortgage Loan, provided, however, that if any such property or the proceeds of any sale, lease or other disposition thereof shall be received, then each Non-Lead Noteholder shall be entitled to receive its share of such application in accordance with the terms of this Agreement and/or the Servicing Agreement.
Opinions as to Indenture Trust Estate (a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Indenture as is necessary to perfect and make effective the lien and security interest of this Indenture and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(b) On or before December 31 in each calendar year, beginning in 2003, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture and any indentures supplemental hereto as is necessary to maintain the lien and security interest created by this Indenture and relating the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain such lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, recording and refiling of this Indenture and any indentures supplemental hereto that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture until December 31 in the following calendar year.
Release of Indenture Trust Estate (a) Subject to the payment of its fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee's interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7 have been paid in full, release any remaining portion of the Indenture Trust Estate that secured the Notes from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds then on deposit in the Trust Accounts. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if required by the TIA) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
(c) Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, acknowledges that from time to time the Indenture Trustee shall release the lien of this Indenture on any Receivable to be sold to (i) the Depositor in accordance with Section 2.3 of the Sale and Servicing Agreement and (ii) to the Servicer in accordance with Section 3.7 of the Sale and Servicing Agreement.
Sale of Trust Assets (a) [Reserved].
(b) As described in Article Nine of the Trust Agreement, notice of any termination of the Trust shall be given by the Servicer to the Owner Trustee and the Indenture Trustee as soon as practicable after the Servicer has received notice thereof.
(c) Following the satisfaction and discharge of the Indenture and the payment in full of the principal of and interest on the Notes, the Certificateholder will succeed to the rights of the Noteholders hereunder and the Owner Trustee will succeed to the rights of, and assume the obligations of, the Indenture Trustee pursuant to this Agreement.
The Guarantee Trustee SECTION 3.1. The Guarantee Trustee; Eligibility....................................................8 SECTION 3.2. Appointment, Removal and Resignation of the Guarantee Trustee.........................9 ARTICLE IV GUARANTEE SECTION 4.1. Guarantee.............................................................................9 SECTION 4.2. Waiver of Notice and Demand..........................................................10 SECTION 4.3. Obligations Not Affected.............................................................10
Trust Property 9.1 The aggregate proceeds of all Units issued from time to time after deducting Duties and Charges, Transactions Costs and any applicable Sales Load , shall constitute part of the Trust Property and includes the Investment and all income, profit and other benefits arising therefrom and all cash, bank balances and other assets and property of every description for the time being held or deemed to be held upon trust by the Trustee for the benefit of the Unit Holder(s) pursuant to this Deed but does not include any amount payable to the Unit Holders as distribution. However any profit earned on the amount payable to the Unit Holders as distribution shall become part of the Trust Property.
9.2 The income earned on the investments of pre IPO Investors upto the start of IPO may be paid to such investors either in cash or issue additional units for an amount equal to the income earned, as selected by such investors.
9.3 Bank accounts for the Fund shall always be in the name of the Trustee.
9.4 The Trust Property shall initially be constituted out of the proceeds received from investors till the time of Public Offering (PO) after deducting any applicable Duties and Charges, Transactions Costs and Front-end Loads therefrom.
9.5 All expenses incurred by the Trustee in effecting the registerable Investments in its name shall be payable out of the Trust Property.
9.6 Except as specifically provided in this Trust Deed, the Trust Property shall always be kept as separate property free from any mortgages, charges, liens or any other encumbrances whatsoever and the Trustee or the Custodian shall not, except for the purpose of the Scheme as directed by the Management Company, create or purport to create any mortgages, charges, liens or any other encumbrance whatsoever to secure any loan, guarantee or any other obligation actual or contingent incurred assumed or undertaken by the Trustee or the Custodian or any other person.
