INDENTURE
between
GREENPOINT MORTGAGE FUNDING TRUST 200[]-[___],
Issuing Entity
and
[------------------------],
Indenture Trustee
Dated as of [________________]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions....................................................................
Section 1.02. Incorporation by Reference of Trust Indenture Act..............................
Section 1.03. Rules of Construction..........................................................
ARTICLE II
THE NOTES
Section 2.01. Form...........................................................................
Section 2.02. Execution, Authentication and Delivery.........................................
Section 2.03. Limitations on Transfer of Certain Notes.......................................
Section 2.04. Registration; Registration of Transfer and Exchange............................
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes.....................................
Section 2.06. Persons Deemed Owners..........................................................
Section 2.07. Payment of Principal and Interest..............................................
Section 2.08. Cancellation...................................................................
Section 2.09. Release of Collateral..........................................................
Section 2.10. Book-Entry Notes...............................................................
Section 2.11. Notices to Clearing Agency.....................................................
Section 2.12. Definitive Notes...............................................................
Section 2.13. Tax Treatment..................................................................
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and Interest..............................................
Section 3.02. Maintenance of Office or Agency................................................
Section 3.03. Money for Payments to be Held in Trust.........................................
Section 3.04. Existence......................................................................
Section 3.05. Protection of Collateral.......................................................
Section 3.06. Opinions as to Collateral......................................................
Section 3.07. Performance of Obligations; Servicing of the Assistance Loans..................
Section 3.08. Negative Covenants.............................................................
Section 3.09. No Other Business..............................................................
Section 3.10. No Borrowing...................................................................
Section 3.11. Guarantees, Loans, Advances and Other Liabilities..............................
Section 3.12. Capital Expenditures...........................................................
Section 3.13. Restricted Payments............................................................
Section 3.14. Notice of Event of Default or Events of Servicing Termination..................
Section 3.15. Further Instruments and Acts...................................................
Section 3.16. Covenants of the Issuing Entity................................................
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture........................................
Section 4.02. Application of Trust Money.....................................................
Section 4.03. Repayment of Moneys Held by Paying Agent.......................................
ARTICLE V
REMEDIES
Section 5.01. Remedies.......................................................................
Section 5.02. Acceleration of Maturity; Rescission and Annulment.............................
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee......
Section 5.04. Priorities.....................................................................
Section 5.05. Optional Preservation of the Trust Estate......................................
Section 5.06. Limitation of Suits............................................................
Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest..........
Section 5.08. Restoration of Rights and Remedies.............................................
Section 5.09. Rights and Remedies Cumulative.................................................
Section 5.10. Delay or Omission Not a Waiver.................................................
Section 5.11. Control by Noteholders.........................................................
Section 5.12. Waiver of Past Defaults........................................................
Section 5.13. Undertaking for Costs..........................................................
Section 5.14. Waiver of Stay or Extension Laws...............................................
Section 5.15. Sale of Trust Estate...........................................................
Section 5.16. Action on Notes................................................................
Section 5.17. Performance and Enforcement of Certain Obligations.............................
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee....................................................
Section 6.02. Rights of Indenture Trustee....................................................
Section 6.03. Individual Rights of Indenture Trustee.........................................
Section 6.04. Indenture Trustee's Disclaimer.................................................
Section 6.05. Notice of Event of Default.....................................................
Section 6.06. Reports by Indenture Trustee to Holders........................................
Section 6.07. Compensation and Indemnity.....................................................
Section 6.08. Replacement of Indenture Trustee...............................................
Section 6.09. Successor Indenture Trustee by Merger..........................................
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee..............
Section 6.11. Eligibility; Disqualification..................................................
Section 6.12. Representations and Warranties.................................................
Section 6.13. Preferential Collection of Claims Against Issuing Entity.......................
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuing Entity To Furnish Indenture Trustee Names and Addresses of Noteholders.
Section 7.02. Preservation of Information; Communications to Noteholders.....................
Section 7.03. Reports by Issuing Entity......................................................
Section 7.04. Reports by Indenture Trustee...................................................
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money............................................................
Section 8.02. Trust Accounts and Certificate Account.........................................
Section 8.03. General Provisions Regarding Accounts..........................................
Section 8.04. Release of Collateral..........................................................
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.........................
Section 9.02. Supplemental Indentures with Consent of Noteholders............................
Section 9.03. Execution of Supplemental Indentures...........................................
Section 9.04. Effect of Supplemental Indenture...............................................
Section 9.05. Conformity with Trust Indenture Act............................................
Section 9.06. Reference in Notes to Supplemental Indentures..................................
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption.....................................................................
Section 10.02. Form of Redemption Notice......................................................
Section 10.03. Notes Payable on Optional Redemption Date......................................
ARTICLE XI
REMIC PROVISIONS
Section 11.01. Designation of REMIC Interests.................................................
Section 11.02. Payments on REMIC Regular Interests............................................
Section 11.03. Allocation of Realized Losses on the REMIC Regular Interests...................
Section 11.04. REMIC Administration...........................................................
Section 11.05. Prohibited Transactions and Activities.........................................
Section 11.06. Indemnification with Respect to Certain Taxes and Loss of REMIC Status.........
ARTICLE XII
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions, etc......................................
Section 12.02. Form of Documents Delivered to Indenture Trustee...............................
Section 12.03. Acts of Noteholders............................................................
Section 12.04. Notices, etc., to Indenture Trustee, Issuing Entity and Rating Agencies........
Section 12.05. Notices to Noteholders; Waiver.................................................
Section 12.06. Conflict with Trust Indenture Act..............................................
Section 12.07. Effect of Headings and Table of Contents.......................................
Section 12.08. Successors and Assigns.........................................................
Section 12.09. Severability...................................................................
Section 12.10. Benefits of Indenture and Consents of Noteholders..............................
Section 12.11. Legal Holidays.................................................................
Section 12.12. Governing Law..................................................................
Section 12.13. Counterparts...................................................................
Section 12.14. Recording of Indenture.........................................................
Section 12.15. Trust Obligations..............................................................
Section 12.16. No Petition....................................................................
Section 12.17. Inspection.....................................................................
EXHIBITS
EXHIBIT A Forms of Notes
EXHIBIT B [Reserved]
EXHIBIT C-1 Form of Transferor Certificate for Transfer of the Class B Notes
EXHIBIT C-2 Form of Transferee Certificate for Transfer of the Class B Notes
EXHIBIT D Form of ERISA Certification
EXHIBIT E Form of Back-Up Certification To Form 10-K Certificate
EXHIBIT F Form 10-D, Form 8-K and Form 10-K Reporting Responsibility
This Indenture (this "Indenture"), dated as of [____________], is by
and between GREENPOINT MORTGAGE FUNDING TRUST 200[_]-[___], a Delaware statutory
trust (the "Issuing Entity"), and [____________], a national banking
association, as indenture trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuing Entity's variable
rate Class A Notes, Mezzanine Notes and Class B Notes (the "Notes"):
As security for the payment and performance by the Issuing Entity of
its obligations under this Indenture and the Notes, the Issuing Entity has
agreed to assign the Collateral (as defined below) to the Indenture Trustee on
behalf of the Noteholders.
GRANTING CLAUSE
The Issuing Entity hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes,
a security interest in all of the Issuing Entity's right, title and interest,
whether now owned or hereafter acquired, in and to: (i) the Trust Estate (as
defined in the Sale and Servicing Agreement); (ii) the Issuing Entity's rights
and benefits but none of its obligations under the Sale and Servicing Agreement
(including the Issuing Entity's right to cause the Depositor to repurchase
Mortgage Loans from the Issuing Entity under the circumstances described
therein); (iii) the Issuing Entity's rights and benefits but none of its
obligations under the Administration Agreement; (iv) the Trust Accounts, all
amounts and property in the Trust Accounts from time to time, and the Security
Entitlements to all Financial Assets credited to the Trust Accounts from time to
time; (v) all other property of the Issuing Entity from time to time; and (vi)
all present and future claims, demands, causes of action and chooses in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes, and to
secure (i) the payment of all amounts due on the Notes in accordance with their
terms, (ii) the payment of all other sums payable under this Indenture with
respect to the Notes, and (iii) compliance with the provisions of this
Indenture, all as provided in this Indenture.
The Indenture Trustee, as indenture trustee on behalf of the Holders of
the Notes, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected.
Neither the Indenture Trustee nor the Issuing Entity assumes or shall
assume any obligation under any Credit Line Agreement that provides for the
funding of future Draws to the Mortgagor thereunder, and neither the Indenture
Trustee nor the Issuing Entity shall be obligated to fund any such future Draws.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth in Annex A to the Sale and Servicing Agreement for all
purposes of this Indenture.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuing Entity and any
other obligor on the indenture securities.
(b) All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by rule of the
Commission have the respective meanings assigned to them by such definitions.
Section 1.03. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular;
(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to
time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to
its permitted successors and assigns;
(vii) terms defined in the UCC and not otherwise defined
herein shall have the meaning assigned to them in the UCC; and
(viii) "U.S. dollars", "dollars", or the sign "$" shall be
construed as references to United States dollars which are freely
transferable by residents and non-residents of the United States of
America and convertible by such persons into any other freely
convertible currency unless such transferability or convertibility is
restricted by any law or regulation of general application in which
event references to "U.S. dollars", "dollars", or the sign "$" shall be
construed as references to such coin or currency of the United States
of America as at the time of payment shall be legal tender for the
payment of public and private debts in the United States of America,
and "cents" shall be construed accordingly.
ARTICLE II
THE NOTES
Section 2.01. Form. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set forth in
Exhibit A with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes and the global certificates ("Global Securities")
representing the Book-Entry Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibit A are part of the terms of this Indenture.
Section 2.02. Execution, Authentication and Delivery. The Notes shall
be executed on behalf of the Issuing Entity by any Authorized Officer of the
Owner Trustee or the Administrator. The signature of any such Authorized Officer
on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Owner Trustee or the Administrator shall
bind the Issuing Entity, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall, upon Issuing Entity Order, authenticate
and deliver the Notes for original issue in the following Initial Note Balances:
Class IA-1 $ [_________]
Class IIA-1a $ [_________]
Class IIA-1b $ [_________]
Class IIA-1c $ [_________]
Class IIA-2c $ [_________]
Class IIA-3c $ [_________]
Class IIA-4c $ [_________]
Class M-1 $ [_________]
Class M-2 $ [_________]
Class M-3 $ [_________]
Class M-4 $ [_________]
Class M-5 $ [_________]
Class M-6 $ [_________]
Class M-7 $ [_________]
Class M-8 $ [_________]
Class M-9 $ [_________]
Class M-10 $ [_________]
Class M-11 $ [_________]
Class B-1 $ [_________]
Class B-2 $ [_________]
The aggregate Note Balance of the Notes of each such Class Outstanding
at any time may not exceed such amounts.
The Notes will be issued in minimum principal amount denominations of
$25,000 and integral multiples of $1.00 in excess thereof; provided, that Notes
must be purchased in minimum total investments of $100,000.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.03. Limitations on Transfer of Certain Notes.
(a) No transfer, sale, pledge or other disposition of any Class B Note
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Class B Note is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the Note
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) a certificate from the Noteholder desiring
to effect such transfer in the form attached as Exhibit C-1 hereto and a
certificate from such Noteholder's prospective transferee in the form attached
as Exhibit C-2 hereto (which in the case of the Book-Entry Notes, the Noteholder
and the Noteholder's prospective transferee will be deemed to have represented
such certification). None of the Issuing Entity, the Depositor, the Indenture
Trustee, the Administrator, the Owner Trustee, the Servicer or the Note
Registrar is obligated to register or qualify any Class B Notes under the
Securities Act or any other securities law or to take any action not otherwise
required under this Indenture to permit the transfer of any Class B Note or
interest therein without registration or qualification. Any Noteholder desiring
to effect a transfer of Class B Notes or interests therein shall, and does
hereby agree to, indemnify the Issuing Entity, the Depositor, the Indenture
Trustee, the Administrator, the Owner Trustee, the Servicer and the Note
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(b) Each Holder or Note Owner of a Class B Note shall be deemed to have
represented and warranted to the Issuing Entity, the Indenture Trustee, the Note
Registrar and any of their respective successors that: (i) such Person (A) is a
QIB and (B) is purchasing such Notes for its own account or for the account of a
QIB to which notice is given that the transfer is being made in reliance on Rule
144A and (ii) such Person understands that such Notes have not been registered
under the Securities Act, and that if in the future it decides to offer, resell,
pledge or otherwise transfer such Notes, such Notes may be offered, resold,
pledged or otherwise transferred only (A) to a person which the seller
reasonably believes is a QIB, that is purchasing such Notes for its own account
or for the account of a QIB to which notice is given that the transfer is being
made in reliance on Rule 144A.
(c) No Class A Note or Mezzanine Note may be sold or transferred to a
Person unless such Person certifies in the form of Exhibit D to this Agreement
(which in the case of Notes which are Book-Entry Notes, such Person will be
deemed to have represented such certification), which certification the
Indenture Trustee may rely upon without further inquiry or investigation, that:
(i) Such Person is neither (A) an employee benefit plan, an
Xxxxxx MSA as described in Section 220(d) of the Code, an education
individual retirement account as described in Section 530 of the Code
or other retirement arrangement, including individual retirement
accounts and annuities, Xxxxx plans and collective investment funds and
separate accounts in which such plans, accounts or arrangements are
invested, including, without limitation, insurance company general
accounts, that is subject to ERISA or Section 4975 of the Code (each, a
"Plan"), nor (B) any Person who is directly or indirectly purchasing
such Note or interest therein on behalf of, as named fiduciary of, as
trustee of, or with "plan assets" (as defined under the DOL Regulation
at 29 C.F.R. Section 2510.3-101) of a Plan ("Plan Assets"); or
(ii) In the case of the Class A Notes and Mezzanine Notes,
such Person is a Plan or a Person purchasing such Note with "plan
assets" and represents that, as of the date of the transfer, (A) the
Notes are rated investment grade or better, (B) such Person believes
that the Notes are properly treated as indebtedness without substantial
equity features for purposes of the DOL Regulations, and agrees to so
treat the Notes and (C) the acquisition and holding of the Note will
not give rise to a nonexempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code; or
(iii) In the case of the Class A Notes and Mezzanine Notes,
such Person has provided the Indenture Trustee with an Opinion of
Counsel, which Opinion of Counsel will not be at the expense of the
Issuing Entity, the Trust, the Depositor or the Indenture Trustee,
which establishes to the satisfaction of the Indenture Trustee that the
purchase, holding and transfer of such Note or interest therein is
permissible under applicable law, will not constitute or result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the
Code and will not subject the Issuing Entity, the Trust, the Depositor
or the Indenture Trustee to any obligation in addition to those
undertaken in the Indenture.
(iv) The Class B Notes may not be purchased by a Plan or
person using Plan Assets.
(v) Notwithstanding the foregoing, neither an Opinion of
Counsel nor a certification will be required in connection with the
initial transfer of any such Note by the Depositor to an Affiliate of
the Depositor (in which case, the Depositor or any Affiliate thereof
shall be deemed to have represented that such Affiliate is not a Plan
or any Person investing "plan assets" of any Plan) and the Note
Registrar shall be entitled to conclusively rely upon a representation
(which, upon the request of the Note Registrar, shall be a written
representation) from the Depositor of the status of such transferee as
an Affiliate of the Depositor.
Section 2.04. Registration; Registration of Transfer and Exchange. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuing Entity shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties of
Note Registrar. The Note Registrar shall keep a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe and the
restrictions on transfers of the Notes set forth herein, the Issuing Entity
shall provide for the registration of Notes and the registration of transfers of
Notes.
If a Person other than the Indenture Trustee is appointed by the
Issuing Entity as Note Registrar, the Issuing Entity will give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and of
the location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and the Indenture Trustee shall
have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such Notes.
Subject to Section 2.03, upon surrender for registration of transfer of
any Note at the office or agency of the Issuing Entity to be maintained as
provided in Section 3.02, the Issuing Entity shall execute, and the Indenture
Trustee shall authenticate and the Noteholder shall be entitled to obtain from
the Indenture Trustee, in the name of the designated transferee or transferees,
one or more new Notes in any authorized denominations, of a like aggregate
principal amount.
At the option of the Holder, Notes may be exchanged for other Notes in
any authorized denominations, of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuing Entity shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall be entitled to
obtain from the Indenture Trustee, the Notes which the Noteholder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuing Entity, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuing Entity or the Note Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.05 not involving
any transfer.
The preceding provisions of this Section 2.04 notwithstanding, the
Issuing Entity shall not be required to make and the Note Registrar need not
register transfers or exchanges of Notes selected for redemption or of any Note
for a period of 15 days preceding the due date for any payment with respect to
such Note.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuing Entity and the Indenture
Trustee harmless, then, in the absence of actual notice to the Issuing Entity,
the Note Registrar or the Indenture Trustee that such Note has been acquired by
a bona fide purchaser, and upon certification provided by the Holder of such
Note that the requirements of Section 8-405 of the UCC are met, the Issuing
Entity shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note; PROVIDED, HOWEVER, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable, or shall have been called
for redemption, instead of issuing a replacement Note, the Issuing Entity may
pay such destroyed, lost or stolen Note when so due or payable or upon the
Optional Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuing Entity and the Indenture Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuing Entity or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 2.05, the
Issuing Entity, the Indenture Trustee or the Note Registrar may require the
payment by the Holder of such Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Indenture Trustee)
connected therewith.
Every replacement Note issued pursuant to this Section 2.05 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuing Entity, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.05 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuing Entity and the Indenture
Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat
the Person in whose name any Note is registered (as of the day of determination)
as the owner of such Note for the purpose of receiving payments of principal of
and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the Issuing Entity or the
Indenture Trustee or any agent of the Issuing Entity or the Indenture Trustee
shall be affected by notice to the contrary.
Section 2.07. Payment of Principal and Interest. (a) The Notes shall
accrue interest at the applicable Note Rate as set forth in the Sale and
Servicing Agreement, and such interest shall be payable on each Payment Date,
subject to Section 3.01. Interest shall be computed on the Notes on the basis of
a 360-day year and the actual number of days elapsed in each Accrual Period.
With respect to the Notes, the Indenture Trustee shall determine LIBOR for each
applicable Accrual Period on the second LIBOR Business Day prior thereto, in
accordance with the provisions of the Sale and Servicing Agreement. All interest
payments on each Class of Notes shall be made PRO RATA to the Noteholders of
such Class entitled thereto. Any installment of interest or principal payable on
the Notes shall be paid on the applicable Payment Date to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the Record
Date by check mailed first-class postage prepaid to such Person's address as it
appears on the Note Register on such Record Date or, upon written request made
to the Indenture Trustee at least five Business Days prior to the related Record
Date, by the Holder of any Note by wire transfer in immediately available funds
to an account specified in the request and at the expense of such Noteholder,
except that, unless Definitive Notes have been issued pursuant to Section 2.10,
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payment will
be made by wire transfer in immediately available funds to the account
designated by such nominee, except for the final installment of principal
payable with respect to such Note on a Payment Date, on the applicable Final
Stated Maturity Date for the Notes or on the Optional Redemption Date if the
Notes are called for redemption pursuant to Section 10.01, which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.03.
(b) The principal of the Notes shall be payable in installments on each
Payment Date as provided herein and in the Notes, subject to Section 3.01.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable, if not previously paid, on the date on which an Event
of Default shall have occurred and be continuing. All principal payments on the
Notes of each Class shall be made PRO RATA to the Noteholders entitled thereto.
The Indenture Trustee shall notify the Person in whose name a Note is registered
at the close of business on the Record Date preceding the Payment Date on which
the Issuing Entity expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed or transmitted
by facsimile no later than one Business Day prior to such final Payment Date and
shall specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment.
Section 2.08. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuing Entity may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuing Entity may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section 2.08,
except as expressly permitted by this Indenture. All cancelled Notes may be held
or disposed of by the Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless the Issuing Entity
shall direct by an Issuing Entity Order that they be destroyed or returned to
it; PROVIDED, that such Issuing Entity Order is timely and the Notes have not
been previously disposed of by the Indenture Trustee.
Section 2.09. Release of Collateral. (a) Except as otherwise provided
in subsections (b) and (c) of this Section 2.09 and the terms of the Operative
Agreements, the Indenture Trustee shall release property from the lien of this
Indenture only upon receipt by it of an Issuing Entity Request accompanied by
(i) an Officer's Certificate, (ii) an Opinion of Counsel, (iii)(A) Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or (B) an
Opinion of Counsel in lieu of such Independent Certificates to the effect that
the TIA does not require any such Independent Certificates; PROVIDED that no
such Independent Certificates or Opinion of Counsel in lieu of such Independent
Certificates shall be necessary in respect of property released from the lien of
the Indenture in accordance with the provisions hereof if such property consists
solely of cash.
(b) The Originator, the Servicer or the Redeemer, as applicable, on
behalf of the Issuing Entity, shall be entitled to obtain a release from the
lien of this Indenture for any Mortgage Loan and the Mortgaged Property at any
time (i) after a payment by the Originator of the Loan Purchase Price of the
Mortgage Loan, (ii) after a Qualifying Substitute Mortgage Loan is substituted
for such Mortgage Loan and payment of the Substitution Amount, if any, (iii)
after liquidation of the Mortgage Loan in accordance with the Sale and Servicing
Agreement and the deposit of all Liquidation Proceeds and Insurance Proceeds in
the Collection Account, (iv) upon the termination of a Mortgage Loan (due to,
among other causes, a prepayment in full of the Mortgage Loan and sale or other
disposition of the related Mortgaged Property) or (v) as contemplated by Section
8.02 of the Sale and Servicing Agreement.
(c) The Indenture Trustee shall, if requested by the Servicer,
temporarily release to such party the Mortgage File pursuant to the provisions
of Section 4.07 of the Sale and Servicing Agreement.
Section 2.10. Book-Entry Notes. The Notes will be issued in the form of
typewritten Notes representing the Book-Entry Notes, to be delivered to, or to
the Indenture Trustee as custodian for, the initial Clearing Agency, by, or on
behalf of, the Issuing Entity. The Class B Notes offered and sold in reliance on
the exemption from registration under Rule 144A shall be issued initially in the
form of one or more Global Securities with the applicable legends set forth in
Exhibit A added to the forms of such Notes. The Book-Entry Notes shall be
registered initially on the Note Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Owner thereof will receive a Definitive
Note representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12:
(i) the provisions of this Section 2.10 shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the
sole holder of the Notes, and shall have no obligation to the Note
Owners;
(iii) to the extent that the provisions of this Section 2.10
conflict with any other provisions of this Indenture, the provisions of
this Section 2.10 shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants pursuant to the Note Depository
Agreement. Unless and until Definitive Notes are issued pursuant to
Section 2.12, neither the Indenture Trustee nor the Note Registrar
shall register any transfer of a beneficial interest in a Book-Entry
Note; and the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Balance of the
Notes, the Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such effect
from Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Notes and has delivered such instructions to the
Indenture Trustee.
Section 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communications to
the Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.12. Definitive Notes. If (i) the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Notes and the Issuing Entity is unable to locate a qualified
successor or (ii) after the occurrence of an Event of Default, Note Owners of
the Book-Entry Notes representing beneficial interests aggregating at least a
majority of the Outstanding Balance of the Book-Entry Notes advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of such Note Owners, then the
Clearing Agency shall notify all Note Owners and the Indenture Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuing Entity shall execute and
the Indenture Trustee shall authenticate the Definitive Notes in accordance with
the instructions of the Clearing Agency. None of the Issuing Entity, the Note
Registrar or the Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
Section 2.13. Tax Treatment. The Issuing Entity has made one or more
REMIC elections pursuant to the Trust Agreement and the Notes will constitute
REMIC regular interests.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and Interest. The Issuing Entity
will duly and punctually pay (or will cause to be duly and punctually paid) the
principal of and interest on the Notes in accordance with the terms of the Notes
and this Indenture. Without limiting the foregoing and in accordance with
Section 8.02(b), the Issuing Entity will cause to be paid on each Payment Date
all amounts on deposit in the Payment Account, and deposited therein pursuant to
the Sale and Servicing Agreement for the benefit of the Notes, to the
Noteholders. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuing Entity to such Noteholder for all purposes of
this Indenture.
The Notes shall be non-recourse obligations of the Issuing Entity and
shall be limited in right of payment to amounts available from the Collateral as
provided in this Indenture. The Issuing Entity shall not otherwise be liable for
payments of the Notes, and none of the owners, agents, officers, directors,
employees, or successors or assigns of the Issuing Entity shall be personally
liable for any amounts payable, or performance due, under the Notes or this
Indenture. If any other provision of this Indenture shall be deemed to conflict
with the provisions of this Section 3.01, the provisions of this Section 3.01
shall control.
Section 3.02. Maintenance of Office or Agency. The Note Registrar on
behalf of the Issuing Entity will maintain an office or agency where Notes may
be surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuing Entity in respect of the Notes and this Indenture
may be served.
Section 3.03. Money for Payments to be Held in Trust. As provided in
Section 8.02, all payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Payment Account pursuant to
Article V of the Sale and Servicing Agreement shall be made on behalf of the
Issuing Entity by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from such accounts for payments of Notes shall be paid over
to the Issuing Entity except as provided in this Section 3.03. The Issuing
Entity hereby appoints the Indenture Trustee as its Paying Agent. The Paying
Agent shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuing Entity of which the Paying Agent has actual knowledge in the
making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be met
by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; PROVIDED,
HOWEVER, that with respect to reporting requirements applicable to
original issue discount, the accrual of market discount or the
amortization of premium on the Notes, the Issuing Entity shall have
first provided the calculations pertaining thereto and the amount of
any resulting withholding taxes to the Indenture Trustee.
The Issuing Entity may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuing Entity Order direct any Paying Agent to pay to the Indenture Trustee all
sums held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to the Notes and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuing Entity on Issuing Entity Request; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuing Entity for payment thereof (but only to the extent of the amounts so
paid to the Issuing Entity), and all liability of the Indenture Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; PROVIDED,
HOWEVER, that the Indenture Trustee or such Paying Agent, before being required
to make any such repayment, shall at the expense and direction of the Issuing
Entity cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York (including, but not limited to, THE BOND BUYER), notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuing
Entity. The Indenture Trustee shall also adopt and employ, at the expense and
direction of the Issuing Entity, any other reasonable means of notification of
such repayment (including, but not limited to, mailing notice of such repayment
to Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
Section 3.04. Existence. (a) The Issuing Entity will keep in full
effect its existence, rights and franchises as a statutory trust under the laws
of the State of Delaware (unless it becomes, or any successor Issuing Entity
hereunder is or becomes, organized under the laws of any other State or of the
United States of America, in which case the Issuing Entity will keep in full
effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to Section
9.03 of the Trust Agreement shall be the successor Owner Trustee under this
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the
Owner Trustee, the Person succeeding to the Owner Trustee under the Trust
Agreement may exercise every right and power of the Owner Trustee under this
Indenture with the same effect as if such Person had been named as the Owner
Trustee herein.
Section 3.05. Protection of Collateral. The Issuing Entity will from time to
time execute, deliver and file all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any rights with respect to the Collateral; or
(iv) preserve and defend title to the Collateral and the
rights of the Indenture Trustee, the Noteholders in such Collateral
against the claims of all persons and parties.
The Issuing Entity hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation statement
or other instrument required to be executed pursuant to this Section 3.05 and
hereby authorizes the Indenture Trustee (who is not obligated to make such
filings) to file in any filing office any financing statement, amendment to
financing statement, or continuation statement required to be executed pursuant
to this Section 3.05. All such filings will be made by the Administrator on
behalf of the Issuing Entity.
Section 3.06. Opinions as to Collateral. On the Closing Date, the
Issuing Entity shall furnish to the Administrator and the Indenture Trustee an
Opinion of Counsel to the effect that either, in the opinion of such counsel,
such action has been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to make effective the
lien and security interest of this Indenture, or stating that, in the opinion of
such counsel, no such action is necessary to make such lien and security
interest effective.
Section 3.07. Performance of Obligations; Servicing of the Assistance
Loans. (a) The Issuing Entity will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Sale and Servicing Agreement or such
other instrument or agreement.
(b) The Issuing Entity may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuing Entity shall be deemed to be action taken by the Issuing Entity.
Initially, the Issuing Entity has contracted with the Administrator to assist
the Issuing Entity in performing its duties under this Indenture.
(c) The Issuing Entity will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Operative Agreements
and in the instruments and agreements included in the Collateral, including but
not limited to filing or causing to be filed all financing statements and
continuation statements required to be filed by the terms of this Indenture and
the Sale and Servicing Agreement in accordance with and within the time periods
provided for herein and therein.
(d) If a responsible officer of the Owner Trustee shall have written
notice or actual knowledge of the occurrence of an Event of Default or an Event
of Servicing Termination under the Sale and Servicing Agreement, the Issuing
Entity shall promptly notify the Indenture Trustee and each Rating Agency
thereof.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 7.01(a)
of the Sale and Servicing Agreement, the Indenture Trustee shall proceed in
accordance with Section 7.01 and 7.02 of the Sale and Servicing Agreement.
(f) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuing Entity agrees (i) that it will not
amend, modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of, the
terms of any Collateral or without the consent of the Indenture Trustee, the
Operative Agreements to which the Indenture Trustee is a party (except to the
extent otherwise provided in any such Operative Agreement), or waive timely
performance or observance by the Seller, the Servicer or the Depositor of its
respective duties under the Sale and Servicing Agreement; and (ii) that any such
amendment shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, payments that are required to be made for the
benefit of the Noteholders or (B) reduce the aforesaid percentage of the Notes
that is required to consent to any such amendment, without the consent of the
Holders of all the Outstanding Notes affected thereby. If any such amendment,
modification, supplement or waiver shall be so consented to by the Indenture
Trustee or such Holders, the Issuing Entity agrees, promptly following a request
by the Indenture Trustee to do so, to execute and deliver, in its own name and
at its own expense, such agreements, instruments, consents and other documents
as may be deemed necessary or appropriate in the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are Outstanding,
the Issuing Entity shall not:
(i) except as expressly permitted by this Indenture or the
Sale and Servicing Agreement, sell, transfer, exchange or otherwise
dispose of any of the properties or assets of the Issuing Entity unless
directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the
Collateral;
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as may be expressly
permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or
the proceeds thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law, in each case with respect to any
Collateral and arising solely as a result of an action or omission of a
Borrower or as otherwise permitted in the Sale and Servicing Agreement)
or (C) permit the lien of this Indenture not to constitute a valid
first priority (other than with respect to any such tax, mechanics' or
other lien or as otherwise permitted in the Sale and Servicing
Agreement) security interest in the Collateral;
(iv) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person;
(v) remove the Administrator without cause unless the Rating
Agency Condition shall have been satisfied in connection with such
removal;
(vi) take any other action or fail to take any action that
would result in an imposition of tax on the Issuing Entity (including,
but not limited to, the tax on prohibited transactions under Section
860L(e) of the Code); or
(vii) except with the prior written consent of the
Noteholders, take any action described in Section 5.05 of the Trust
Agreement.
Section 3.09. No Other Business. The Issuing Entity shall not engage in
any business other than financing, purchasing, owning, selling and managing the
Collateral in the manner contemplated by this Indenture and the Operative
Agreements and activities incidental thereto.
Section 3.10. No Borrowing. The Issuing Entity shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness other than the Notes.
Section 3.11. Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by the Sale and Servicing Agreement or this Indenture, the
Issuing Entity shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 3.12. Capital Expenditures. The Issuing Entity shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personally).
Section 3.13. Restricted Payments. The Issuing Entity shall not,
directly or indirectly, (i) pay any dividend or make any payment (by reduction
of capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuing Entity or otherwise with respect to any ownership or equity interest or
security in or of the Issuing Entity, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; PROVIDED,
HOWEVER, the Issuing Entity may make, or cause to be made, payments and
distributions as contemplated by, and to the extent funds are available for such
purpose under, the Sale and Servicing Agreement, this Indenture or the Trust
Agreement. The Issuing Entity will not, directly or indirectly, make payments to
or from the Collection Account except in accordance with this Indenture and the
Operative Agreements.
Section 3.14. Notice of Event of Default or Events of Servicing
Termination. The Issuing Entity shall promptly, and in no event more than three
Business Days following such event, give the Indenture Trustee and each Rating
Agency written notice of any Event of Default or any Event of Servicing
Termination under the Sale and Servicing Agreement, and each default on the part
of the Servicer or the Depositor of its obligations under the Sale and Servicing
Agreement, to the extent a responsible officer of the Owner Trustee shall have
written notice or actual knowledge thereof.
Section 3.15. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuing Entity will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
Section 3.16. Covenants of the Issuing Entity. All covenants of the
Issuing Entity in this Indenture are covenants of the Issuing Entity and are not
covenants of the Owner Trustee in its individual capacity. The Owner Trustee is,
and any successor Owner Trustee under the Trust Agreement will be, entering into
this Indenture on behalf of the Issuing Entity solely as Owner Trustee under the
Trust Agreement and not in its respective individual capacity, and in no case
whatsoever shall the Owner Trustee or any such successor Owner Trustee be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties or obligations of the Issuing Entity hereunder, as
to all of which the parties hereto agree to look solely to the property of the
Issuing Entity.
Section 3.17. Representations and Warranties of the Issuing Entity.
(a) With respect to that portion of the Collateral described in clauses
(a) through (d) of the definition of Trust Estate, the Issuing Entity represents
to the Indenture Trustee that:
(i) This Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral in favor
of the Indenture Trustee, which security interest is prior to all other
liens, and is enforceable as such as against creditors of and
purchasers from the Issuing Entity.
(ii) The Collateral constitutes "deposit accounts" or
"instruments," as applicable, within the meaning of the applicable UCC.
(iii) The Issuing Entity owns and has good and marketable
title to the Collateral, free and clear of any lien, claim or
encumbrance of any Person.
(iv) The Issuing Entity has taken all steps necessary to cause
the Indenture Trustee to become the account holder of the Collateral.
(v) Other than the security interest granted to the Indenture
Trustee pursuant to this Indenture, the Issuing Entity has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Collateral.
(vi) The Collateral is not in the name of any Person other
than the Issuing Entity or the Indenture Trustee. The Issuing Entity
has not consented to the bank maintaining the Collateral to comply with
instructions of any Person other than the Indenture Trustee.
(b) With respect to that portion of the Collateral described in clause
(e), the Issuing Entity represents to the Indenture Trustee that:
(i) This Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral in favor
of the Indenture Trustee, which security interest is prior to all other
liens, and is enforceable as such as against creditors of and
purchasers from the Issuing Entity.
(ii) The Collateral constitutes "general intangibles" within
the meaning of the applicable UCC.
(iii) The Issuing Entity owns and has good and marketable
title to the Collateral, free and clear of any lien, claim or
encumbrance of any Person.
(iv) Other than the security interest granted to the Indenture
Trustee pursuant to this Indenture, the Issuing Entity has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Collateral.
(c) The representations and warranties set forth in this Section 3.18
shall survive the Closing Date and shall not be waived.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. Upon payment in
full to each Noteholder of all amounts due on the Notes, this Indenture shall
cease to be of further effect with respect to the Notes, except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) the rights and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture Trustee under
Section 6.07) and the obligations of the Indenture Trustee under Sections 3.03
and 4.02 and (v) the rights of Noteholders as beneficiaries hereof with respect
to the property so deposited with the Indenture Trustee payable to all or any of
them, and the Indenture Trustee, on demand of and at the expense of the Issuing
Entity, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when either
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.05 and (ii) Notes for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Issuing Entity and thereafter repaid to the Issuing Entity or discharged
from such trust, as provided in Section 3.03) have been delivered to the
Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation (a) have become due and payable, (b) will become due
and payable at the applicable Final Stated Maturity Date within one year, or (c)
are to be called for redemption within one year under arrangements satisfactory
to the Indenture Trustee for the giving of notice of redemption by the Indenture
Trustee in the name, and at the expense, of the Issuing Entity, and the Issuing
Entity, in the case of (a), (b) or (c) above, has irrevocably deposited or
caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee for cancellation
when due on the Final Stated Maturity Date or Optional Redemption Date (if the
Notes are called for redemption pursuant to Section 10.01 hereof), as the case
may be;
(i) the Issuing Entity has paid or caused to be paid all
Indenture Trustee Issuing Entity Secured Obligations;
(ii) the Issuing Entity has delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel (at the Issuing
Entity's expense) and (if required by the TIA or the Indenture Trustee)
an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.01 hereof and,
subject to Section 11.02 hereof, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Notes have been
complied with; and
(iii) the Issuing Entity has delivered to each Rating Agency
notice of such satisfaction and discharge.
Section 4.02. Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Sections 3.03 and 4.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Sale and Servicing Agreement or required by
law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuing Entity, be paid to the Indenture Trustee to be held and applied
according to Section 3.03 and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
ARTICLE V
REMEDIES
Section 5.01. Remedies. The Issuing Entity shall deliver to the
Indenture Trustee, written notice in the form of an Officer's Certificate,
within five days after learning of the occurrence of any event which with the
giving of notice and the lapse of time would become an Event of Default under
clause (ii), (iii) or (iv) of the definition of "Event of Default," its status
and what action the Issuing Entity is taking or proposes to take with respect
thereto. The Indenture Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer has actual knowledge thereof or
unless written notice of such Event of Default is received by a Responsible
Officer and such notice references the Notes, the Trust Estate or this
Indenture.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee at the written direction of the Holders of Notes representing
not less than a majority of the aggregate Note Balance of the Notes, declare the
Notes to be immediately due and payable, by a notice in writing to the Issuing
Entity (and to the Indenture Trustee if such notice is given by the
Noteholders), and upon any such declaration the unpaid aggregate Note Balance,
together with accrued and unpaid interest thereon through the date of
acceleration shall become immediately due and payable.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, Holders of the Notes representing not
less than a majority of the aggregate Note Balance of the Notes, by written
notice to the Issuing Entity and the Indenture Trustee, may waive the related
Event of Default and rescind and annul such declaration and its consequences if
(i) the Issuing Entity has paid or deposited with the Indenture
Trustee a sum sufficient to pay (a) all payments of principal of and
interest on the Notes and all other amounts that would then be due
hereunder or upon the Notes if the Event of Default giving rise to such
acceleration had not occurred; and (b) all sums paid or advanced by the
Indenture Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and
counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuing Entity covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, the Issuing Entity shall, upon demand of the
Indenture Trustee, at the direction of the Holders of a majority of the
aggregate Note Balance of the Notes, pay to the Indenture Trustee, for the
benefit of the Holders of Notes, the whole amount then due and payable on the
Notes for principal and interest, with interest at the applicable Note Rate upon
the overdue principal, and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuing Entity shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, and may prosecute such Proceeding to judgment or final decree, and
may enforce the same against the Issuing Entity or other obligor upon the Notes
and collect in the manner provided by law out of the property of the Issuing
Entity or other obligor the Notes, wherever situated, the monies adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.04 hereof, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings, as directed in writing by Holders
of a majority of the aggregate Note Balance of the Notes, to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right vested
in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuing Entity or
any other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuing Entity or its property or such
other obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuing Entity or other obligor upon the Notes, or to the
creditors or property of the Issuing Entity or such other obligor, the Indenture
Trustee, as directed in writing by Holders of a majority of the aggregate Note
Balance of the Notes, irrespective of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuing Entity, its creditors and its property; and any
trustee, receiver, liquidator, custodian or other similar official in any
such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Indenture Trustee.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes, subject to Section 5.05 hereof.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
Section 5.04. Priorities.
(a) If an Event of Default shall have occurred and be continuing and if
an acceleration has been declared and not rescinded pursuant to Section 5.02
hereof, the Indenture Trustee may, and shall, at the written direction of the
Holders of a majority of the aggregate Note Balance of the Notes, do one or more
of the following (subject to Section 5.05 hereof):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this Indenture with respect thereto, whether by declaration or otherwise
enforce any judgment obtained, and collect from the Issuing Entity and any
other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; PROVIDED, HOWEVER, that the
Indenture Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, unless (A) the Indenture Trustee obtains the
consent of the Holders of 100% of the aggregate Note Balance of the Notes,
(B) the proceeds of such sale or liquidation distributable to the Holders
of the Notes are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest or (C) the Indenture
Trustee determines that the Mortgage Loans will not continue to provide
sufficient funds for the payment of principal of and interest on the
applicable Notes as they would have become due if the Notes had not been
declared due and payable, and the Indenture Trustee obtains the consent of
the Holders of a majority of the aggregate Note Balance of the Notes. In
determining such sufficiency or insufficiency with respect to clause (B)
and (C), the Indenture Trustee may, but need not, obtain and rely upon
written advice or an opinion (obtained at the expense of the Trust) of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose. Notwithstanding the foregoing, so long as a
Event of Servicing Termination has not occurred, any sale of the Trust
Estate shall be made subject to the continued servicing of the Mortgage
Loans by the Servicer as provided in the Sale and Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
(i) to the Indenture Trustee for amounts due under Section 6.07 hereof
and to the Owner Trustee for amounts due pursuant to Article VII of the
Trust Agreement;
(ii) to the Noteholders (in the order set forth in Section 5.03 of the
Sale and Servicing Agreement) for amounts due and unpaid on the Notes with
respect to interest;
(iii) to the Noteholders (in the order set forth in Section 5.03 of
the Sale and Servicing Agreement) for amounts due and unpaid on the Notes
with respect to principal;
(iv) to the Noteholders (in the order set forth in Section 5.03 of the
Sale and Servicing Agreement) for the amount of any related Allocated
Realized Loss Amount;
(v) to the Noteholders (in the order set forth in Section 5.03 of the
Sale and Servicing Agreement) for amounts due and unpaid on the Notes with
respect to any related Net WAC Rate Carryover Amount; and
(vi) to the payment of the remainder, if any to the Certificate Paying
Agent on behalf of the Issuing Entity or to any other person legally
entitled thereto.
The Indenture Trustee may fix a record date and Payment Date for any
payment to Noteholders pursuant to this Section 5.04. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder a notice
that states the record date, the Payment Date and the amount to be paid.
Section 5.05. Optional Preservation of the Trust Estate. If the Notes
have been declared to be due and payable under Section 5.02 following an Event
of Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may elect to take and maintain possession of the
Trust Estate. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes and other obligations of the Issuing Entity and the
Indenture Trustee shall take such desire into account with respect to whether or
not to take and maintain possession of the Trust Estate. With respect to whether
and how to take and maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon the written advice or an opinion
of an Independent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 50% of the aggregate Note Balance of
the Notes have made written request to the Indenture Trustee to institute
such proceeding with respect to the Notes in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
proceedings; and
(v) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of 50% of
the aggregate Note Balance of the Notes;
it being understood and intended that no Holder of Notes shall have any right in
any manner whatsoever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Notes or to obtain or to seek to obtain priority or preference over any other
Holder or to enforce any right under this Indenture, except in the manner herein
provided.
Section 5.07. Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the Issuing Entity, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such proceeding had been
instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Indenture
Trustee or to the Noteholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as
the case may be.
Section 5.11. Control by Noteholders. The Holders of a majority of the
aggregate Note Balance of Notes shall have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) any direction to the Indenture Trustee to sell or liquidate the
Trust Estate shall be by Holders of Notes representing not less than 100%
of the Note Balances of the Notes;
(iii) the Indenture Trustee has been provided with indemnity
satisfactory to it; and
(iv) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction of the
Holders of Notes representing a majority of the Note Balances of the Notes.
Notwithstanding the rights of Noteholders set forth in this Section
5.11 the Indenture Trustee need not take any action that it determines might
involve it in liability.
Section 5.12. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02 hereof,
the Holders of Notes representing not less than a majority of the aggregate Note
Balance of the Notes may waive any past Event of Default and its consequences
except an Event of Default (a) with respect to payment of principal of or
interest on any of the Notes or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note. In the case of any such waiver, the Issuing Entity, the Indenture Trustee
and the Holders of the Notes shall be restored to their former positions and
rights hereunder, respectively, but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the Note
Balances of the Notes or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture.
Section 5.14. Waiver of Stay or Extension Laws. The Issuing Entity
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuing Entity (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15. 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 hereof is expressly subject
to the provisions of Section 5.05 hereof 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 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
(i) the Holders of all Notes consent to or direct the Indenture
Trustee to make, such Sale, or
(ii) the proceeds of such Sale would be not less than the entire
amount which would be payable to the Noteholders under the Notes, in full
payment thereof in accordance with Section 5.02 hereof, on the Payment Date
next succeeding the date of such Sale, or
(iii) it is determined that the conditions for retention of the Trust
Estate set forth in Section 5.05 hereof cannot be satisfied (with respect
to which the Indenture Trustee may rely upon written advice or an opinion
of an Independent investment banking firm obtained and delivered as
provided in Section 5.05 hereof), the Holders of Notes representing at
least 100% of the Note 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) In connection with a Sale of all or any portion of the Trust
Estate,
(i) any Holder or Holders of Notes may bid for and 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;
(ii) 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 payable to the Holders of the
Notes and Holders of Certificates 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;
(iii) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance, prepared by the Issuing Entity and satisfactory
to the Indenture Trustee, transferring its interest in any portion of the
Trust Estate in connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuing Entity 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
(v) 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.
Section 5.16. Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuing Entity or
by the levy of any execution under such judgment upon any portion of the
Collateral or upon any of the assets of the Issuing Entity.
Section 5.17. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Servicer's or Seller's expense, as applicable, the Issuing Entity
agrees to take all such lawful action as the Indenture Trustee may request to
compel or secure the performance and observance by the Seller and the Servicer,
as applicable, of each of their obligations to the Issuing Entity under or in
connection with the Sale and Servicing Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuing Entity under or in connection with the Sale
and Servicing Agreement to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part
of the Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their respective obligations under the Sale
and Servicing Agreement.
(b) The Indenture Trustee, as pledgee of the Mortgage Loans, may, and
at the direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Holders of 66-2/3% of the Note Balances
of the Notes, shall, exercise all rights, remedies, powers, privileges and
claims of the Issuing Entity against the Seller or the Servicer under or in
connection with the Operative Agreements, including the right or power to take
any action to compel or secure performance or observance by the Seller, the
Depositor or the Servicer of each of their obligations to the Issuing Entity
under the Operative Agreements and to give any consent, request, notice,
direction, approval, extension or waiver under the Operative Agreements, and any
right of the Issuing Entity to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform on their face to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, its own willful
misconduct or its own bad faith, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with this
Indenture or upon a direction received by it from the requisite Noteholders
pursuant to Article V; and
(iv) the Indenture Trustee shall not be required to take notice or be
deemed to have notice or knowledge of (a) any failure by the Issuing Entity
to comply with its obligations hereunder or in the Operative Agreements or
(b) any Event of Default, unless a Responsible Officer of the Indenture
Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such Event of Default or shall have received written
notice thereof. In the absence of such actual knowledge or written notice,
the Indenture Trustee may conclusively assume that there is no Event of
Default.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to the provisions of this Section 6.01.
(e) The Indenture Trustee shall not be liable for indebtedness
evidenced by or arising under any of the Operative Agreements, including
principal of or interest on the Notes, or interest on any money received by it
except as the Indenture Trustee may agree in writing with the Issuing Entity.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend, advance or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture or any Operative Agreement
relating to the conduct or affecting the liability of or affording protection to
the Indenture Trustee shall be subject to the provisions of this Section 6.01,
Section 6.02 and to the provisions of the TIA.
(i) The Indenture Trustee shall execute and deliver the Sale and
Servicing Agreement and such other documents and instruments as shall be
necessary or appropriate in accordance with its duties and obligations under
this Indenture.
(j) The Indenture Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Collateral, or to otherwise take or refrain from taking
any action under, or in connection with, any document contemplated hereby to
which the Indenture Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the
Indenture Trustee pursuant to this Indenture or any other Operative Agreement,
and (ii) in accordance with any document or instruction delivered to the
Indenture Trustee pursuant to the terms of this Indenture; and no implied duties
or obligations shall be read into this Indenture or any Operative Agreement
against the Indenture Trustee. The Indenture Trustee agrees that it will, at its
own cost and expense, promptly take all action as may be necessary to discharge
any liens on any part of the Collateral that result from actions by, or claims
against itself that are not related to the administration of the Collateral.
(k) In order to comply with its duties under U.S.A. Patriot Act, the
Indenture Trustee shall obtain and verify certain information and documentation
from the other party hereto, including, but not limited to, such party's name,
address, and other indentifying information.
Section 6.02. Rights of Indenture Trustee. (a) The Indenture Trustee
may rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel, which shall not be at
the expense of the Indenture Trustee. The Indenture Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on an
Officer's Certificate or Opinion of Counsel. The right of the Indenture Trustee
to perform any discretionary act enumerated in this Indenture or in any
Operative Agreement shall not be construed as a duty and the Indenture Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder, either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and shall not
be responsible for any willful misconduct or negligence on the part of any
agent, attorney, custodian or nominee so appointed.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Indenture Trustee may consult with counsel, and any Opinion of
Counsel with respect to legal matters relating to this Indenture, any Operative
Agreement and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with any Opinion of Counsel of such
counsel.
(f) In the event that the Indenture Trustee is also acting as Paying
Agent, Note Registrar or Administrator hereunder or under any Operative
Agreement, the rights and protections afforded to the Indenture Trustee pursuant
to this Article VI shall be afforded to such Paying Agent, Note Registrar and
Administrator.
(g) The Indenture Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Indenture Trustee's
economic self-interest for (i) serving as investment adviser, administrator,
shareholder, servicing agent, custodian or sub-custodian with respect to certain
of the Eligible Investments, (ii) using Affiliates to effect transactions in
certain Eligible Investments and (iii) effecting transactions in certain
Eligible Investments. Such compensation shall not be considered an amount that
is reimbursable or payable to the Indenture Trustee (i) pursuant to this
Indenture or (iii) out of Available Funds.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuing Entity or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Section 6.11.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of any of the Operative Agreements or the Notes or the sufficiency of
the Collateral; it shall not be accountable for the Issuing Entity's use of the
proceeds from the Notes, and it shall not be responsible for any statement of
the Issuing Entity or the Servicer in this Indenture, any Operative Agreement or
in any other document issued in connection with the sale of the Notes or in the
Notes other than the Indenture Trustee's certificate of authentication.
Section 6.05. Notice of Event of Default. Subject to Section 5.01, the
Indenture Trustee shall promptly mail to each Noteholder notice of the Event of
Default after it is actually known to a Responsible Officer of the Indenture
Trustee, unless such Event of Default shall have been waived or cured. Except in
the case of an Event of Default in payment of principal of or interest on any
Note, the Indenture Trustee may withhold the notice if and so long as it in good
faith determines that withholding the notice is in the interests of Noteholders.
Section 6.06. Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such holder to prepare its federal and state income tax returns. The
Indenture Trustee shall prepare and file (or cause to be prepared and filed), on
behalf of the Owner Trustee or the Issuing Entity, all tax returns (if any) and
information reports, tax elections and such annual or other reports of the
Issuing Entity as are necessary for preparation of tax returns and information
reports as provided in the Trust Agreement, including without limitation Form
1099. All tax returns and information reports shall be signed by the Owner
Trustee as provided in the Trust Agreement.
Section 6.07. Compensation and Indemnity. The Indenture Trustee shall
be entitled, as compensation for its services, to earnings with respect to, or
the benefit of amounts in, the Trust Accounts as provided in the Sale and
Servicing Agreement (which amounts shall constitute the Indenture Trustee's fees
for its services). The Indenture Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Indenture Trustee
and any co-trustee shall be reimbursed by the Issuing Entity, as provided in
Section 5.03 of the Sale and Servicing Agreement, for all reasonable ordinary
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services (as provided in the Sale and
Servicing Agreement). Reimbursable expenses under this Section 6.07 shall
include the reasonable compensation and expenses, disbursements and advances of
the Indenture Trustee's agents, counsel, accountants and experts.
The Issuing Entity shall indemnify the Indenture Trustee, any
co-trustee and their respective employees, directors and agents, as provided in
Section 5.03 of the Sale and Servicing Agreement, against any and all claim,
loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder or under any Operative Agreement. The Indenture Trustee or
co-trustee, as applicable, shall notify the Issuing Entity and the Administrator
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee or the co-trustee, as applicable, to so notify the Issuing Entity and
the Administrator shall not relieve the Issuing Entity or the Administrator of
their respective obligations hereunder. The Issuing Entity shall defend any such
claim, and the Indenture Trustee and any co-trustee may have separate counsel
and the Issuing Entity shall pay the fees and expenses of such counsel. The
Issuing Entity shall not be required to reimburse any expense or indemnify
against any loss, liability or expense incurred by the Indenture Trustee or any
co-trustee through the Indenture Trustee's or co-trustee's, as the case may be,
own willful misconduct, negligence or bad faith.
The Issuing Entity's payment obligations to the Indenture Trustee and
the Owner Trustee pursuant to this Section 6.07 shall survive the discharge of
this Indenture and the termination or resignation of the Indenture Trustee. When
the Indenture Trustee or the Owner Trustee incurs expenses after the occurrence
of an Event of Default with respect to the Issuing Entity, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee
may resign at any time by so notifying the Issuing Entity. Holders of a majority
of Note Balances of the Notes may remove the Indenture Trustee by so notifying
the Indenture Trustee and may appoint a successor Indenture Trustee. The Issuing
Entity shall, remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11 hereof;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of the Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuing Entity shall, promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuing Entity.
Thereupon, the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the rights,
powers and duties of the Indenture Trustee under this Indenture. The successor
Indenture Trustee shall mail a notice of its succession to Noteholders. The
retiring Indenture Trustee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 30 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuing Entity or the Holders of a majority of Note
Balances of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuing Entity's obligations under Section 6.07 shall continue
for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; PROVIDED, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide each Rating
Agency prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Issuing Entity, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Collateral, or any part hereof, and, subject to
the other provisions of this Section 6.10, such powers, duties, obligations,
rights and trusts as may be considered necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Collateral or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA ss. 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it or its
parent shall have a long-term debt rating of "Baa3" or better by Moody's and
"BBB" or better by S&P and Fitch. The Indenture Trustee shall comply with TIA
ss. 310(b), including the optional provision permitted by the second sentence of
TIA ss. 310(b)(9); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities of the Issuing Entity are outstanding if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met.
Section 6.12. Representations and Warranties. The Indenture Trustee
hereby represents that:
(i) It is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Indenture by it, and the
performance and compliance with the terms of this Indenture by it, will not
violate its charter or bylaws.
(iii) It has the full power and authority to enter into and consummate
all transactions contemplated by this Indenture has duly authorized the
execution, delivery and performance of this Indenture, and has duly
executed and delivered this Indenture.
(iv) This Indenture, assuming due authorization, execution and
delivery by the Issuing Entity, constitutes a valid, legal and binding
obligation of it, enforceable against it in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, receivership,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Indenture Trustee is a "securities intermediary," as such term
is defined in Section 8-102(a)(14)(B) of the New York UCC, that in the
ordinary course of its business maintains "securities accounts" for others,
as such term is used in Section 8-501 of the New York UCC.
Section 6.13. Preferential Collection of Claims Against Issuing Entity.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee which
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuing Entity To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuing Entity will furnish or cause to be
furnished to the Indenture Trustee (a) not more than five days after each Record
Date, a list, in such form as the Indenture Trustee may reasonably require, of
the names and addresses of the Holders of Notes as of such Record Date, (b) at
such other times as the Indenture Trustee may request in writing, within 30 days
after receipt by the Issuing Entity of any such request, a list of similar form
and content as of a date not more than 10 days prior to the time such list is
furnished; PROVIDED, HOWEVER, that so long as the Indenture Trustee is the Note
Registrar, no such list shall be required to be furnished to the Indenture
Trustee.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 hereof and the names and addresses of Holders of Notes received
by the Indenture Trustee in its capacity as Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in such Section 7.01
upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuing Entity and the Indenture Trustee shall have the
protection of TIA Section 3l2(c).
Section 7.03. Reports by Issuing Entity.
(a) The Issuing Entity shall:
(i) file with the Indenture Trustee and the Commission in accordance
with the rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuing Entity with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(ii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuing Entity pursuant to clause (i) of this Section 7.03(a) and by
rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuing Entity otherwise determines, the fiscal year of
the Issuing Entity shall end on December 31st of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each [______], beginning with [________], the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each securities
exchange, if any, on which the Notes are listed. The Issuing Entity shall notify
the Indenture Trustee if and when the Notes are listed on any securities
exchange.
Section 7.05. Reports Filed with Securities and Exchange Commission.
(a) (i) Within 15 days after each Distribution Date, the Indenture
Trustee shall, in accordance with industry standards, file with the Commission
via the Electronic Data Gathering and Retrieval System ("XXXXX"), a Distribution
Report on Form 10-D, signed by the Servicer, with a copy of the monthly
statement to be furnished by the Indenture Trustee to the Noteholders for such
Distribution Date and detailing all data elements specified in Item 1121(a) of
Regulation AB as part of the monthly statement; provided that the Indenture
Trustee shall have received no later than 2 days prior to the date such
Distribution Report on Form 10-D is required to be filed, all information
required to be provided to the Indenture Trustee as described in clause (a)(iv)
below.
(ii) The Indenture Trustee will prepare and file Current
Reports on Form 8-K in respect of the Trust, signed by the Servicer, as and when
required; provided, that, the Indenture Trustee shall have received no later
than one Business Day prior to the filing deadline for such Current Report, all
information, data, and exhibits required to be provided or filed with such
Current Report and required to be provided to the Indenture Trustee as described
in clause (a)(iv) below.
(iii) Prior to January 30 in each year commencing in 2007, the
Indenture Trustee shall, in accordance with industry standards, file a Form 15
Suspension Notice with respect to the Trust Fund, if applicable. Prior to (x)
March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have
been filed, prior to March 15 of each year thereafter, the Servicer shall
provide the Indenture Trustee with an Annual Compliance Statement, together with
a copy of the Assessment of Compliance and Attestation Report to be delivered by
the Servicer pursuant to the Servicing Agreement (including with respect to any
subservicer or subcontractor, if required to be filed). Prior to (x) March 31,
2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed,
March 31 of each year thereafter, the Indenture Trustee shall, subject to
subsection (d) below, file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include the
Assessment of Compliance, Attestation Report, Annual Compliance Statements and
other documentation provided by the Servicer pursuant to the Servicing Agreement
(including with respect to any subservicer or subcontractor, if required to be
filed) and with respect to the Indenture Trustee and the Custodian, and the Form
10-K certification signed by the Depositor; provided that the Indenture Trustee
shall have received no later than March 15 of each calendar year prior to the
filing deadline for the Form 10-K all information, data and exhibits required to
be provided or filed with such Form 10-K and required to be provided to the
Indenture Trustee as described in clause (a)(iv) below.
(iv) As to each item of information required to be included in
any Form 10-D, Form 8-K or Form 10-K, the Indenture Trustee's obligation to
include the information in the applicable report is subject to receipt from the
entity that is indicated in Exhibit F as the responsible party for providing
that information, if other than the Indenture Trustee, as and when required as
described above. Each of the Servicer, Seller and Depositor hereby agree to
notify and provide to the Indenture Trustee all information that is required to
be included in any Form 10-D, Form 8-K or Form 10-K, with respect to which that
entity is indicated in Exhibit F as the responsible party for providing that
information. The Swap Provider will be obligated pursuant to the Swap Agreement
to provide to the Indenture Trustee any information that may be required to be
included in any Form 10-D, Form 8-K or Form 10-K. The Indenture Trustee shall be
responsible for determining the significance percentage (as defined in Item 1115
of Regulation AB) of the Swap Provider at any time. The Servicer shall be
responsible for determining the pool concentration applicable to any subservicer
or originator at any time, for purposes of disclosure as required by Items 1117
and 1119 of Regulation AB.
The Depositor hereby grants to the Servicer a limited power of attorney
to sign each Form 10-D, Form 8-K and Form 10-K on behalf of the Depositor. Such
power of attorney shall continue until either the earlier of (x) receipt by the
Servicer from the Depositor of written termination of such power of attorney and
(y) the termination of the Trust Fund. The Depositor agrees to promptly furnish
to the Indenture Trustee, from time to time upon request, such further
information, reports and financial statements within its control related to this
Agreement, the Mortgage Loans as the Indenture Trustee reasonably deems
appropriate to prepare and file all necessary reports with the Commission. The
Indenture Trustee shall have no responsibility to file any items other than
those specified in this Section 7.05; provided, however, the Indenture Trustee
will cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Copies of all reports
filed by the Indenture Trustee under the Exchange Act shall be sent to: the
Depositor c/o _____________, Attn: _____________, _____________, _____________,
_____________. Fees and expenses incurred by the Indenture Trustee in connection
with this Section 7.05 shall not be reimbursable from the Trust Fund.
(b) In connection with the filing of any 10-K hereunder, the Indenture
Trustee shall sign a certification (in the form attached hereto as Exhibit E)
for the Depositor regarding certain aspects of the Form 10-K certification
signed by the Depositor, provided, however, that the Indenture Trustee shall not
be required to undertake an analysis of any accountant's report attached as an
exhibit to the Form 10-K.
(c) In connection with the filing of any 10-K hereunder, the Servicer
shall sign a certification (in the form attached hereto as Exhibit E) for the
benefit of the Depositor regarding certain aspects of the Form 10-K
certification signed by the Depositor, provided, however, that the Servicer
shall not be required to undertake an analysis of any accountant's report
attached as an exhibit to the Form 10-K.
(d) The Indenture Trustee shall indemnify and hold harmless the
Depositor and its officers, directors and affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the Indenture Trustee's obligations under this Section
7.05 or the Indenture Trustee's negligence, bad faith or willful misconduct in
connection therewith.
The Depositor shall indemnify and hold harmless the Indenture Trustee
and its officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the obligations of the Depositor under this Section 7.05 or the
Depositor's negligence, bad faith or willful misconduct in connection therewith.
The Servicer shall indemnify and hold harmless the Indenture Trustee
and the Depositor and their respective officers, directors and affiliates from
and against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Servicer under
this Section 7.05 or the Servicer's negligence, bad faith or willful misconduct
in connection therewith.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor or the Indenture Trustee, as
applicable, then the defaulting party, in connection with a breach of its
respective obligations under this Section 7.05 or its respective negligence, bad
faith or willful misconduct in connection therewith, agrees that it shall
contribute to the amount paid or payable by the other parties as a result of the
losses, claims, damages or liabilities of the other party in such proportion as
is appropriate to reflect the relative fault and the relative benefit of the
Depositor on the one hand and the Indenture Trustee on the other.
(e) Nothing shall be construed from the foregoing subsections (a), (b)
and (c) to require the Indenture Trustee or any officer, director or Affiliate
thereof to sign any Form 10-K or any certification contained therein.
Furthermore, the inability of the Indenture Trustee to file a Form 10-K as a
result of the lack of required information as set forth in Section 7.05(a) or
required signatures on such Form 10-K or any certification contained therein
shall not be regarded as a breach by the Indenture Trustee of any obligation
under this Agreement.
This Section 7.05 may be amended without the consent of the
Noteholders.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim an Event of Default under this Indenture
and any right to proceed thereafter as provided in Article V.
Section 8.02. Trust Accounts and Certificate Account.
(a) On or prior to the Closing Date, the Indenture Trustee shall
establish and maintain in its name the Trust Accounts and the Certificate
Account, each as provided in Article V of the Sale and Servicing Agreement.
(b) On each Payment Date and Optional Redemption Date, the Paying Agent
(or, if the Indenture Trustee acts as Paying Agent, the Indenture Trustee) shall
pay all amounts on deposit in the Payment Account as provided in Section 5.03 of
the Sale and Servicing Agreement.
(c) On each Payment Date and each Optional Redemption Date, the
Indenture Trustee hereby authorizes the Owner Trustee or the Certificate Paying
Agent, as applicable, to make the distributions from the Certificate Account as
required pursuant to Section 5.07 of the Sale and Servicing Agreement.
Section 8.03. General Provisions Regarding Accounts. Funds in the Trust
Accounts maintained by the Indenture Trustee shall be invested to the extent
provided in the Sale and Servicing Agreement.
Section 8.04. Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture and the Sale and Servicing Agreement 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 to the Noteholders pursuant to the Sale and
Servicing Agreement and all fees and expenses of the Indenture Trustee, the
Servicer and the Administrator pursuant to this Indenture have been paid,
release any remaining portion of the Collateral that secured the Notes from the
lien of this Indenture and release to the Issuing Entity 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
subsection (b) only upon receipt of an Issuing Entity 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 11.01 hereof.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuing Entity and the Indenture Trustee,
when authorized by an Issuing Entity Request, at any time and from time to time,
may enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the TIA as in force at the date of the execution thereof),
in form satisfactory to the Indenture Trustee, for any of the following
purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuing Entity, and the
assumption by any such successor of the covenants of the Issuing Entity
herein and in the Notes contained;
(iii) to add to the covenants of the Issuing Entity, for the benefit
of the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuing Entity;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture;
(vi) to make any other provisions with respect to matters or questions
arising under this Indenture or in any supplemental indenture; provided,
that such action shall not materially and adversely affect the interests of
the Holders of the Notes (as evidenced by either (i) an Opinion of Counsel
delivered to the Servicer and the Indenture Trustee or (ii) confirmation
from the Rating Agencies that such amendment will not result in the
reduction or withdrawal of the rating of any Class of Notes);
(vii) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI hereof; or
(viii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA as evidenced by an Opinion of Counsel.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuing Entity and the Indenture Trustee, when authorized by an
Issuing Entity Request, may, also without the consent of any of the Holders of
the Notes and prior notice to the Rating Agencies, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under this
Indenture; PROVIDED, HOWEVER, that such action as evidenced by an Opinion of
Counsel, (i) is permitted by this Indenture, and (ii) shall not adversely affect
in any material respect the interests of any Noteholder (which may be evidenced
by confirmation from the Rating Agencies that such amendment will not result in
the reduction or withdrawal of the rating of any Class of Notes).
Section 9.02. Supplemental Indentures with Consent of Noteholders. The
Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity
Request, also may, with prior notice to the Rating Agencies and, with the
consent of the Holders of not less than a majority of the Note Balance of each
Class of Notes affected thereby, by Act (as defined in Section 10.03 hereof) of
such Holders delivered to the Issuing Entity and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each Note
affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Notes, or change
any place of payment where, or the coin or currency in which, any Note or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due
dates thereof;
(ii) reduce the percentage of the Note Balances of the Notes, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding" or modify or alter the exception in the
definition of the term "Holder";
(iv) reduce the percentage of the Note Balances of the Notes required
to direct the Indenture Trustee to direct the Issuing Entity to sell or
liquidate the Trust Estate pursuant to Section 5.04 hereof;
(v) modify any provision of this Section 9.02 except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Operative Agreements cannot be modified
or waived without the consent of the Holder of each Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate
the lien of this Indenture on any property at any time subject hereto or
deprive the Holder of any Note of the security provided by the lien of this
Indenture;
Any such action shall not (as evidenced by either (i) an Opinion of
Counsel delivered to the Servicer and the Indenture Trustee or (ii) confirmation
from the Rating Agencies that such amendment will not result in the reduction or
withdrawal of the rating of any Class of Notes) adversely affect in any material
respect the interest of any Holder (other than a Holder who shall consent to
such supplemental indenture).
It shall not be necessary for any Act of Noteholders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuing Entity and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.02, the
Indenture Trustee shall mail to the Holders of the Notes to which such amendment
or supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Notwithstanding any provision of this Indenture to the contrary, the
Indenture Trustee shall not consent to any supplemental indenture pursuant to
Section 9.01 or Section 9.02 unless it shall have first received an Opinion of
Counsel, delivered by (and at the expense of) the Person seeking such
supplemental indenture, to the effect that such supplemental indenture will not
result in the imposition of a tax on any REMIC created hereunder pursuant to the
REMIC Provisions or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Notes or Certificates are outstanding and that the
supplemental indenture is being made in accordance with the terms hereof and
that all conditions precedent to the execution of such supplemental indenture in
accordance with the relevant provisions of this Article IX have been met.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Section 6.02, shall be fully protected in relying upon, an Opinion of
Counsel to the effect provided in Section 9.07. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuing Entity and the Holders of
the Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in a form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuing Entity or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuing Entity, to any such
supplemental indenture may be prepared and executed by the Issuing Entity and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption. The Notes are subject to redemption pursuant
to Section 8.02 of the Sale and Servicing Agreement. The Issuing Entity shall
furnish each Rating Agency notice of such redemption. If any Notes are to be
redeemed pursuant to Section 8.02 of the Sale and Servicing Agreement, the
Redeemer shall furnish notice of its exercise of its option to redeem the Notes
to the Indenture Trustee not later than 5 days prior to the Optional Redemption
Date and the Redeemer shall deposit, by 10:00 A.M. New York City time on the
third Business Day prior to the Optional Redemption Date, with the Indenture
Trustee, the Optional Redemption Price of the Notes to be redeemed, whereupon
all such Notes shall be due and payable on the Optional Redemption Date upon the
furnishing of a notice complying with Section 10.02 hereof to each Holder of the
Notes.
In connection with any Redemption, the requirements of Section 8.03 of
the Sale and Servicing Agreement must be met.
Section 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted not later than 10 days
prior to the applicable Optional Redemption Date to each Holder of Notes, as of
the close of business on the Record Date preceding the applicable Optional
Redemption Date, at such Holder's address or facsimile number appearing in the
Note Register.
All notices of redemption shall state:
(i) the Optional Redemption Date;
(ii) the Optional Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment of
the Optional Redemption Price (which shall be the office or agency of the
Note Registrar to be maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuing Entity. Failure to give
notice of redemption, or any defect therein, to any Holder of any Note shall not
impair or affect the validity of the redemption of any other Note.
Section 10.03. Notes Payable on Optional Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required under Section
10.02 (in the case of redemption pursuant to Section 10.01) and remittance to
the Indenture Trustee of the Optional Redemption Price as required under Section
10.01, on the Optional Redemption Date become due and payable at the Optional
Redemption Price and (unless the Issuing Entity shall default in the payment of
the Optional Redemption Price) no interest shall accrue on the Optional
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating the Optional Redemption Price.
ARTICLE XI
REMIC PROVISIONS
Section 11.01. Designation of REMIC Interests.
REMIC 1
-------
As provided herein, the Indenture Trustee shall elect to treat the
segregated Trust Estate (exclusive of the Pre-Funding Accounts, the Interest
Coverage Accounts, if any, any Subsequent Mortgage Loan interest, the Net WAC
Rate Carryover Reserve Account and the Reserve Account, as defined in the Sale
and Servicing Agreement) as a REMIC for federal income tax purposes, and such
segregated pool of assets shall be designated as "REMIC 1." The Class G
Certificates shall represent the sole class of "residual interests" in REMIC 1
for purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the Uncertificated REMIC 1 Pass-Through
Rate, the initial Uncertificated Principal Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC 1 Regular Interests (as defined herein).
None of the REMIC 1 Regular Interests shall be certificated.
REMIC 1 Initial Uncertificated Latest Possible
Designation Remittance Rate Balance Maturity Date(1)
----------- --------------- ------- ----------------
LT1 Variable(2) $ [_________] [July 25, 2030
LT2 Variable(2) $ [_________] July 25, 2030
LT1PF Variable(2) $ [_________] July 25, 2030
LT2PF Variable(2) $ [_________] July 25, 2030]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Payment Date immediately following the maturity date for the Mortgage
Loan with the latest maturity date has been designated as the "latest
possible maturity date" for each REMIC 1 Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 1
Pass-Through Rate" herein.
REMIC 2
-------
As provided herein, the Indenture Trustee shall elect to treat the
segregated pool of assets consisting of the REMIC 1 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC 2." The Class R-2 Interest shall represent the sole class
of "residual interests" in REMIC 2 for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the Uncertificated REMIC
2 Pass-Through Rate, the initial Uncertificated Principal Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC 2 Regular Interests (as
defined herein) certificated. None of the REMIC 2 Regular Interests will be
certificated.
Uncertificated REMIC 1 Initial Uncertificated Assumed Final Maturity
Designation Pass-Through Rate Principal Balance Date(1)
----------- ----------------- ----------------- -------
LTAA Variable(2) $[______________] [July 25, 2030
LTIA1 Variable(2) $[______________] July 25, 2030
LTIIA1a Variable(2) $[______________] July 25, 2030
LTIIA1b Variable(2) $[______________] July 25, 2030
LTIIA1c Variable(2) $[______________] July 25, 2030
LTIIA2c Variable(2) $[______________] July 25, 2030
LTIIA3c Variable(2) $[______________] July 25, 2030
LTIIA4c Variable(2) $[______________] July 25, 2030
LTM1 Variable(2) $[______________] July 25, 2030
LTM2 Variable(2) $[______________] July 25, 2030
LTM3 Variable(2) $[______________] July 25, 2030
LTM4 Variable(2) $[______________] July 25, 2030
LTM5 Variable(2) $[______________] July 25, 2030
LTM6 Variable(2) $[______________] July 25, 2030
LTM7 Variable(2) $[______________] July 25, 2030
LTM8 Variable(2) $[______________] July 25, 2030
LTM9 Variable(2) $[______________] July 25, 2030
LTM10 Variable(2) $[______________] July 25, 2030
LTM11 Variable(2) $[______________] July 25, 2030
LTB1 Variable(2) $[______________] July 25, 2030
LTB2 Variable(2) $[______________] July 25, 2030
LTZZ Variable(2) $[______________] July 25, 2030]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Payment Date in the month immediately following the maturity date for
the Mortgage Loan with the latest possible maturity date has been
designated as the "latest possible maturity date" for each REMIC 2 Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 2
Pass-Through Rate" herein.
REMIC 3
-------
As provided herein, the Indenture Trustee shall elect to treat the
segregated pool of assets consisting of the REMIC 2 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC 3." The Class R-3 Interest shall evidence the sole class of
"residual interests" in REMIC 3 for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the Note
Rate, the Initial Note Balance and, for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each Class of Notes that represents one or more of the "regular interests" in
REMIC 3 created hereunder:
Assumed Final Maturity
Designation Initial Note Balance Note Rate Date(1)
----------- -------------------- --------- -------
Class IA-1.............. $[_____________] Variable(2) [July 25, 2030
Class IIA-1a............ $[_____________] Variable(2) July 25, 2030
Class IIA-1b............ $[_____________] Variable(2) July 25, 2030
Class IIA-1c............ $[_____________] Variable(2) July 25, 2030
Class IIA-2c............ $[_____________] Variable(2) July 25, 2030
Class IIA-3c............ $[_____________] Variable(2) July 25, 2030
Class IIA-4c............ $[_____________] Variable(2) July 25, 2030
Class M-1............... $[_____________] Variable(2) July 25, 2030
Class M-2............... $[_____________] Variable(2) July 25, 2030
Class M-3............... $[_____________] Variable(2) July 25, 2030
Class M-4............... $[_____________] Variable(2) July 25, 2030
Class M-5............... $[_____________] Variable(2) July 25, 2030
Class M-6............... $[_____________] Variable(2) July 25, 2030
Class M-7............... $[_____________] Variable(2) July 25, 2030
Class M-8............... $[_____________] Variable(2) July 25, 2030
Class M-9............... $[_____________] Variable(2) July 25, 2030
Class M-10.............. $[_____________] Variable(2) July 25, 2030
Class M-11.............. $[_____________] Variable(2) July 25, 2030
Class B-1............... $[_____________] Variable(2) July 25, 2030
Class B-2............... $[_____________] Variable(2) July 25, 2030
Class C Interest........ $[_____________] Variable(2) July 25, 2030]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Payment Date in the month immediately following the maturity date for
the Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each Class of Notes that represents one
or more of the "regular interests" in REMIC 3.
(2) Calculated in accordance with the definition of "Note Rate" herein.
(3) The Class C Interest will accrue interest at its variable Note Rate on the
Notional Amount of the Class C Interest outstanding from time to time which
shall equal the aggregate Uncertificated Principal Balance of the REMIC 2
Regular Interests. The Class C Interest will not accrue interest on its
Certificate Principal Balance.
REMIC 4
-------
As provided herein, the Indenture Trustee shall make an election to
treat the Class C Interest as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC 4." The Class R-X
Certificates represent the sole class of "residual interests" in REMIC 4 for
purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Note Rate and original Certificate Principal Balance for the Class C
Certificates.
Original Class Certificate Assumed Final Maturity
Class Designation Principal Balance Pass-Through Rate Date(1)
----------------- ----------------- ----------------- -------
Class C $[_____________] Variable(2) [September 25, 2035]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Payment Date in the month immediately following the maturity date for
the Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for the Class C Certificates.
(2) The Class C Certificates will receive 100% of amounts received in respect
of the Class C Interest. The Class C Certificates will also be entitled to
Subsequent Mortgage Loan interest, as a right with respect to a component
of the Class C Certificates that will not be treated as a REMIC regular
interest but rather as separate interest strips from the Subsequent
Mortgage Loans for a specified period of time.
Section 11.02. Payments on REMIC Regular Interests.
(a) On each Payment Date, the Indenture Trustee shall cause in the
following order of priority, the following amounts which shall be deemed to be
paid by REMIC 1 to REMIC 2 on account of the REMIC 1 Regular Interests or
withdrawn from the Payment Account and paid to the holders of the Class G
Certificates, as the case may be:
With respect to the Group I Mortgage Loans:
(1) to the Holders of REMIC 1 Regular Interest LT1 and REMIC 1
Regular Interest LT1PF in an amount equal to (A) the Uncertificated
Accrued Interest for each REMIC 1 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(2) to the Holders of REMIC 1 Regular Interest LT1 and REMIC 1
Regular Interest LT1PF, in an amount equal to the remainder of the
Available Funds for such Distribution Date after the distributions made
pursuant to clause (1) above, allocated as follows:
(a) to the Holders of REMIC 1 Regular Interest LT1,
until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1 is reduced to zero;
(b) to the Holders of REMIC 1 Regular Interest LT1PF,
until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1PF is reduced to zero; and
(c) any remaining amount to the Holders of the Class
G Certificates.
With respect to the Group II Mortgage Loans:
(1) to the Holders of REMIC 1 Regular Interest LT2 and REMIC 1
Regular Interest LT2PF in an amount equal to (A) the Uncertificated
Accrued Interest for each REMIC 1 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(2) to the Holders of REMIC 1 Regular Interest LT2 and REMIC 1
Regular Interest LT2PF, in an amount equal to the remainder of the
Available Funds for such Distribution Date after the distributions made
pursuant to clause (1) above, allocated as follows:
(a) to the Holders of REMIC 1 Regular Interest LT2,
until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT2 is reduced to zero;
(b) to the Holders of REMIC 1 Regular Interest LT2PF,
until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT2PF is reduced to zero; and
(c) any remaining amount to the Holders of the Class
G Certificates.
(b) On each Payment Date, the Indenture Trustee shall cause in the
following order of priority, the following amounts which shall be deemed to be
distributed by REMIC 2 to REMIC 3 on account of the REMIC 2 Regular Interests or
withdrawn from the Payment Account and paid to the holders of the Class R
Certificates (in respect of the Class R-2 Interest), as the case may be:
(i) first, to the extent of Available Funds, to Holders of REMIC
2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC 2
Regular Interest LTIIA1a, REMIC 2 Regular Interest LTIIA1b, REMIC 2
Regular Interest LTIIA1c, REMIC 2 Regular Interest LTIIA2c, REMIC 2
Regular Interest LTIIA3c, REMIC 2 Regular Interest LTIIA4c, REMIC 2
Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular
Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7,
REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2
Regular Interest LTM10, REMIC 2 Regular Interest LTM11, REMIC 2
Regular Interest LTB1, REMIC 2 Regular Interest LTB2 and REMIC 2
Regular Interest LTZZ, on a PRO RATA basis, in an amount equal to (A)
the Uncertificated Accrued Interest for such Payment Date, plus (B)
any amounts in respect thereof remaining unpaid from previous Payment
Dates. Amounts payable as Uncertificated Accrued Interest in respect
of REMIC 2 Regular Interest LTZZ shall be reduced and deferred when
the REMIC 2 Overcollateralization Amount is less than the REMIC 2
Overcollateralization Target Amount, by the lesser of (x) the amount
of such difference and (y) the Maximum Uncertificated Accrued Interest
Deferral Amount and such amount will be payable to the Holders of
REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1a,
REMIC 2 Regular Interest LTIIA1b, REMIC 2 Regular Interest LTIIA1c,
REMIC 2 Regular Interest LTIIA2c, REMIC 2 Regular Interest LTIIA3c,
REMIC 2 Regular Interest LTIIA4c, REMIC 2 Regular Interest LTM1, REMIC
2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2
Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest
LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest LTM10,
REMIC 2 Regular Interest LTM11, REMIC 2 Regular Interest LTB1 and
REMIC 2 Regular Interest LTB2, in the same proportion as the
Overcollateralization Deficiency Amount is allocated to the
Corresponding Notes and the Uncertificated Principal Balance of the
REMIC 2 Regular Interest LTZZ shall be increased by such amount; and
(ii) second, to the Holders of REMIC 2 Regular Interests, in an
amount equal to the remainder of the Available Funds for such Payment
Date after the distributions made pursuant to clause (i) above,
allocated as follows:
(a) 98.00% of such remainder to the Holders of REMIC 2 Regular
Interest LTAA, until the Uncertificated Principal Balance of such
Uncertificated REMIC 2 Regular Interest is reduced to zero;
(b) 2.00% of such remainder first, to the Holders of REMIC 2
Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1a, REMIC 2
Regular Interest LTIIA1b, REMIC 2 Regular Interest LTIIA1c, REMIC 2
Regular Interest LTIIA2c, REMIC 2 Regular Interest LTIIA3c, REMIC 2
Regular Interest LTIIA4c, REMIC 2 Regular Interest LTM1, REMIC 2
Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest
LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2
Regular Interest LTM11, REMIC 2 Regular Interest LTB1 and REMIC 2
Regular Interest LTB2, in the same proportion as principal payments
are allocated to the Corresponding Notes, until the Uncertificated
Principal Balances of such REMIC 2 Regular Interests are reduced to
zero, and second, to the Holders of REMIC 2 Regular Interest LTZZ,
until the Uncertificated Principal Balance of such REMIC 2 Regular
Interest is reduced to zero; and
(c) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-2 Interest).
Section 11.03. Allocation of Realized Losses on the REMIC Regular
Interests.
(a) Realized Losses on the Mortgage Loans that are allocated to the
Class C Notes, Class B Notes and Mezzanine Notes shall, (i) with respect to the
Group I Mortgage Loans, be deemed to have been allocated by the Indenture
Trustee on each Payment Date to the REMIC 1 Regular Interest LT1 and REMIC 1
Regular Interest LT1PF until the Uncertificated Principal Balance of each such
REMIC 1 Regular Interest has been reduced to zero; provided however, with
respect to the first three Payment Dates, all Realized Losses on the Initial
Mortgage Loans shall be allocated to REMIC 1 Regular Interest LT1 until the
Uncertificated Principal Balance thereof has been reduced to zero, and all
Realized Losses on the Subsequent Mortgage Loans shall be allocated to REMIC 1
Regular Interest LT1PF until the Uncertificated Principal Balance thereof has
been reduced to zero and (ii) with respect to the Group II Mortgage Loans, be
deemed to have been allocated by the Indenture Trustee on each Payment Date to
the REMIC 1 Regular Interest LT2 and REMIC 1 Regular Interest LT2PF until the
Uncertificated Principal Balance of each such REMIC 1 Regular Interest has been
reduced to zero; provided however, with respect to the first three Payment
Dates, all Realized Losses on the Initial Mortgage Loans shall be allocated to
REMIC 1 Regular Interest LT2 until the Uncertificated Principal Balance thereof
has been reduced to zero, and all Realized Losses on the Subsequent Mortgage
Loans shall be allocated to REMIC 1 Regular Interest LT2PF until the
Uncertificated Principal Balance thereof has been reduced to zero. Realized
Losses on the Mortgage Loans that are allocated to the Class G Certificates
shall be allocated by the Indenture Trustee on each Payment Date to the Class G
Certificates.
(b) Realized Losses on the Mortgage Loans that are allocated to the
Class C Notes, Class B Notes and Mezzanine Notes shall be deemed to have been
allocated in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC 2 Regular Interest LTAA and REMIC 2
Regular Interest LTZZ up to an aggregate amount equal to the REMIC 2 Interest
Loss Allocation Amount, 98% and 2%, respectively; second, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest
LTZZ up to an aggregate amount equal to the REMIC 2 Principal Loss Allocation
Amount, 98% and 2%, respectively; third, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTB2 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTB2 has been
reduced to zero; fourth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTB1 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTB1 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM11 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM11 has been reduced to zero; sixth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM10 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM10 has been
reduced to zero; seventh, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM9 has been reduced to zero; eighth, to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM8 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM8 has been reduced to zero; ninth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM7 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM7 has been
reduced to zero; tenth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM6 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM6 has been reduced to zero; eleventh, to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM5 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM5 has been reduced to zero; twelfth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM4 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM4 has been
reduced to zero; thirteenth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM3 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM3 has been reduced to zero; fourteenth,
to the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2 Regular Interest LTM2 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM2 has been reduced to zero and fifteenth, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM1 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM1 has been
reduced to zero.
Section 11.04. REMIC Administration.
(a) REMIC elections as set forth in Section 11.01 shall be made by the
Indenture Trustee on Form 1066 or other appropriate federal tax or information
return for the taxable year ending on the last day of the calendar year in which
the Notes are issued. The regular interests and residual interest in each REMIC
shall be as designated in Section 11.01.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code.
(c) The Indenture Trustee shall pay any and all expenses relating to
any tax audit of any REMIC (including, but not limited to, any professional fees
or any administrative or judicial proceedings with respect to any REMIC that
involve the Internal Revenue Service or state tax authorities), including the
expense of obtaining any tax related Opinion of Counsel. The Indenture Trustee
shall be entitled to reimbursement of expenses incurred pursuant to this Section
9.01(c) to the extent provided in Section 6.07.
(d) The Indenture Trustee shall prepare, sign and file, all of the
REMICs' federal and state tax and information returns (including Form 8811) as
the direct representative of each REMIC created hereunder. The expenses of
preparing and filing such returns shall be borne by the Indenture Trustee.
(e) The Holder of the Class G Certificate at any time holding the
largest Percentage Interest thereof shall be the "tax matters person" as defined
in the REMIC Provisions (the related "Tax Matters Person") with respect to REMIC
1 and shall act as Tax Matters Person for REMIC 1. The Holder of the Class R
Certificate at any time holding the largest Percentage Interest thereof shall be
the Tax Matters Person with respect to REMIC 2 and REMIC 3 and shall act as Tax
Matters Person for REMIC 2 and REMIC 3. The Holder of the Class R-X Certificate
at any time holding the largest Percentage Interest thereof shall be the Tax
Matters Person with respect to REMIC 4 and shall act as Tax Matters Person for
REMIC 4. The Indenture Trustee, as agent for the Tax Matters Person, shall
perform on behalf of each REMIC all reporting and other tax compliance duties
that are the responsibility of such REMIC under the Code, the REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any state
or local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Indenture Trustee, as agent for
the Tax Matters Person, shall provide (i) to the Treasury or other governmental
authority such information as is necessary for the application of any tax
relating to the transfer of a Class R, Class R-X or Class G Certificate to any
disqualified person or organization and (ii) to the Noteholders such information
or reports as are required by the Code or REMIC Provisions. The Indenture
Trustee, as agent for the Tax Matters Person, shall represent each REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any REMIC, enter into settlement agreements with any
government taxing agency, extend any statute of limitations relating to any item
of any REMIC and otherwise act on behalf of any REMIC in relation to any tax
matter involving the Trust.
(f) The Indenture Trustee, the Issuing Entity and the Holders of Notes
shall take any action or cause the REMIC to take any action necessary to create
or maintain the status of each REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status. Neither
the Trustee, the Issuing Entity nor the Holder of any Class G, Class R or Class
R-X Certificate shall knowingly take any action, cause any REMIC created
hereunder to take any action or fail to take (or fail to cause to be taken) any
action that, under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of such REMIC as a REMIC or (ii) result in the
imposition of a tax upon such REMIC (including but not limited to the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth on Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Indenture Trustee and the Issuing
Entity have received an Opinion of Counsel (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such a tax. In addition,
prior to taking any action with respect to any REMIC created hereunder or the
assets therein, or causing such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Class G, Class R or
Class R-X Certificate will consult with the Indenture Trustee and the Issuing
Entity, or their respective designees, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur with respect to any REMIC,
and no such Person shall take any such action or cause any REMIC to take any
such action as to which the Indenture Trustee or the Issuing Entity has advised
it in writing that an Adverse REMIC Event could occur.
(g) The Holders of the Class R Certificates shall pay when due any and
all taxes imposed on each REMIC created hereunder by federal or state
governmental authorities. To the extent that such taxes are not paid by the
Holder of the Class R Certificates, the Indenture Trustee shall pay any
remaining REMIC taxes out of other amounts held in the Payment Account, and
shall reduce amounts otherwise payable to Holders of regular interests in the
related REMIC. Subject to the foregoing, in the event that a REMIC incurs a
state or local tax, including franchise taxes, as a result of a determination
that such REMIC is domiciled in the State of California for state tax purposes
by virtue of the location of the Servicer, the Servicer agrees to pay on behalf
of such REMIC when due, any and all state and local taxes imposed as a result of
such a determination, in the event that the Holder of the Class G, Class R or
Class R-X Certificate fails to pay such taxes, if any, when imposed.
(h) The Indenture Trustee, as agent for the Tax Matters Person, shall,
for federal income tax purposes, maintain books and records with respect to each
REMIC created hereunder on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC
created hereunder, except as expressly provided in this Agreement with respect
to Qualifying Substitute Mortgage Loans.
(j) Neither the Issuing Entity nor the Indenture Trustee shall enter
into any arrangement by which any REMIC created hereunder will receive a fee or
other compensation for services.
(k) The Trustee will apply for an Employee Identification Number from
the Internal Revenue Service via a Form SS-4 or other acceptable method for all
tax entities and shall complete the Form 8811.
Section 11.05. Prohibited Transactions and Activities. Neither the
Issuing Entity nor the Indenture Trustee shall sell, dispose of, or substitute
for any of the Mortgage Loans, except in a disposition pursuant to (i) the
foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Issuing Entity, (iii)
an optional redemption pursuant to Section 8.02 of the Servicing Agreement, (iv)
a substitution of a Qualifying Substitute Mortgage Loan pursuant to Section 3.04
of the Sale and Servicing Agreement or (v) a repurchase of Mortgage Loans
pursuant to Section 3.04 of the Sale and Servicing Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Payment
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless it has received an Opinion of Counsel (at the expense of the party
causing such sale, disposition, or substitution) that such disposition,
acquisition, substitution, or acceptance will not (a) affect adversely the
status of any REMIC created hereunder as a REMIC or of the interests therein
other than the Class G, Class R or Class R-X Certificates as the regular
interests therein, (b) affect the payment of interest or principal on the Notes,
(c) result in the encumbrance of the assets pledged to the Indenture Trustee
(except pursuant to the provisions of this Agreement) or (d) cause any REMIC
created hereunder to be subject to a tax on prohibited transactions or
prohibited contributions pursuant to the REMIC Provisions.
Section 11.06. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. In the event that any REMIC fails to qualify as a REMIC, loses
its status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions due
to the negligent performance by the Indenture Trustee of its duties and
obligations set forth herein, the Indenture Trustee shall indemnify the Issuing
Entity against any and all losses resulting from such negligence; provided,
however, that the Indenture Trustee shall not be liable for any such losses
attributable to the action or inaction of the Issuing Entity, the Servicer, the
Depositor or the Holder of a Class G, Class R or Class R-X Certificate, as
applicable, nor for any such losses resulting from misinformation provided by
the Holder of such Class G, Class R or Class R-X Certificate on which the
Indenture Trustee has relied. The foregoing shall not be deemed to limit or
restrict the rights and remedies of the Holder of such Class G, Class R or Class
R-X Certificate now or hereafter existing at law or in equity. Notwithstanding
the foregoing, however, in no event shall the Indenture Trustee have any
liability (1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Indenture, (2) for any losses other than arising out of a
negligent performance by the Indenture Trustee of its duties and obligations set
forth herein, and (3) for any special or consequential damages to Noteholders
(in addition to payment of principal and interest on the Notes).
ARTICLE XII
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions, etc. Upon any
application or request by the Issuing Entity to the Indenture Trustee to take
any action under any provision of this Indenture, the Issuing Entity shall
furnish to the Indenture Trustee: (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of this Section 11.01; PROVIDED, that, in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture, no additional certificate or opinion pursuant
to clauses (i), (ii) or (iii) above need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 12.02. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuing
Entity may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Depositor, the Issuing Entity or the
Administrator, stating that the information with respect to such factual matters
is in the possession of the Servicer, the Depositor, the Issuing Entity or the
Administrator, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuing
Entity shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuing Entity's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuing Entity to have
such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
Section 12.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee and, where it is hereby expressly required,
to the Issuing Entity. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuing Entity, if made in
the manner provided in this Section 11.03.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuing Entity in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 12.04. Notices, etc., to Indenture Trustee, Issuing Entity and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or act of Noteholders is to be made upon,
given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuing
Entity shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Indenture Trustee at its
Corporate Trust Office, or
(ii) the Issuing Entity by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed first-class, postage prepaid to the Issuing Entity
addressed to the address provided in the Sale and Servicing Agreement,
or at any other address previously furnished in writing to the
Indenture Trustee by the Issuing Entity or the Administrator. The
Issuing Entity shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuing
Entity, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered or mailed by certified mail, return receipt requested, to
the address provided in the Sale and Servicing Agreement or such other address
as shall be designated by written notice to the other parties.
Section 12.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at such Holder's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
Section 12.06. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 12.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuing Entity shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
Section 12.09. Severability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.10. Benefits of Indenture and Consents of Noteholders.
Nothing in this Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, the Owner
Trustee and the Noteholders, any benefit or any legal or equitable right, remedy
or claim under this Indenture. Each Noteholder and Note Owner, by acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a Note,
consents to and agrees to be bound by the terms and conditions of this
Indenture.
Section 12.11. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no additional interest
shall accrue for the period from and after any such nominal date in respect of
such payment date.
Section 12.12. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.13. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 12.14. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuing Entity and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
Section 12.15. Trust Obligations. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuing Entity, the Owner
Trustee or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in their respective
individual capacities, (ii) any owner of a beneficial interest in the Issuing
Entity or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
respective individual capacity, any holder of a beneficial interest in the
Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their respective individual capacities) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity. For
all purposes of this Indenture, in the performance of any duties or obligations
of the Issuing Entity hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles V, VI and VII
of the Trust Agreement.
In addition, (i) this Indenture is executed and delivered by Wilmington
Trust Company, not individually or personally but solely as Owner Trustee, in
the exercise of the powers and authority conferred and vested in it, (ii) each
of the representations, undertakings and agreements herein made on the part of
the Issuing Entity or the Owner Trustee is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose for binding only the Issuing Entity, (iii)
nothing herein contained shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the Indenture Trustee and by any Person claiming by, through
or under the Indenture Trustee, and (iv) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Issuing Entity or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuing Entity under this Indenture or the Operative Agreements.
Section 12.16. No Petition. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Depositor or the
Issuing Entity, or join in any institution against the Depositor or the Issuing
Entity of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under the Bankruptcy Code or any
other United States federal or state bankruptcy, insolvency or similar law in
connection with any obligations relating to the Notes, this Indenture or any of
the Operative Agreements except that the Indenture Trustee shall not be
prohibited from filing proofs of claim in connection with any such proceedings.
Section 12.17. Inspection. The Issuing Entity agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee during the Issuing Entity's normal business hours, to examine all the
books of account, records, reports and other papers of the Issuing Entity, to
make copies and extracts therefrom, to cause such books to be audited by
Independent Public Accountants, and to discuss the Issuing Entity's affairs,
finances and accounts with the Issuing Entity's officers, employees and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall, and shall
cause its representatives to, hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
Nothwithstanding anything herein to the contrary, the foregoing shall
not be construed to prohibit (i) disclosure of any and all information that is
or becomes publicly known or information obtained by the Indenture Trustee from
sources other than the Issuing Entity, (ii) disclosure of any and all
information (A) if required to do so by any applicable statute, law, rule or
regulation, (B) to any government agency or regulatory body having or claiming
authority to regulate or oversee any respects of the Indenture Trustee's
business or that of its affiliates, (C) pursuant to any subpoena, civil
investigative demand or similar demand or request of any court, regulatory
authority, arbitrator or arbitration to which the Indenture Trustee or an
affiliate or an officer, director, employer or shareholder thereof is a party,
(D) in any preliminary or final offering circular, registration statement or
contract or other document pertaining to the transactions contemplated by the
Agreement approved in advance by the Issuing Entity or (E) to any affiliate,
independent or internal auditor, agent, employee or attorney of the Indenture
Trustee having a need to know the same, provided that the Trustee advises such
recipient of the confidential nature of the information being disclosed, or
(iii) any other disclosure authorized by the Servicer or the Issuing Entity.
IN WITNESS WHEREOF, the Issuing Entity and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
GREENPOINT MORTGAGE FUNDING TRUST
200[_]-[___], as Issuing Entity
By: ______________________________________________,
not in its individual capacity but solely as
Owner Trustee
By: ______________________________________________
Name:
Title:
[______________________], not in its individual
capacity but solely as Indenture Trustee
By:
_______________________________________________
Name:
Title:
By:_________________________________________________
Name:
Title:
EXHIBIT A
FORMS OF NOTES
EXHIBIT B
[RESERVED]
EXHIBIT C-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF THE CLASS B NOTES
[Date]
[NOTE REGISTRAR]
Re: GreenPoint Mortgage Funding Trust 200[_]-[__]
Asset-Backed Notes, Series 200[_]-[__], Class B (the
"Notes")
----------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by _____________________________
(the "Transferor") to _________________________ (the "Transferee") of the Class
B-__ Notes having an initial aggregate Note Balance as of [__________] (the
"Closing Date") of $______________ (the "Transferred Notes"). The Notes,
including the Transferred Notes, were issued pursuant to the Indenture, dated as
of [__________] (the "Indenture"), between GreenPoint Mortgage Funding Trust
200[_]-[__] (the "Issuing Entity") and [__________] (the "Indenture Trustee").
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Indenture. The Transferor hereby certifies,
represents and warrants to you, as Note Registrar, and for the benefit of the
Issuing Entity, the Indenture Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the Transferred Notes
with the full right to transfer such Notes free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any Note, any
interest in any Note or any other similar security to any person in any manner,
(b) solicited any offer to buy or accept a transfer, pledge or other disposition
of any Note, any interest in any Note or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Note, any interest in any Note or any other similar security with any person in
any manner, (d) made any general solicitation by means of general advertising or
in any other manner, or (e) taken any other action, which (in the case of any of
the acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Note under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of any Note a violation of
Section 5 of the Securities Act or any state securities laws, or would require
registration or qualification of any Note pursuant to the Securities Act or any
state securities laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule l44A ("Rule l44A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of a Qualified Institutional Buyer. In determining
whether the Transferee is a Qualified Institutional Buyer, the Transferor and
any person acting on behalf of the Transferor in this matter have relied upon
the following method(s) of establishing the Transferee's ownership and
discretionary investments of securities (check one or more):
____ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding
the date of sale of the Transferred Note in the case
of a U.S. purchaser and within 18 months preceding
such date of sale for a foreign purchaser; or
____ (b) The most recent publicly available information
appearing in documents filed by the Transferee with
the Securities and Exchange Commission or another
United States federal, state, or local governmental
agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory
organization, which information is as of a date
within 16 months preceding the date of sale of the
Transferred Note in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a
foreign purchaser, or
____ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months
preceding the date of sale of the Transferred Note in
the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser,
or
____ (d) A certification by the chief financial officer, a
person fulfilling an equivalent function, or other
executive officer of the Transferee, specifying the
amount of securities owned and invested on a
discretionary basis by the Transferee as of a
specific date on or since the close of the
Transferee's most recent fiscal year, or, in the case
of a Transferee that is a member of a "family of
investment companies", as that term is defined in
Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of
securities owned by the "family of investment
companies" as of a specific date on or since the
close of the Transferee's most recent fiscal year.
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount
of securities owned and invested on a discretionary basis by
an entity for purposes of establishing whether such entity is
a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or
subscription by the Transferee, if the Transferee is a dealer;
securities of issuers that are part of the Transferee's
"family of investment companies", if the Transferee is a
registered investment company; bank deposit notes and
certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase
agreement; and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity reports its
securities holdings in its financial statements on the basis
of their market value, and no current information with respect
to the cost of those securities has been published, in which
case the securities may be valued at market;
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements
prepared in accordance with generally accepted accounting
principles may be included if the investments of such
subsidiaries are managed under the direction of the entity,
except that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary
that would be included in the consolidated financial
statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that
the Transferor is relying on the exemption from the provisions
of Section 5 of the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all
information regarding (a) the Mortgage Loans and payments
thereon, (b) the nature and performance of the Mortgage Loans,
(c) the Indenture and the Trust Estate, and (d) any credit
enhancement mechanism associated with the Mortgage Loans, that
the Transferee has requested.
Very truly yours,
------------------------
(Transferor)
By:_____________________
Name:
Title:
EXHIBIT C-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF THE CLASS B NOTES
[Date]
[NOTE REGISTRAR]
Re: GreenPoint Mortgage Funding Trust 200[_]-[__]
Asset-Backed Notes, Series 200[_]-[__], Class B
(the "Notes")
-----------------------------------------------
Ladies and Gentlemen:
__________________ (the "Transferee") intends to purchase from
_________________ (the "Transferor") the Class B-__ Notes having an initial
aggregate Note Balance as of [__________] (the "Closing Date") of $_____________
(the "Transferred Notes"). The Notes, including the Transferred Notes, were
issued pursuant to the Indenture, dated as of [__________] (the "Indenture"),
between GreenPoint Mortgage Funding Trust 200[_]-[__] (the "Issuing Entity") and
[__________] (the "Indenture Trustee"). All capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Indenture. The
Transferee hereby certifies, represents and warrants to you, as Note Registrar,
and for the benefit of the Issuing Entity, the Indenture Trustee and the
Transferor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
l44A") under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Notes is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Notes for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred Notes may
be resold, pledged or transferred only (i) to a person reasonably believed to be
a Qualified Institutional Buyer that purchases for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Mortgage Loans and payments thereon, (b) the nature and
performance of the Mortgage Loans, (c) the Indenture, and (d) any credit
enhancement mechanism associated with the Mortgage Loans, that it has requested.
3. The Transferee is neither (A) an employee benefit plan, an
Xxxxxx MSA as described in Section 220(d) of the Code, an education individual
retirement account as described in Section 530 of the Code or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), nor (B) any Person who is directly or indirectly purchasing
such Note or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" (as defined under the DOL Regulation at 29 C.F.R.
Section 2510.3-101) of a Plan.
Very truly yours,
--------------------------
(Transferee)
By:_______________________
Name:
Title:
ANNEX 1 TO EXHIBIT C-2
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") an [name of Note Registrar], as Note Registrar,
with respect to the Notes being transferred (the "Transferred Notes") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Notes (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $____________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Note in the case of a U.S. bank, and not
more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Note in the case of a U.S. savings and
loan association, and not more than 18 months
preceding such date of sale for a foreign savings and
loan association or equivalent institution.
____ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended.
____ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
____ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
____ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
____ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
____ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule l44A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather
than this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
l44A and understands that the Transferor and other parties related to the
Transferred Notes are relying and will continue to rely on the statements made
herein because one or more sales to the Transferee may be in reliance on Rule
144A.
____ ____ Will the Transferee be purchasing the Transferred Notes
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Notes will constitute a reaffirmation of this certification as of the date of
such purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
-----------------------------
Print Name of Transferee
By:__________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT C-2
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Note Registrar], as Note Registrar,
with respect to the Notes being transferred (the "Transferred Notes") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a
discretionary basis $____________ in securities
(other than the excluded securities referred to
below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $_____________
in securities (other than the excluded securities
referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or I investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred Notes
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule l44A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Notes will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
--------------------------
Print Name of Transferee or Adviser
By:________________________
Name:
Title:
IF AN ADVISER:
---------------------------
Print Name of Transferee
Date:
EXHIBIT D
FORM OF ERISA CERTIFICATION
[Date]
[NOTE REGISTRAR]
Re: GreenPoint Mortgage Funding Trust 200[_]-[___]
Asset-Backed Notes, Series 200[_]-[__] (the "Notes")
----------------------------------------------------
Ladies and Gentlemen:
__________________ (the "Transferee") intends to purchase from
_________________ (the "Transferor") the Class ___ Notes having an initial
aggregate Note Balance as of [__________] (the "Closing Date") of $_____________
(the "Transferred Notes"). The Notes, including the Transferred Notes, were
issued pursuant to the Indenture, dated as of [__________] (the "Indenture"),
between GreenPoint Mortgage Funding Trust 200[_]-[___] (the "Issuing Entity")
and [__________] (the "Indenture Trustee"). All capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Indenture.
The Transferee hereby certifies, represents and warrants to you, as Note
Registrar, and for the benefit of the Issuing Entity, the Indenture Trustee and
the Transferor, that:
The Transferee represents that any of (a), (b) or (c) is
satisfied, as marked below:
____ a. it is neither (A) an employee benefit plan, an Xxxxxx
MSA as described in Section 220(d) of the Code, an education individual
retirement account as described in Section 530 of the Code or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan"), nor (B) any Person who is directly or indirectly purchasing
such Note or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" (as defined under the DOL Regulation at 29 C.F.R.
Section 2510.3-101) of a Plan; or
____ b. in the case of Class A or Mezzanine Notes, it is a
Plan or a Person purchasing such Notes with "plan assets" and represents that,
as of the date of the transfer, (A) the Notes are rated investment grade or
better, (B) such Person believes that the Notes are properly treated as
indebtedness without substantial equity features for purposes of the DOL
Regulations, and agrees to so treat the Notes, and (C) the acquisition and
holding of the Notes will not give rise to a nonexempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code; or
___ c. in the case of Class A or Mezzanine Notes, it has
provided the Indenture Trustee with an Opinion of Counsel, which Opinion of
Counsel will not be at the expense of the Trust Estate, the Depositor, the
Issuing Entity or the Indenture Trustee, which establishes to the satisfaction
of the Indenture Trustee that the purchase, holding and transfer of such Note or
interest therein is permissible under applicable law, will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code and will not subject the Issuing Entity, the Trust Estate, the Depositor or
the Indenture Trustee to any obligation in addition to those undertaken in the
Indenture.
Very truly yours,
--------------------------
(Transferee)
By:________________________
Name:
Title:
EXHIBIT E
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
[NAME OF COMPANY], certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with
the servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the
registered public accounting firm's attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all
servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans by the Company during
200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the
Agreement (collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the
Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement
and except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Company has fulfilled its
obligations under the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor]
[Master Servicer]. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By:
Name: ________________________________
Title: ________________________________
EXHIBIT F
FORM 10-D, FORM 8-K AND FORM 10-K
REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Securities
Administrator pursuant to Section 3.18(a)(iv). If the Securities Administrator
is indicated below as to any item, then the Securities Administrator is
primarily responsible for obtaining that information.
Under Item 1 of Form 10-D: a) items marked "6.07 statement" are required to be
included in the periodic Distribution Date statement under Section 6.07,
provided by the Securities Administrator based on information received from the
Master Servicer; and b) items marked "Form 10-D report" are required to be in
the Form 10-D report but not the 6.07 statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included in
the Form 10-D report.
FORM ITEM DESCRIPTION RESPONSIBLE PARTY
-------------- --------------- ---------------------------------------------------------- ---------------------------
10-D Must be filed within 15 days of the distribution date for the asset-backed securities.
-------------- --------------- ---------------------------------------------------------- ---------------------------
1 DISTRIBUTION AND POOL PERFORMANCE INFORMATION
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1121(A) - DISTRIBUTION AND POOL PERFORMANCE
INFORMATION
-------------- --------------- ---------------------------------------------------------- ---------------------------
(1) Any applicable record dates, accrual dates, 6.07 statement
determination dates for calculating distributions and
actual distribution dates for the distribution period.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(2) Cash flows received and the sources thereof for 6.07 statement
distributions, fees and expenses.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(3) Calculated amounts and distribution of the flow of 6.07 statement
funds for the period itemized by type and priority of
payment, including:
-------------- --------------- ---------------------------------------------------------- ---------------------------
(i) Fees or expenses accrued and paid, with an 6.07 statement
identification of the general purpose of such fees and
the party receiving such fees or expenses.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(ii) Payments accrued or paid with respect to 6.07 statement
enhancement or other support identified in Item 1114 of
Regulation AB (such as insurance premiums or other
enhancement maintenance fees), with an identification of
the general purpose of such payments and the party
receiving such payments.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(iii) Principal, interest and other 6.07 statement
distributions accrued and paid on the asset-backed
securities by type and by class or series and any
principal or interest shortfalls or carryovers.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(iv) The amount of excess cash flow or excess 6.07 statement
spread and the disposition of excess cash flow.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(4) Beginning and ending principal balances of the 6.07 statement
asset-backed securities.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(5) Interest rates applicable to the pool assets and the 6.07 statement
asset-backed securities, as applicable. Consider
providing interest rate information for pool assets in
appropriate distributional groups or incremental ranges.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(6) Beginning and ending balances of transaction 6.07 statement
accounts, such as reserve accounts, and material account
activity during the period.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(7) Any amounts drawn on any credit enhancement or other 6.07 statement
support identified in Item 1114 of Regulation AB, as
applicable, and the amount of coverage remaining under
any such enhancement, if known and applicable.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(8) Number and amount of pool assets at the beginning 6.07 statement
and ending of each period, and updated pool composition
information, such as weighted average coupon, weighted Updated pool composition
average life, weighted average remaining term, pool information fields to be
factors and prepayment amounts. as specified by Depositor
from time to time
-------------- --------------- ---------------------------------------------------------- ---------------------------
(9) Delinquency and loss information for the period. 6.07 statement.
In addition, describe any material changes to the Form 10-D report: Master
information specified in Item 1100(b)(5) of Regulation Servicer
AB regarding the pool assets.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(10) Information on the amount, terms and general 6.07 statement
purpose of any advances made or reimbursed during the
period, including the general use of funds advanced and
the general source of funds for reimbursements.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(11) Any material modifications, extensions or waivers 6.07 statement
to pool asset terms, fees, penalties or payments during
the distribution period or that have cumulatively become
material over time.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(12) Material breaches of pool asset representations or Form 10-D report:
warranties or transaction covenants. Securities Adminstrator
(subject to Depositor
approval)
-------------- --------------- ---------------------------------------------------------- ---------------------------
(13) Information on ratio, coverage or other tests used 6.07 statement
for determining any early amortization, liquidation or
other performance trigger and whether the trigger was
met.
-------------- --------------- ---------------------------------------------------------- ---------------------------
(14) Information regarding any new issuance of Form 10-D report:
asset-backed securities backed by the same asset pool, Depositor
[information regarding] any pool asset changes (other Form 10-D report: Master
than in connection with a pool asset converting into Servicer
cash in accordance with its terms), such as additions or
removals in connection with a prefunding or revolving
period and pool asset substitutions and repurchases (and
purchase rates, if applicable), and cash flows available
for future purchases, such as the balances of any
prefunding or revolving accounts, if applicable.
Disclose any material changes in the solicitation, Form 10-D report: Master
credit-granting, underwriting, origination, acquisition Servicer
or pool selection criteria or procedures, as applicable,
used to originate, acquire or select the new pool assets.
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1121(B) - PRE-FUNDING OR REVOLVING PERIOD Depositor
INFORMATION
Updated pool information as required under Item 1121(b).
-------------- --------------- ---------------------------------------------------------- ---------------------------
2 LEGAL PROCEEDINGS
-------------- --------------- ---------------------------------------------------------- ---------------------------
Item 1117 - Legal proceedings pending against the
following entities, or their respective property, that
is material to Certificateholders, including proceedings
known to be contemplated by governmental authorities:
Sponsor (Seller) Sponsor
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Master Servicer, affiliated Servicer, other Servicer Master Servicer
servicing 20% or more of pool assets at time of report,
other material servicers
Certificate Administrator Certificate Administrator
Originator of 20% or more of pool assets as of the Master Servicer
Cut-off Date
Custodian Custodian
-------------- --------------- ---------------------------------------------------------- ---------------------------
3 SALES OF SECURITIES AND USE OF PROCEEDS
-------------- --------------- ---------------------------------------------------------- ---------------------------
INFORMATION FROM ITEM 2(A) OF PART II OF FORM 10-Q:
With respect to any sale of securities by the sponsor, Depositor
depositor or issuing entity, that are backed by the same
asset pool or are otherwise issued by the issuing
entity, whether or not registered, provide the sales and
use of proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if securities
were not registered.
-------------- --------------- ---------------------------------------------------------- ---------------------------
4 DEFAULTS UPON SENIOR SECURITIES
-------------- --------------- ---------------------------------------------------------- ---------------------------
INFORMATION FROM ITEM 3 OF PART II OF FORM 10-Q:
Report the occurrence of any Event of Default (after Trustee or Securities
expiration of any grace period and provision of any Administrator
required notice)
-------------- --------------- ---------------------------------------------------------- ---------------------------
5 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
-------------- --------------- ---------------------------------------------------------- ---------------------------
INFORMATION FROM ITEM 4 OF PART II OF FORM 10-Q Trustee or Securities
Administrator
-------------- --------------- ---------------------------------------------------------- ---------------------------
6 SIGNIFICANT OBLIGORS OF POOL ASSETS
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1112(B) - SIGNIFICANT OBLIGOR FINANCIAL INFORMATION* Master Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the Item.
-------------- --------------- ---------------------------------------------------------- ---------------------------
7 SIGNIFICANT ENHANCEMENT PROVIDER INFORMATION
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1114(B)(2) - CREDIT ENHANCEMENT PROVIDER FINANCIAL
INFORMATION*
Determining applicable disclosure threshold Securities Administrator
Obtaining required financial information or effecting Securities Administrator
incorporation by reference
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1115(B) - DERIVATIVE COUNTERPARTY FINANCIAL
INFORMATION*
Determining current maximum probable exposure Depositor
Determining current significance percentage Securities Administrator
Obtaining required financial information or effecting Securities Administrator
incorporation by reference
-------------- --------------- ---------------------------------------------------------- ---------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the Items.
-------------- --------------- ---------------------------------------------------------- ---------------------------
8 OTHER INFORMATION
-------------- --------------- ---------------------------------------------------------- ---------------------------
DISCLOSE ANY INFORMATION REQUIRED TO BE REPORTED ON FORM The Responsible Party for
8-K DURING THE PERIOD COVERED BY THE FORM 10-D BUT NOT the applicable Form 8-K
REPORTED item as indicated below
-------------- --------------- ---------------------------------------------------------- ---------------------------
9 EXHIBITS
-------------- --------------- ---------------------------------------------------------- ---------------------------
Distribution report Securities Administrator
-------------- --------------- ---------------------------------------------------------- ---------------------------
EXHIBITS REQUIRED BY ITEM 601 OF REGULATION S-K, SUCH AS Depositor
MATERIAL AGREEMENTS
-------------- --------------- ---------------------------------------------------------- ---------------------------
8-K Must be filed within four business days of an event reportable on Form 8-K.
-------------- --------------- ---------------------------------------------------------- ---------------------------
1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required regarding entry into or amendment Master Servicer; or any
of any definitive agreement that is material to the of the following that is
securitization, even if depositor is not a party. a party to the agreement
if Master Servicer is
Examples: servicing agreement, custodial agreement. not: Trustee, Sponsor,
Depositor, Certificate
Note: disclosure not required as to definitive Administrator
agreements that are fully disclosed in the prospectus
-------------- --------------- ---------------------------------------------------------- ---------------------------
1.02 TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required regarding termination of any Master Servicer; or any
definitive agreement that is material to the of the following that is
securitization (other than expiration in accordance with a party to the agreement
its terms), even if depositor is not a party. if Master Servicer is
not: Trustee, Sponsor,
Examples: servicing agreement, custodial agreement. Depositor, Certificate
Administrator
-------------- --------------- ---------------------------------------------------------- ---------------------------
1.03 BANKRUPTCY OR RECEIVERSHIP
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required regarding the bankruptcy or Master Servicer
receivership, if known to the Master Servicer, with
respect to any of the following:
Sponsor (Seller), Depositor, Master Servicer, affiliated
Servicer, other Servicer servicing 20% or more of pool
assets at time of report, other material servicers,
Certificate Administrator, Trustee, significant obligor,
credit enhancer (10% or more), derivatives counterparty,
Custodian
-------------- --------------- ---------------------------------------------------------- ---------------------------
2.04 TRIGGERING EVENTS THAT ACCELERATE OR INCREASE A DIRECT
FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN
OFF-BALANCE SHEET ARRANGEMENT
-------------- --------------- ---------------------------------------------------------- ---------------------------
Includes an early amortization, performance trigger or Master Servicer
other event, including event of default, that would
materially alter the payment priority/distribution of
cash flows/amortization schedule.
Disclosure will be made of events other than waterfall
triggers which are disclosed in the 6.07 statement
-------------- --------------- ---------------------------------------------------------- ---------------------------
3.03 MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required of any material modification to Securities Administrator
documents defining the rights of Certificateholders,
including the Pooling and Servicing Agreement
-------------- --------------- ---------------------------------------------------------- ---------------------------
5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS;
CHANGE IN FISCAL YEAR
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required of any amendment "to the Depositor
governing documents of the issuing entity"
-------------- --------------- ---------------------------------------------------------- ---------------------------
5.06 CHANGE IN SHELL COMPANY STATUS
-------------- --------------- ---------------------------------------------------------- ---------------------------
[Not applicable to ABS issuers] Depositor
-------------- --------------- ---------------------------------------------------------- ---------------------------
6.01 ABS INFORMATIONAL AND COMPUTATIONAL MATERIAL
-------------- --------------- ---------------------------------------------------------- ---------------------------
[Not included in reports to be filed under Section 3.18] Depositor
-------------- --------------- ---------------------------------------------------------- ---------------------------
6.02 CHANGE OF SERVICER OR TRUSTEE
-------------- --------------- ---------------------------------------------------------- ---------------------------
Requires disclosure of any removal, replacement, Trustee or Master Servicer
substitution or addition of any master servicer,
affiliated servicer, other servicer servicing 10% or
more of pool assets at time of report, other material
servicers, certificate administrator or trustee. Reg AB
disclosure about any new servicer or trustee is also
required.
-------------- --------------- ---------------------------------------------------------- ---------------------------
6.03 CHANGE IN CREDIT ENHANCEMENT OR OTHER EXTERNAL SUPPORT
-------------- --------------- ---------------------------------------------------------- ---------------------------
Covers termination of any enhancement in manner other Depositor or Securities
than by its terms, the addition of an enhancement, or a Administrator
material change in the enhancement provided. Applies to
external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is
also required.
-------------- --------------- ---------------------------------------------------------- ---------------------------
6.04 FAILURE TO MAKE A REQUIRED DISTRIBUTION Trustee or Securities
Administrator
-------------- --------------- ---------------------------------------------------------- ---------------------------
6.05 SECURITIES ACT UPDATING DISCLOSURE
-------------- --------------- ---------------------------------------------------------- ---------------------------
If any material pool characteristic differs by 5% or Depositor
more at the time of issuance of the securities from the
description in the final prospectus, provide updated Reg
AB disclosure about the actual asset pool.
-------------- --------------- ---------------------------------------------------------- ---------------------------
If there are any new servicers or originators required Depositor
to be disclosed under Regulation AB as a result of the
foregoing, provide the information called for in Items
1108 and 1110 respectively.
-------------- --------------- ---------------------------------------------------------- ---------------------------
7.01 REGULATION FD DISCLOSURE Depositor
-------------- --------------- ---------------------------------------------------------- ---------------------------
8.01 OTHER EVENTS
-------------- --------------- ---------------------------------------------------------- ---------------------------
Any event, with respect to which information is not Depositor
otherwise called for in Form 8-K, that the registrant
deems of importance to security holders.
-------------- --------------- ---------------------------------------------------------- ---------------------------
9.01 FINANCIAL STATEMENTS AND EXHIBITS The Responsible Party
applicable to reportable
event
-------------- ------------------------------------------------------------------------------------------------------
10-K Must be filed within 90 days of the fiscal year end for the registrant.
-------------- --------------- ---------------------------------------------------------- ---------------------------
9B OTHER INFORMATION
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclose any information required to be reported on Form The Responsible Party for
8-K during the fourth quarter covered by the Form 10-K the applicable Form 8-K
but not reported item as indicated above
-------------- --------------- ---------------------------------------------------------- ---------------------------
15 EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1112(B) - SIGNIFICANT OBLIGOR FINANCIAL INFORMATION Master Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1114(B)(2) - CREDIT ENHANCEMENT PROVIDER FINANCIAL
INFORMATION
Determining applicable disclosure threshold Securities Administrator
Obtaining required financial information or effecting Securities Administrator
incorporation by reference
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1115(B) - DERIVATIVE COUNTERPARTY FINANCIAL
INFORMATION
Determining current maximum probable exposure Depositor
Determining current significance percentage Securities Administrator
Obtaining required financial information or effecting Securities Administrator
incorporation by reference
-------------- --------------- ---------------------------------------------------------- ---------------------------
Item 1117 - Legal proceedings pending against the
following entities, or their respective property, that
is material to Certificateholders, including proceedings
known to be contemplated by governmental authorities:
Sponsor (Seller) Sponsor
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Master Servicer, affiliated Servicer, other Servicer Master Servicer
servicing 20% or more of pool assets at time of report,
other material servicers
Certificate Administrator Certificate Administrator
Originator of 20% or more of pool assets as of the Master Servicer
Cut-off Date
Custodian Custodian
-------------- --------------- ---------------------------------------------------------- ---------------------------
Item 1119 - Affiliations and relationships between the
following entities, or their respective affiliates, that
are material to Certificateholders:
Sponsor (Seller) Sponsor
Depositor Depositor
Trustee Trustee
Master Servicer, affiliated Servicer, other Servicer Master Servicer
servicing 20% or more of pool assets at time of report,
other material servicers
Certificate Administrator Certificate Administrator
Originator Master Servicer
Custodian Custodian
Credit Enhancer/Support Provider Securities Administrator
Significant Obligor Master Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1122 - ASSESSMENT OF COMPLIANCE WITH SERVICING Each Party participating
CRITERIA in the servicing function
-------------- --------------- ---------------------------------------------------------- ---------------------------
ITEM 1123 - SERVICER COMPLIANCE STATEMENT Master Servicer, Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
