EXHIBIT 4.2
INDENTURE
BETWEEN
[ ] LOAN TRUST 200 - ,
AS ISSUER,
AND
[ ],
AS INDENTURE TRUSTEE
Dated as of , 200
Relating to
[ ] TRUST 200 -
MORTGAGE BACKED NOTES, SERIES 200 -
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................3
Section 1.01. General Definitions.....................................3
ARTICLE II THE NOTES....................................................26
Section 2.01. Forms Generally........................................26
Section 2.02. Forms of Certificate of Authentication.................26
Section 2.03. General Provisions With Respect to Principal and
Interest Payment.......................................27
Section 2.04. Denominations..........................................27
Section 2.05. Execution, Authentication, Delivery and Dating.........27
Section 2.06. Registration, Registration of Transfer and Exchange....28
Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes.............29
Section 2.08. Payments of Principal and Interest.....................30
Section 2.09. Persons Deemed Owner...................................31
Section 2.10. Cancellation...........................................32
Section 2.11. Authentication and Delivery of Notes...................32
Section 2.12. Book-Entry Note........................................34
Section 2.13. Termination of Book Entry System.......................34
ARTICLE III COVENANTS....................................................35
Section 3.01. Payment of Notes.......................................35
Section 3.02. Maintenance of Office or Agency........................35
Section 3.03. Money for Note Payments to Be Held In Trust............35
Section 3.04. Existence of Issuer....................................37
Section 3.05. Protection of Trust Estate.............................38
Section 3.06. Annual Opinions as to Collateral.......................38
Section 3.07. Performance of Obligations; Servicing Agreement........39
Section 3.08. Investment Company Act.................................39
Section 3.09. Negative Covenants.....................................39
Section 3.10. Annual Statement as to Compliance......................40
Section 3.11. Restricted Payments....................................41
Section 3.12. Treatment of Notes as Debt for Tax Purposes............41
Section 3.13. Notice of Events of Default............................41
Section 3.14. Further Instruments and Acts...........................41
ARTICLE IV SATISFACTION AND DISCHARGE...................................41
Section 4.01. Satisfaction and Discharge of Indenture................41
Section 4.02. Application of Trust Money.............................43
ARTICLE V DEFAULTS AND REMEDIES........................................43
Section 5.01. Event of Default.......................................43
Section 5.02. Acceleration of Maturity; Rescission and Annulment.....44
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.......................45
Section 5.04. Remedies...............................................45
Section 5.05. Indenture Trustee May File Proofs of Claim.............46
Section 5.06. Indenture Trustee May Enforce Claims Without
Possession of Notes....................................47
Section 5.07. Application of Money Collected.........................47
Section 5.08. Limitation on Suits....................................48
Section 5.09. Unconditional Rights of Noteholders to Receive
Principal and Interest.................................49
Section 5.10. Restoration of Rights and Remedies.....................49
Section 5.11. Rights and Remedies Cumulative.........................49
Section 5.12. Delay or Omission Not Waiver...........................49
Section 5.13. Control by Noteholders.................................50
Section 5.14. Waiver of Past Defaults................................50
Section 5.15. Undertaking for Costs..................................50
Section 5.16. Waiver of Stay or Extension Laws.......................51
Section 5.17. Sale of Trust Estate...................................51
Section 5.18. Action on Notes........................................52
Section 5.19. No Recourse to Other Trust Estates or Other Assets
of the Issuer..........................................53
Section 5.20. Application of the Trust Indenture Act.................53
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ARTICLE VI THE INDENTURE TRUSTEE........................................53
Section 6.01. Duties of Indenture Trustee............................53
Section 6.02. Notice of Default......................................54
Section 6.03. Rights of Indenture Trustee............................55
Section 6.04. Not Responsible for Recitals or Issuance of Notes......55
Section 6.05. May Hold Notes.........................................55
Section 6.06. Money Held in Trust....................................55
Section 6.07. Eligibility, Disqualification..........................56
Section 6.08. Indenture Trustee's Capital and Surplus................56
Section 6.09. Resignation and Removal; Appointment of Successor......56
Section 6.10. Acceptance of Appointment by Successor.................57
Section 6.11. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee..........................58
Section 6.12. Preferential Collection of Claims Against Issuer.......58
Section 6.13. Co-Indenture Trustees and Separate Indenture
Trustees...............................................58
Section 6.14. Authenticating Agents..................................60
Section 6.15. Review of Mortgage Files...............................61
Section 6.16. Indenture Trustee Fees and Expenses....................62
Section 6.17. Tax Reporting..........................................63
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS...............................63
Section 7.01. Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders...............................63
Section 7.02. Preservation of Information; Communications to
Noteholders............................................63
Section 7.03. Reports by Indenture Trustee...........................64
Section 7.04. Reports by Issuer......................................64
Section 7.05 Exchange Act Reporting.................................64
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ARTICLE VIII ACCOUNTS, PAYMENTS OF INTEREST AND PRINCIPAL, AND
RELEASES.....................................................64
Section 8.01. Collection of Moneys...................................64
Section 8.02. Note Account; Distributions............................65
Section 8.03. Claims Upon the Insurance Policy; Insurance Policy
Payments Account.......................................67
Section 8.04. General Provisions Regarding the Note Accounts and
Mortgage Loans.........................................69
Section 8.05. Releases of Defective Mortgage Loans...................70
Section 8.06. Reports by Indenture Trustee to Noteholders;
Access to Certain Information..........................70
Section 8.07. Trust Estate Mortgage Files............................71
Section 8.08. Amendment to Servicing Agreement.......................71
Section 8.09. Delivery of the Mortgage Files Pursuant to
Servicing Agreement....................................71
Section 8.10. Servicer as Agent......................................72
Section 8.11. Termination of Servicer................................72
Section 8.12. Opinion of Counsel.....................................72
Section 8.13. Appointment of Custodians..............................72
Section 8.14. Rights of the Note Insurer to Exercise Rights of
Noteholders............................................73
Section 8.15. Trust Estate and Accounts Held for Benefit of the
Note Insurer...........................................73
Section 8.16. [Reserved.]............................................74
ARTICLE IX SUPPLEMENTAL INDENTURES......................................74
Section 9.01. Supplemental Indentures Without Consent of
Noteholders............................................74
Section 9.02. Supplemental Indentures With Consent of Noteholders....75
Section 9.03. Execution of Supplemental Indentures...................76
Section 9.04. Effect of Supplemental Indentures......................76
Section 9.05. Conformity With Trust Indenture Act....................76
Section 9.06. Reference in Notes to Supplemental Indentures..........76
Section 9.07. Amendments to Governing Documents......................77
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ARTICLE X REDEMPTION OF NOTES..........................................77
Section 10.01. Redemption.............................................77
Section 10.02. Form of Redemption Notice..............................78
Section 10.03. Notes Payable on Optional Redemption...................79
ARTICLE XI MISCELLANEOUS................................................79
Section 11.01. Compliance Certificates and Opinions...................79
Section 11.02. Form of Documents Delivered to Indenture Trustee.......79
Section 11.03. Acts of Noteholders....................................80
Section 11.04. Notices, etc., to Indenture Trustee, the Note
Insurer and Issuer.....................................81
Section 11.05. Notices and Reports to Noteholders; Waiver of
Notices................................................82
Section 11.06. Rules by Indenture Trustee.............................83
Section 11.07. Conflict With Trust Indenture Act......................83
Section 11.08. Effect of Headings and Table of Contents...............83
Section 11.09. Successors and Assigns.................................83
Section 11.10. Separability...........................................83
Section 11.11. Benefits of Indenture..................................83
Section 11.12. Legal Holidays.........................................83
Section 11.13. Governing Law..........................................83
Section 11.14. Counterparts...........................................84
Section 11.15. Recording of Indenture.................................84
Section 11.16. Issuer Obligation......................................84
Section 11.17. No Petition............................................84
Section 11.18. Inspection.............................................85
Section 11.19. Usury..................................................85
Section 11.20. Third Party Beneficiary................................85
SCHEDULES AND EXHIBITS
Schedule l..Mortgage Loan Schedule
Exhibit A...Form of Note
Exhibit B...Insurance Policy
Exhibit C...Form of Notice of Claim
Exhibit D...PMI Mortgage Loans
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CROSS-REFERENCE TABLE
Cross-reference sheet showing the location in the Indenture of the
provisions inserted pursuant to Sections 310 through 318(a) inclusive of the
Trust Indenture Act of 1939.*
Trust Indenture Act of 1939 Indenture Section
Section 310
(a) (1)............................... 6.07
(a) (2)............................... 6.07, 6.08
(a) (3)............................... 6.13
(a) (4)............................... Not Applicable
(a) (5)............................... 6.07
(b)................................... 6.07, 6.09
(c)................................... Not Applicable
Section 311
(a)................................... 6.12
(b)................................... 6.12
(c)................................... Not Applicable
Section 312
(a)................................... 7.01(a), 7.02(a)
(b)................................... 7.02(b)
(c)................................... 7.02(c)
Section 313
(a)................................... 7.03(a)
(b)................................... 7.03(a)
(c)................................... 11.05
(d)................................... 7.03(b)
Section 314
(a)(1)................................ 7.04
(a)(2)................................ 7.04
(a)(3)................................ 7.04
(a)(4)................................ 7.04
(b)(1)................................ 2.11(c), 11.01
(b)(2)................................ 3.06
(c)(1)................................ 2.11(d), 4.01,
8.02(d), 11.01
(c)(2)................................ 2.11(c), 4.01,
8.02(d), 11.01
(c)(3)................................ 8.02(d)
(d)(1)................................ 11.01(a)
(d)(2)................................ 11.01(a)
(d)(3)................................ 11.01(a)
(e)................................... 11.0 1(b)
Section 315
(a)................................... 6.01(b), 6.01(c)(1)
(b)................................... 6.02, 11.05
(c)................................... 6.01(a)
(d)(1)................................ 6.01(b), 6.01(c)
(d)(2)................................ 6.01(c)(2)
(d)(3)................................ 6.01(c)(3)
(e)................................... 5.15
Section 316
(a)................................... 5.20
(b)................................... 5.09
(c)................................... 5.20
Section 317
(a)(1)................................ 5.03
(a)(2)................................ 5.05
(b)................................... 3.01
Section 318
(a)................................... 11.07
___________________________
*This Cross-Reference Table is not part of the Indenture.
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THIS INDENTURE, dated as of (as amended or supplemented from
time to time as permitted hereby, this "Indenture"), is between
TRUST 200 - , a Delaware statutory trust (together with its permitted
successors and assigns, the "Issuer") and , as indenture trustee
(together with its permitted successors in the trusts hereunder, the
"Indenture Trustee").
Preliminary Statement
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for its Mortgage Backed Notes, Series 200 - (the
"Notes"), issuable as provided in this Indenture. All covenants and
agreements made by the Issuer herein are for the benefit and security of the
Holders of the Notes and the Note Insurer. The Issuer is entering into this
Indenture, and the Indenture Trustee is accepting the trusts created hereby,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
All things necessary to make this Indenture a valid agreement of the
Issuer in accordance with its terms have been done.
Granting Clause
The Issuer hereby Grants to the Indenture Trustee, for the exclusive
benefit of the Holders of the Notes and the Note Insurer, all of the Issuer's
right, title and interest in and to (a) the Mortgage Loans listed in Schedule
I to this Indenture (including property that secures a Mortgage Loan that
becomes an REO Property), including the related Mortgage Files delivered or
to be delivered to the Custodian, on behalf of the Indenture Trustee,
pursuant to the Mortgage Loan Sale Agreement, all payments of principal
received, collected or otherwise recovered after the Cut-off Date for each
Mortgage Loan, all payments of interest accruing on each Mortgage Loan after
the Cut-off Date therefor whenever received and all other proceeds received
in respect of such Mortgage Loans, and any Qualified Replacement Mortgage
Loan, (b) the Servicing Agreement, (c) the Mortgage Loan Sale Agreement, (d)
the Mortgage Loan Contribution Agreement, (e) the Management Agreement, (f)
the Other Insurance Policies, (g) all cash, instruments or other property
held or required to be deposited in the Collection Account and the Note
Account, including all investments made with funds in such accounts (but not
including any income on funds deposited in, or investments made with funds
deposited in, the Collection Account and the Note Account, which income shall
belong to and be for the account of the Servicer), and (h) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash
or other liquid assets, including, without limitation, all insurance proceeds
and condemnation awards. Such Grants are made, however, in trust, to secure
the Notes equally and ratably without prejudice, priority or distinction
between any Note and any other Note by reason of difference in time of
issuance or otherwise, and for the benefit of the Note Insurer to secure
(x) the payment of all amounts due on the Notes in accordance with their
terms, (y) the payment of all other sums payable under this Indenture and (z)
compliance with the provisions of this Indenture, all as provided in this
Indenture. All terms used in the foregoing granting clauses that are defined
in Section 1.01 are used with the meanings given in said Section.
The Indenture Trustee acknowledges such Grant, accepts the trusts
hereunder in accordance with the provisions of this Indenture and agrees to
perform the duties herein required to the end that the interests of the
Holders of the Notes may be adequately and effectively protected. The
Indenture Trustee agrees that it will hold the Insurance Policy and the PMI
Policy in trust and that it will hold any proceeds of any claim upon the
Insurance Policy and PMI Policy, solely for the use and benefit of the
Noteholders in accordance with the terms hereof and the Insurance Policy and
the PMI Policy, respectively.
ARTICLE I
DEFINITIONS
Section 1.01. General Definitions.
Except as otherwise specified or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Indenture, and the definitions of such terms are applicable
to the singular as well as to the plural forms of such terms and to the
masculine as well as to the feminine genders of such terms. Whenever
reference is made herein to an Event of Default or a Default known to the
Indenture Trustee or of which the Indenture Trustee has notice or knowledge,
such reference shall be construed to refer only to an Event of Default or
Default of which the Indenture Trustee is deemed to have notice or knowledge
pursuant to Section 6.01(d). All other terms used herein that are defined in
the Trust Indenture Act (as hereinafter defined), either directly or by
reference therein, have the meanings assigned to them therein.
"Accountant": A Person engaged in the practice of accounting who
(except when this Indenture provides that an Accountant must be Independent)
may be employed by or affiliated with the Issuer or an Affiliate of the
Issuer.
"Act": With respect to any Noteholder, as defined in Section 11.03.
"Administrative Fee Amount": For the Notes and any Payment Date, the
sum of the Monthly Servicing Fee and the Indenture Trustee's Fee, each
relating to such Payment Date.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract, relation to individuals or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent": Any Note Registrar, Paying Agent, Authenticating Agent or
Custodian.
"Aggregate Principal Balance": With respect to the Mortgage Loan Pool
and any Payment Date, the aggregate of the Principal Balances of the Mortgage
Loans as of the related Determination Date (or other specified date).
"Assignments": The original instrument of assignment of a Mortgage,
including any interim assignments, from the originator or any other holder of
any Mortgage Loan to the Indenture Trustee (that in each case may, to the
extent permitted by the laws of the state in which the related Mortgaged
Property is located, be a blanket instrument of assignment covering other
Mortgages and Mortgage Notes as well and that may also be an instrument of
assignment running directly from the mortgagee of record under the related
Mortgage to the Indenture Trustee).
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"Authenticating Agent": The Person, if any, appointed as
Authenticating Agent by the Issuer pursuant to Section 6.14, until any
successor Authenticating Agent for the Notes is named, and thereafter
"Authenticating Agent" shall mean such successor. The Authenticating Agent
shall be the Indenture Trustee. Any Authenticating Agent other than the
Indenture Trustee shall sign an instrument under which it agrees to be bound
by all of the terms of this Indenture applicable to the Authenticating Agent.
"Authorized Officer": With respect to (i) the Indenture Trustee, any
Responsible Officer, (ii) the Owner Trustee, the president, any vice
president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer, any
financial services officer or any other officer of the Owner Trustee
customarily performing functions similar to those performed by the above
officers and (iii) any other Person, the Chairman, Chief Operating Officer,
President or any Vice President of such Person.
"Available Funds": With respect to any Payment Date, the sum of the
amounts described in clauses (a) through (g) below, less (i) the
Administrative Fee Amount in respect of such Payment Date, (ii) Monthly
Advances and Servicing Advances previously made that are reimbursable to the
Servicer (other than those included in liquidation expenses for any
Liquidated Mortgage Loan and reimbursed from the related Liquidation Proceeds
and from Insurance Proceeds) with respect to the related Collection Period to
the extent permitted by the Servicing Agreement and (iii) the aggregate
amounts (A) deposited into the Collection Account or the Note Account that
may not be withdrawn therefrom pursuant to a final and nonappealable order of
a United States bankruptcy court of competent jurisdiction imposing a stay
pursuant to Section 362 of the Bankruptcy Code and that would otherwise have
been included in Available Funds on such Payment Date and (B) received by the
Indenture Trustee that are recoverable and sought to be recovered from the
Issuer as a voidable preference by a trustee in bankruptcy pursuant to the
Bankruptcy Code in accordance with a final nonappealable order of a court of
competent jurisdiction:
(a) all scheduled payments of interest received with respect to the
Mortgage Loans and due during the related Due Period and all other
interest payments on or in respect of such Mortgage Loans received by
or on behalf of the Servicer during the related Collection Period
(including Payments Ahead that are allocable to interest for the
related Due Period), net of amounts representing interest accrued on
such Mortgage Loans in respect of any period prior to the Cut-off
Dates, plus any Compensating Interest payments made by the Servicer in
respect of the related Mortgage Loans and any net income from related
REO Properties for such Collection Period;
(b) all scheduled payments of principal received with respect to the
Mortgage Loans and due during the related Due Period and all other
principal payments (including Principal Prepayments and Prepayment
Premiums) received or deemed to be received during the related
Collection Period (including Payments Ahead that are allocable as
principal for the related Due Period) in respect of such Mortgage Loans;
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(c) the aggregate of any Trust Insurance Proceeds collected by the Servicer
during the related Collection Period;
(d) the aggregate of any Net Liquidation Proceeds collected by the Servicer
during the related Collection Period;
(e) the aggregate of the Purchase Prices received in respect of any
Mortgage Loans that are required or permitted to be repurchased,
released, removed or substituted by the Seller during or in respect of
the related Collection Period, to the extent such amounts are received
by the Indenture Trustee on or before the related Deposit Date;
(f) the amount of any Monthly Advances made by the Servicer for such
Payment Date; and
(g) the aggregate of amounts deposited in the Note Account during such
Collection Period in connection with redemption of the Notes pursuant
to Article X.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Basic Documents": This Indenture, the Trust Agreement, the Servicing
Agreement, the Mortgage Loan Sale Agreement, the Mortgage Loan Contribution
Agreement, the Management Agreement, the Insurance Agreement and the
Indemnification Agreement.
"Beneficial Owner": With respect to a Book-Entry Note, the Person who
is the beneficial owner of such Note as reflected on the books of the
Clearing Agency for the Notes or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
"Best Efforts": Efforts determined to be in good faith and reasonably
diligent by the Person performing such efforts, specifically the Issuer or
the Servicer, as the case may be, in its reasonable discretion. Such efforts
do not require the Issuer or the Servicer, as the case may be, to enter into
any litigation, arbitration or other legal or quasi-legal proceeding, nor do
they require the Issuer or the Servicer, as the case may be, to advance or
expend fees or sums of money in addition to those specifically set forth in
this Indenture and the Servicing Agreement.
"Book-Entry Notes": Any Notes registered in the name of the Clearing
Agency or its nominee, ownership of which is reflected on the books of the
Clearing Agency or on the books of a person maintaining an account with such
Clearing Agency (directly or as an indirect participant in accordance with
the rules of such Clearing Agency).
"Book-Entry Termination": The time at which the book-entry
registration of the Book-Entry Notes shall terminate, as specified in
Section 2.13.
"Business Day": Any day other than (i) a Saturday or Sunday or (ii) a
day that is either a legal holiday or a day on which the Note Insurer is
closed or on which banking institutions in the State of New York, the State
of North Carolina, the state in which the Corporate Trust Office is located
or the State of Delaware are authorized or obligated by law, regulation or
executive order to be closed.
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"Certificate": As defined in the Trust Agreement.
"Certificate Distribution Account": As defined in the Trust Agreement.
"Certificateholders": As defined in the Trust Agreement.
"Clearing Agency": An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities and Exchange Act of 1934, as
amended, and the regulations of the Commission thereunder and shall initially
be The Depository Trust Company of New York, the nominee for which is Cede &
Co.
"Clearing Agency Participants": The entities for whom the Clearing
Agency will maintain book-entry records of ownership and transfer of
Book-Entry Notes, which may include securities brokers and dealers, banks and
trust companies and clearing corporations and certain other organizations.
"Closing Date": , the date of initial issuance of the Notes.
"Code": The Internal Revenue Code of 1986, as amended, and as may be
further amended from time to time, as successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form and proposed regulations thereunder to the extent
that, by reason of their proposed effective date, such proposed regulations
would apply.
"Collateral": The items Granted to the Indenture Trustee under the
Granting Clause of this Indenture.
"Collection Account": The segregated trust account established by the
Servicer and maintained pursuant to Section 2.02(b) of the Servicing
Agreement.
"Collection Period": As to any Payment Date, the period beginning on
the first day of the calendar month immediately preceding the month in which
such Payment Date occurs (except that, in the case of the first Payment Date,
the related Collection Period will commence on the Cut-off Date for each
Mortgage Loan) and ending on the last day of such calendar month.
"Combined Loan-to-Value Ratio": As defined in the Mortgage Loan Sale
Agreement.
"Commission": The Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time under the Trust Indenture Act or similar legislation
replacing the Trust Indenture Act.
"Compensating Interest": As defined in the Servicing Agreement.
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"Corporate Trust Office": The principal office of the Indenture
Trustee at which at any particular time its corporate trust business with
respect to this Indenture shall be principally administered, which office at
the date of the execution of this Indenture is located at ,
Attention: Trust 200 - , Series 200 - , with a copy to the
Indenture Trustee at , Attention: Loan Trust 200_.
"Cumulative Loss Percentage": As defined in the Servicing Agreement.
"Current Note Balance": With respect to any Note as of any date of
determination, the original principal amount of such Note, reduced by all
prior payments (including Insured Payments), if any, made with respect to
principal of such Note.
"Custodial Agreement": The Custody Agreement, dated as of ,
among the Servicer, the Custodian and the Indenture Trustee.
"Custodian": A Person who is at any time appointed by the Indenture
Trustee pursuant to Section 8.13 as a document custodian for the Mortgage
Files, which Person shall not be the Issuer or an Affiliate of the Issuer.
The Custodian shall initially be .
"Cut-off Date": .
"Default": Any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Defective Mortgage Loan": Any Mortgage Loan that is required to be
repurchased or substituted by the Seller pursuant to the Mortgage Loan Sale
Agreement.
"Deficiency Amount": With respect to the Notes and any Payment Date,
(A) the excess, if any, of (i) the Note Interest (net of any Relief Act
Interest Shortfalls and Prepayment Interest Shortfalls) for such Payment Date
over (ii) funds on deposit in the Note Account available to be distributed
therefor on such Payment Date and (B) the Guaranteed Principal Amount.
"Definitive Notes": Notes other than Book-Entry Notes.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by
a Qualified Replacement Mortgage Loan.
"Delinquency Amount": As of any Payment Date, the product of the
Rolling Delinquency Percentage for such Payment Date and the Mortgage Loans
as of the average Aggregate Principal Balance of the Mortgage Loans as of the
immediately preceding three Determination Dates.
"Delinquency Percentage": For any Payment Date, the rolling three
month average of the fraction, expressed as a percentage, (i) the numerator
of which is the aggregate of the Principal Balances as of the related
Determination Date of all Mortgage Loans that were 90 or more days
contractually delinquent, in foreclosure, REO Property or for which the
related Mortgagor was in a bankruptcy proceeding and the related Mortgage
Loan was 90 or more days contractually delinquent or paying a reduced Monthly
Payment as a result of a bankruptcy workout as of end of the related
Collection Period and the denominator of which is the Aggregate Principal
Balance of all Mortgage Loans as of the related Determination Date.
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"Deposit Date": The date each month on which funds on deposit in the
Collection Account are remitted by the Servicer to the Indenture Trustee for
deposit into the Note Account, which date shall be with respect to any
Payment Date, the 18th day of the month in which such Payment Date occurs, or
the next succeeding Business Day, if such 18th day is not a Business Day.
"Depositor": Wachovia Mortgage Loan Trust, LLC.
"Determination Date": As to any Payment Date, the last day of the Due
Period relating to such Payment Date.
"Due Period": With respect to any Payment Date, the period commencing
on the second day of the calendar month immediately preceding the calendar
month in which such Payment Date occurs (or, with respect to the first
Payment Date, commencing the day following the Cut-off Date for each Mortgage
Loan) and ending on the first day of the calendar month in which such Payment
Date occurs.
"Eligible Account": Either (A) a segregated account or accounts
maintained with an institution the deposits of which are insured by the Bank
Insurance Fund or the Savings Association Insurance Fund of the FDIC, the
unsecured and uncollateralized debt obligations of which shall be rated " "
or better by [Rating Agency] and " " or better by [Rating Agency] and in
the highest short term rating category by [Rating Agencies], and that is
either (i) a federal savings and loan association duly organized, validly
existing and in good standing under the federal banking laws, (ii) an
institution duly organized, validly existing and in good standing under the
applicable banking laws of any state, (iii) a national banking association
duly organized, validly existing and in good standing under the federal
banking laws, (iv) a principal subsidiary of a bank holding company, or
(v) which is approved in writing by the Note Insurer or (B) a trust account
maintained with the trust department of a federal or state chartered
depository institution or trust company, having capital and surplus of not
less than $50,000,000, acting in its fiduciary capacity, the unsecured and
uncollateralized debt obligations of which shall be rated " " or better by
[Rating Agency]. Any Eligible Accounts maintained with the Indenture Trustee
shall conform to the preceding clause (B).
"Event of Default": As defined in Section 5.01.
"Excess Cash": With respect to any Payment Date, will be equal to
Available Funds for such Payment Date, reduced by the sum of (i) the amount
payable to the PMI Insurer as premium for such Payment Date under the PMI
Policy, (ii) the Note Insurer Premium owing to the Note Insurer in respect of
the Notes for such Payment Date, (iii) the Note Interest for such Payment
Date, (iv) the Monthly Principal for such Payment Date and (v) the amount
owing to the Note Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Insurance Policy in respect of the Notes and any
other amounts owing to the Note Insurer under the Insurance Agreement
(including any unpaid Note Insurer Premiums in respect of the Notes).
"Excess Cash Payment". As defined in clause fourth of Section 8.02(c).
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"FDIC": The Federal Deposit Insurance Corporation and its successors
in interest.
"Final Certification": A certification as to the completeness of each
Mortgage File prepared by the Custodian on behalf of the Indenture Trustee,
and provided by the Indenture Trustee on or before the first anniversary of
the Closing Date pursuant to Section 6.15(b).
"Final Maturity Date": The Payment Date in November 2030.
"Fiscal Agent": As defined in the Insurance Policy.
"Full Prepayment": With respect to any Mortgage Loan, when any one of
the following occurs: (i) payment is made by the Mortgagor to the Servicer
of 100% of the outstanding principal balance of such Mortgage Loan, together
with all accrued and unpaid interest thereon at the Mortgage Interest Rate on
such Mortgage Loan, (ii) payment is made to the Indenture Trustee of the
Purchase Price of such Mortgage Loan in connection with the purchase of such
Mortgage Loan by the Seller or the Servicer or (iii) payment is made to the
Servicer of all Insurance Proceeds and Liquidation Proceeds, and other
payments, if any, that have been determined by the Servicer in accordance
with the provisions of the Servicing Agreement to be finally recoverable, in
the Servicer's reasonable judgment, in respect of such Mortgage Loan.
"Grant": To assign, transfer, mortgage, pledge, create and grant a
security interest in, deposit, set-over and confirm. A Grant of a Mortgage
Loan and related Mortgage Files, a Permitted Investment, the Servicing
Agreement, the Mortgage Loan Sale Agreement, the Mortgage Loan Contribution
Agreement, or any other instrument shall include all rights, powers and
options (but none of the obligations) of the Granting party thereunder,
including, without limitation, the immediate and continuing right to claim
for, collect, receive and give receipts for principal and interest payments
thereunder, insurance proceeds, Purchase Prices and all other moneys payable
thereunder and all proceeds thereof, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the Granting party or
otherwise, and generally to do and receive anything that the Granting party
is or may be entitled to do or receive thereunder or with respect thereto.
"Guaranteed Principal Amount": (a) With respect to any Payment Date
(other than Payment Date specified in (b)), the Overcollateralization
Deficit, if any, for such Payment Date and (b) on the earlier to occur of the
Payment Date in December, 2030 (after giving effect to all distributions of
principal on the Notes) or the Redemption Date (after giving effect to all
distribution of principal on the Notes), an amount equal to the Note Balance.
"Highest Lawful Rate": As defined in Section 11.19.
"Indemnification Agreement": As defined in the Insurance Agreement.
"Indenture": This instrument as originally executed and, if from time
to time supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof, as so supplemented
or amended. All references in this instrument to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this instrument as
originally executed. The words "herein", "hereof", "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section, Subsection or other subdivision.
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"Indenture Trustee": , and any Person resulting from or
surviving any consolidation or merger to which it may be a party until a
successor Person shall have become the Indenture Trustee pursuant to the
applicable provisions of this Indenture, and thereafter "Indenture Trustee"
shall mean such successor Person.
"Indenture Trustee's Fee": With respect to the Notes, the Indenture
Trustee's monthly fee, equal to 1/12th of % of the Aggregate
Principal Balance of the Mortgage Loans as of the first day of the applicable
Due Period.
"Independent": When used with respect to any specified Person, means
such a Person who (i) is in fact independent of the Issuer and any other
obligor upon the Notes, (ii) does not have any direct financial interest or
any material indirect financial interest in the Issuer or in any such other
obligor or in an Affiliate of the Issuer or such other obligor, and (iii) is
not connected with the Issuer or any such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is herein provided that any
Independent Person's opinion or certificate shall be furnished to the
Indenture Trustee, such Person shall be appointed by an Issuer Order and such
opinion or certificate shall state that the signer has read this definition
and that the signer is Independent within the meaning hereof.
"Individual Note": A Note of an original principal amount of
$ (provided, however, one Note may be less than that amount); a Note
of an original principal amount in excess of $ shall be deemed to be
a number of Individual Notes equal to the quotient obtained by dividing such
original principal amount by $ .
"Initial Certification": A certification as to the completeness of
each Mortgage File prepared by the Custodian on behalf of the Indenture
Trustee and provided by the Custodian on the Closing Date pursuant to
Section 6.15(a).
"Initial Redemption Date": The first Payment Date on which the
aggregate Note Balance is less than 10% of the Original Note Balance.
"Insurance Agreement": The Insurance and Indemnity Agreement, dated as
of , among the Note Insurer, the Issuer, the Seller and the
Depositor.
"Insurance Policy": The note guaranty insurance policy No. ,
dated , issued by the Note Insurer to the Indenture Trustee for the
benefit of the Noteholders, pursuant to which the Note Insurer guarantees
payment of Insured Payments. A specimen of the Insurance Policy is attached
hereto as Exhibit B.
"Insurance Policy Payments Account": The account established pursuant
to Section 8.03 hereof.
"Insured Payments": As to the Notes and any Payment Date, the amount
required to be paid by the Note Insurer under the Insurance Policy.
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"Insurance Proceeds": As defined in the Servicing Agreement.
"Interest Period": With respect to a Payment Date, the calendar month
immediately preceding the month in which such Payment Date occurs.
"Issuer": Loan Trust 200 - , a Delaware statutory trust.
"Issuer Order" and "Issuer Request": A written order or request of the
Issuer signed on behalf of the Issuer by an Authorized Officer of the Owner
Trustee or, in the case of such order or request required by Section 2.11, by
an Authorized Officer of the holder of the Certificate and delivered to the
Indenture Trustee or the Authenticating Agent, as applicable.
"Letter Agreement": The Letter of Representations to The Depository
Trust Company from the Indenture Trustee and the Issuer dated .
"Liquidated Mortgage Loan": As defined in the Servicing Agreement.
"Liquidation Date": With respect to any Mortgage Loan, the date of the
final receipt of all Liquidation Proceeds, Insurance Proceeds or other
payments with respect to such Mortgage Loan.
"Liquidation Proceeds": As defined in the Servicing Agreement.
"Loan-to-Value Ratio": As defined in the Mortgage Loan Sale Agreement.
"Management Agreement": That certain agreement, dated as of ,
between the Issuer and the Indenture Trustee pursuant to which the Indenture
Trustee, as manager, will perform certain obligations of the Issuer hereunder.
"Maturity": With respect to any Note, the date on which the entire
unpaid principal amount of such Note becomes due and payable as therein or
herein provided, whether at the Final Maturity Date or by declaration of
acceleration, call for redemption or otherwise.
"Monthly Advance": As defined the Servicing Agreement.
"Monthly Payment": With respect to any Mortgage Note, the amount of
each monthly payment payable under such Mortgage Note by the Mortgagor in
accordance with its terms, including, one month's accrued interest on the
related Principal Balance at the then applicable Mortgage Interest Rate, but
net of any portion of such monthly payment that represents late payment
charges, extension fees or collections allocable to payments to be made by
Mortgagors for payment of insurance premiums or similar items.
"Monthly Principal": For the Notes and any Payment Date, an amount
equal to (a) the aggregate of (i) all scheduled payments of principal
received (or advanced or to be advanced on the related Deposit Date) with
respect to the Mortgage Loans and due during the related Due Period and all
other amounts collected, received or otherwise recovered in respect of
principal on such Mortgage Loans (including Principal Prepayments, but not
including Payments Ahead that are not allocable to principal for the related
Due Period) during or in respect of the related Collection Period, (ii) the
aggregate of the amounts allocable to principal deposited in the Note Account
on the related Deposit Date by the Issuer, the Depositor, the Servicer or the
Note Insurer in connection with a repurchase, release, removal or
substitution of any Mortgage Loans pursuant to this Indenture, and (iii) in
connection with the redemption of the Notes, that portion of the Redemption
Price in respect of principal, reduced by (b) the amount of any
Overcollateralization Surplus and Payment Date.
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"Monthly Servicing Fee": As defined in the Servicing Agreement.
["Moody's": Xxxxx'x Investors Service, Inc. and its successors in
interest.]
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple in real property securing a Mortgage
Loan.
"Mortgage File": As defined in the Mortgage Loan Sale Agreement.
"Mortgage Interest Rate": With respect to each Mortgage Loan, the rate
per annum set forth in the related Mortgage Note at which interest accrues on
such Mortgage Loan, in each case after giving effect to any modification of a
Mortgage Loan for any period in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Servicer in
accordance with the Servicing Agreement.
"Mortgage Loan": Each of the mortgage loans Granted to the Indenture
Trustee under this Indenture as security for the Notes and that from time to
time comprise part of the Trust Estate, including any property that secures a
Mortgage that becomes REO Property. The Mortgage Loans are listed on the
Mortgage Loan Schedule annexed hereto as Schedule I.
"Mortgage Loan Contribution Agreement": That certain agreement, dated
as of , between the Depositor and the Issuer pursuant to which the
Mortgage Loans will be acquired from the Depositor by the Issuer for
inclusion in the Trust Estate.
"Mortgage Loan Pool": The pool of Mortgage Loans Granted to the
Indenture Trustee under this Indenture as security for the Notes.
"Mortgage Loan Sale Agreement": That certain agreement, dated as of
, between the Seller and the Depositor pursuant to which the
Mortgage Loans will be acquired from the Seller by the Depositor.
"Mortgage Loan Schedule": As of any date, the schedule of mortgage
loans included in the Trust Estate, Schedule I hereto identifies the Mortgage
Loans being Granted to the Indenture Trustee on the Closing Date. The
Mortgage Loan Schedule shall be amended by the Servicer as appropriate from
time to time to reflect the deletion and substitution of Mortgage Loans in
accordance with the terms of the Basic Documents. The Mortgage Loan Schedule
shall identify each Mortgage Loan by the Servicer's loan number and address
(including the state) of the related Mortgaged Property and shall set forth
as to each Mortgage Loan the initial Loan-to-Value Ratio or Combined
Loan-to-Value Ratio, the Principal Balance as of the Cut-off Date, the
Mortgage Interest Rate, the currently Monthly Payment amount and the stated
maturity date of the related Mortgage Note. The Issuer shall cause the
initial Mortgage Loan Schedule to be delivered by the Seller to the Indenture
Trustee in both physical and computer-readable form.
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"Mortgage Note": The note or other instrument evidencing the
indebtedness of a Mortgagor under the related Mortgage Loan.
"Mortgaged Property": The underlying property securing a Mortgage Note.
"Mortgagor": The obligor under a Mortgage Note.
"Net Liquidation Proceeds": As defined in the Servicing Agreement.
"Nonrecoverable Advance": As defined in the Servicing Agreement.
"Note Account": The segregated trust account, which shall be an
Eligible Account, established and maintained pursuant to Section 8.02 and
entitled " , as Indenture Trustee for Loan Trust
200 - Loan Backed Notes, Series 200 - Note Account," on behalf of
the Noteholders and the Note Insurer.
"Note Balance": With respect to the Notes, the aggregate of the
Current Note Balances of all Notes Outstanding at the time of determination.
"Noteholder" or "Holder": The Person in whose name a Note is
registered in the Note Register, except that, solely for the purpose of
taking any action under Section 5.02 or giving of any consent pursuant to
this Indenture, any Note registered in the name of the Issuer, the Seller,
the Servicer or the Depositor or any Persons actually known by a Responsible
Officer of the Indenture Trustee to be an Affiliate of the Issuer, the
Seller, the Servicer or the Depositor shall be deemed not to be Outstanding
and the percentage interest evidenced thereby shall not be taken into account
in determining whether Holders of the requisite percentage interests
necessary to take any such action or effect any such consent have acted or
consented unless the Issuer, the Seller, the Servicer, the Depositor or any
such Person is an owner of record of all of the Notes.
"Note Insurer": , a stock insurance company, and
successors thereto.
"Note Insurer Premium Letter": The commitment letter dated ,
from the Note Insurer to the Seller regarding the issuance of a financial
guaranty insurance policy.
"Note Insurer Default": The existence and continuance of any of the
following:
(a) the Note Insurer fails to make a payment required under the Insurance
Policy in accordance with its terms;
(b) the Note Insurer (A) files any petition or commences any case or
proceeding under any provision or chapter of the Bankruptcy Code or any
other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (B) makes a general
assignment for the benefit of its creditors, or (C) has an order for
relief entered against it under the Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and
nonappealable; or
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(c) a court of competent jurisdiction, the New York Department of Insurance
or other competent regulatory authority enters a final and
nonappealable order, judgment or decree (A) appointing a custodian,
trustee, agent or receiver for the Note Insurer or for all or any
material portion of its property or (B) authorizing the taking of
possession by a custodian, trustee, agent or receiver of the Note
Insurer (or the taking of possession of all or any material portion of
the property of the Note Insurer).
Notwithstanding anything to the contrary contained herein, upon the
existence and continuance of a Note Insurer Default, the consent by the Note
Insurer shall not be required to any action or inaction hereunder and the
Note Insurer shall not have any rights with respect thereto; provided,
however, that such rights shall be immediately reinstated following cure of
such Note Insurer Default.
"Note Insurer Premium": The premium due to the Note Insurer under the
Note Insurer Premium Letter on the Closing Date and on each Payment Date
thereafter, which amount as to each Payment Date shall be equal to the
product of the Note Insurer Premium Rate and the related Note Balance
immediately prior to such Payment Date.
"Note Insurer Premium Rate": The premium percentage specified in the
Note Insurer Premium Letter.
"Note Interest": As to the Notes and any Payment Date, the amount of
interest payable to Holders of such Notes on such Payment Date, which amount
shall be equal to interest at 1/12th of the Note Interest Rate on the Note
Balance as of the preceding Payment Date (after giving effect to the payment,
if any, in reduction of principal made on such Notes on such preceding
Payment Date). All calculations of interest on the Notes will be computed on
the basis of twelve thirty-day months and a year of 360 days.
"Note Interest Rate": With respect to each Interest Period prior to
the Initial Redemption Date, % per annum, and for each Interest
Period thereafter, ______% per annum.
"Note Register": As defined in Section 2.06.
"Note Registrar": As defined in Section 2.06.
"Notes": The Loan Trust 200 - Mortgage Backed Notes, Series
200 - , issued pursuant to this Indenture.
"Notice of Claim": The notice required to be furnished by the
Indenture Trustee to the Note Insurer in the event an Insured Payment is
required to be paid under the Insurance Policy with respect to any Payment
Date, in the form set forth as Exhibit C hereto.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, Chief Operating Officer
or a Vice President of the Seller, the Depositor, the Servicer or, in the
case of the Issuer, an Authorized Officer of the Owner Trustee, as the case
may be, and delivered to the Indenture Trustee, Note Insurer or each Rating
Agency, as the case may be.
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"Opinion of Counsel": A written opinion of counsel reasonably
acceptable to the Indenture Trustee and, in the case of opinions delivered to
the Note Insurer, reasonably acceptable to it. Any expense related to
obtaining an Opinion of Counsel for an action requested by a party shall be
borne by the party required to obtain such opinion or seeking to effect the
action that requires the delivery of such Opinion of Counsel, except in such
instances where such opinion is at the request of the Indenture Trustee, in
which case such expense shall be an expense of the Servicer.
"Original Note Balance": The aggregate principal balance of the Notes
at the issue date thereof, equal to $ .
"Other Insurance Policies": All insurance policies insuring any
Mortgage Loan or Mortgaged Property, to the extent the Issuer or the
Indenture Trustee has any interest therein, including the PMI Policy.
"Outstanding": As of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture except:
(i) Definitive Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent (other than the Issuer) in trust for the
Holders of such Notes; provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor, satisfactory to the Indenture
Trustee, has been made;
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser (as defined by the Uniform Commercial
Code of the applicable jurisdiction); and
(iv) Notes alleged to have been destroyed, lost or stolen that have been
paid as provided for in Section 2.07;
provided, however, that in determining whether the Holders
of the requisite percentage of the Note Balance of the
Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by
the Issuer, any other obligor upon the Notes or any Affiliate of
the Issuer, the Seller, the Servicer or the Depositor or such
other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Notes that the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes or any Affiliate of the
Issuer, the Seller, the Servicer or the Depositor or such other
obligor; provided, further, however, that Notes that have been
paid with the proceeds of the Insurance Policy shall be deemed to
be Outstanding for the purposes of this Indenture, such payment
to be evidenced by written notice from the Note Insurer to the
Indenture Trustee, and the Note Insurer shall be deemed to the
Holder thereof to the extent of any payments thereon made by the
Note Insurer.
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"Overcollateralization Amount": As to any Payment Date, the amount, if
any, by which (x) the Aggregate Principal Balance of the Mortgage Loans as of
the end of the related Due Period exceeds (y) the Note Balance for such
Payment Date, after taking into account Monthly Principal (disregarding any
permitted reduction thereof in such Monthly Principal due to an
Overcollateralization Surplus made on such Payment Date) to be applied in
reduction of the Note Balance on such Payment Date. If the Aggregate
Principal Balance of the Mortgage Loans is less than the Note Balance for
such Payment Date, determined as provided above, the Overcollateralization
Amount and Payment Date shall be zero.
"Overcollateralization Deficiency Amount": With respect to any Payment
Date is the amount, if any, by which the Required Overcollateralization
Amount exceeds the Overcollateralization Amount.
"Overcollateralization Deficit": As to any Payment Date, the amount,
if any, by which the Note Balance on such Payment Date (after taking into
account any payments to be paid on such Payment Date in reduction of the Note
Balance, including Excess Cash payments) exceeds the Aggregate Principal
Balance of the Mortgage Loans as of the end of the related Due Period. If
the Aggregate Principal Balance of the Mortgage Loans as determined pursuant
to the preceding sentence is greater than the related Note Balance for such
Payment Date determined as provided above, the Overcollateralization Deficit
for such Payment Date shall be zero.
"Overcollateralization Surplus": As to any Payment Date, the amount,
if any, by which (x) the related Overcollateralization Amount on such Payment
Date exceeds (y) the related Required Overcollateralization Amount on such
Payment Date.
"Owner Trustee": , not in its individual capacity, but solely
as owner trustee under the Trust Agreement, and any successor owner trustee
thereunder.
"Owner Trustee Fee": The fee payable to the Owner Trustee pursuant to
the Trust Agreement.
"Paying Agent": The Indenture Trustee or any other depository
institution or trust company that is authorized by the Issuer pursuant to
Section 3.03 to pay the principal of, or interest on, any Notes on behalf of
the Issuer, which agent, if not the Indenture Trustee, shall have signed an
instrument agreeing to be bound by the terms of this Indenture applicable to
the Paying Agent.
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"Payment Ahead": As defined in the Servicing Agreement.
"Payment Date": The day of each month or, if any such day is not
a Business Day, the Business Day immediately following such day,
beginning .
"Payment Date Statement": The statement prepared pursuant to
Section 2.08(d) with respect to collection on or in respect of the Mortgage
Loans and other assets of the Trust Estate and payments on or in respect of
the Notes, based upon the information contained in the Servicer Remittance
Report prepared pursuant to the Servicing Agreement and setting forth the
following information with respect to each Payment Date (to the extent the
Servicer has made such information (other than the information described in
clause (ii), (iii), (iv), (v) and (xv) below) available to the Indenture
Trustee):
(i) the amount of such payment to Noteholders allocable to (x) Monthly
Principal (separately setting forth Principal Prepayments) and (y) any
principal payments made pursuant to Section 8.02(c)(vi) hereof;
(ii) the amount of such payment to Noteholders allocable to Note Interest;
(iii) the Note Balance, after giving effect to the payment of Monthly
Principal and any principal payment made pursuant to
Section 8.02(c)(vi) hereof applied to reduce such Note Balance on such
Payment Date;
(iv) the Aggregate Principal Balance of the Mortgage Loans as of the end of
the related Due Period;
(v) the amount of Monthly Advances made with respect to such Payment Date
and the aggregate amount of unreimbursed Monthly Advances and Servicing
Advances, if any;
(vi) the number and aggregate of the Principal Balances of Mortgage Loans
(including the Principal Balances of all Mortgage Loans in foreclosure)
contractually delinquent (i) one month, (ii) two months and (iii) three
or more months, as of the end of the related Collection Period;
(vii) the number and aggregate of the Principal Balances of the Mortgage
Loans in foreclosure or subject to other similar proceedings, and the
number and aggregate of the Principal Balance of Mortgage Loans and in
the aggregate, the Mortgagor of which is known by the Servicer to be in
bankruptcy as of the end of the related Collection Period and the book
value of any real estate acquired through foreclosure, grant of a deed
in lieu of foreclosure or other similar proceedings during the related
Collection Period;
(viii) the aggregate of the Principal Balances of the Mortgage Loans
repurchased by the Seller or purchased by the Servicer, separately
setting forth the aggregate of the Principal Balances of Mortgage Loans
and in the aggregate delinquent for three consecutive monthly
installments purchased by the Servicer at its option pursuant to the
Servicing Agreement;
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(ix) the amount of any Insured Payments for such Payment Date;
(x) the aggregate amount of the Monthly Servicing Fee paid to or retained
by the Servicer for the related Collection Period;
(xi) the Overcollateralization Amount, the then applicable Required
Overcollateralization Amount, the Overcollateralization Surplus, if
any, and the Overcollateralization Deficit, if any, with respect to
such Payment Date;
(xii) the aggregate Principal Balance of the three largest outstanding
Mortgage Loans as of the related Determination Date;
(xiii) the aggregate amount of Realized Losses incurred during the
related Collection Period and the cumulative amount of Realized Losses
since the Cut-off Date;
(xiv) the amount of premium due to the PMI Insurer under the PMI Policy;
(xv) the Delinquency Percentage and the Rolling Loss Percentage (as defined
in the Servicing Agreement) relating to such Payment Date; and
(xvi) the number of Mortgage Loan modifications made by the Servicer during
the Collection Period and the type of modification made with respect to
each such Mortgage Loan.
In the case of information furnished pursuant to subclauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount per Individual
Note.
"Percentage Interest": With respect to a Note, the undivided
percentage interest (carried to eight places rounded down) obtained by
dividing the original principal balance of such Note by the Original Note
Balance and multiplying the result by 100.
"Permitted Investments": One or more of the following obligations,
instruments and securities:
(a) direct general obligations of, or obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation,
Federal National Mortgage Corporation, the Federal Home Loan Banks or
any agency or instrumentality of the United States of America rated
" " or higher by [Rating Agency], the obligations of which are
backed by the full faith and credit of the United States of America;
(b) (i) demand and time deposits in, certificates of deposit of, banker's
acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Indenture Trustee or its
agent acting in their respective commercial capacities) incorporated
under the laws of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution
or trust company or its ultimate parent has a short-term uninsured debt
rating in one of the two highest available rating categories of [Rating
Agency] and of [Rating Agency] and provided that each such investment
has an original maturity of no more than 365 days and (ii) any other
demand or time deposit or deposit which is fully insured by the FDIC;
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(c) repurchase obligations with a term not to exceed 30 days with respect
to any security described in clause (a) above and entered into with a
depository institution or trust company (acting as a principal) rated
" " or higher by [Rating Agency] and rated " " or
higher by [Rating Agency]; provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type
described in clause (a) above and must (i) be valued daily at current
market price plus accrued interest, (ii) pursuant to such valuation, be
equal, at all times, to 105% of the cash transferred by the Indenture
Trustee in exchange for such collateral and (iii) be delivered to the
Indenture Trustee or, if the Indenture Trustee is supplying the
collateral, an agent for the Indenture Trustee, in such a manner as to
accomplish perfection of a security interest in the collateral by
possession of certified securities.
(d) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any state thereof which has a long-term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
(e) commercial paper having an original maturity of less than 365 days and
issued by an institution having a short-term unsecured debt rating in
the highest available rating category of each of the Rating Agencies at
the time of such investment;
(f) a guaranteed investment contract approved by each of the Rating
Agencies and the Note Insurer and issued by an insurance company or
other corporation having a long-term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
(g) money market funds having ratings in the two highest available rating
category of [Rating Agency] and one of the two highest available rating
categories of [Rating Agency] at the time of such investment which
invest only in other Permitted Investments (any such money market funds
which provide for demand withdrawals being conclusively deemed to
satisfy any maturity requirements for Permitted Investments set forth
herein) including money market funds of the Indenture Trustee and any
such funds that are managed by the Indenture Trustee or its affiliates
or which Indenture Trustee or any affiliate acts as advisor as long as
such money market funds satisfy the criteria of this subparagraph (g);
and
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(h) any investment approved in writing by the Note Insurer and written
evidence that any such investment will not result in a downgrading or
withdrawal of the rating by each Rating Agency on the Notes.
The Indenture Trustee may purchase from or sell to itself or an
affiliate, as principal or agent, the Permitted Investments listed above.
All Permitted Investments in a trust account under the Indenture shall be
made in the name of the Indenture Trustee for the benefit of the Noteholders
and the Note Insurer.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association joint-stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"PMI Insurer": , a monoline private insurance company
organized and created under the laws of the State of , or its
successors in interest.
"PMI Mortgage Loans": The list of Mortgage Loans insured by the PMI
Insurer attached hereto as Exhibit D.
"PMI Policy": The Primary Mortgage Insurance Policy (No. )
with respect to the PMI Mortgage Loans and all endorsements thereto dated the
Closing Date, issued by the PMI Insurer.
"Predecessor Notes": With respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the lost,
destroyed or stolen Note.
"Preference Claim": As defined in Section 8.03(g) of this Indenture.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan as
to which a prepayment in whole or in part was received by the Servicer from
the related Mortgagor during a Collection Period, an amount equal to the
difference between (1) 30 days' interest at the Mortgage Interest Rate on the
Principal Balance of such Mortgage Loan (immediately prior to such
prepayment) and (2) the amount of interest actually collected by the Servicer
on such Mortgage Loan during the related Due Period.
"Prepayment Premium": With respect to any Collection Period, any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with any Principal Prepayment on a Mortgage Loan pursuant to the terms of the
related Mortgage Note.
"Principal Balance": As to any Mortgage Loan and any Determination
Date, the actual outstanding principal amount thereof as of the close of
business on the Determination Date in the preceding month (or, in the case of
the first Payment Date, as of the Cut-off Date) less (i) all scheduled
payments of principal received or advanced (or to be advanced on the related
Deposit Date) with respect to the Mortgage Loan and due during the related
Due Period and all other amounts collected, received or otherwise recovered
in respect of principal on the Mortgage Loan (including Principal
Prepayments, but not including Payments Ahead that are not allocable to
principal for the related Due Period) during or in respect of the related
Collection Period, Net Liquidation Proceeds and Trust Insurance Proceeds
allocable to principal recovered or collected in respect of such Mortgage
Loan during the related Collection Period, (ii) the portion of the Purchase
Price allocable to principal to be remitted by the Seller or the Servicer to
the Indenture Trustee on or prior to the related Deposit Date in connection
with a repurchase of such Mortgage Loan pursuant to the Mortgage Loan Sale
Agreement, the Servicing Agreement or Section 8.05 hereof, to the extent such
amount is actually remitted on or prior to such Deposit Date, and (iii) the
amount to be remitted by the Seller to the Indenture Trustee on the related
Deposit Date in connection with a substitution of a Qualified Replacement
Mortgage Loan for such Mortgage Loan pursuant to the Mortgage Loan Sale
Agreement and Section 8.05 hereof, to the extent such amount is actually
remitted on or prior to such Deposit Date; provided, however, that Mortgage
Loans that have become Liquidated Mortgage Loans since the end of the
preceding Determination Date (or, in the case of the first Determination
Date, since the Cut-off Date) will be deemed to have a Principal Balance of
zero on the current Determination Date.
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"Principal Prepayment": As to any Mortgage Loan and Collection Period,
any payment by a Mortgagor or other recovery in respect of principal on a
Mortgage Loan (including Net Liquidation Proceeds and Trust Insurance
Proceeds) that, in the case of a payment by a Mortgagor, is received in
advance of its scheduled due date and is not a Payment Ahead.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Price": With respect to any Defective Mortgage Loan, an
amount equal to (i) the sum of (A) the Principal Balance of such Defective
Mortgage Loan as of the beginning of the Due Period next preceding the
Deposit Date on which such repurchase or purchase is required to occur, (B)
interest computed at the applicable Mortgage Interest Rate on such Principal
Balance from the date to which interest was last paid by the Mortgagor to the
last day of the Due Period immediately preceding the Deposit Date on which
such repurchase occurs and (C) any previously unreimbursed Monthly Advances
with respect to principal and Servicing Advances made on or in respect of
such Defective Mortgage Loan, less (ii) any payments of principal and
interest in respect of such Defective Mortgage Loan made by or on behalf of
the related Mortgagor during such Due Period. With respect to any Qualified
Replacement Mortgage Loan, the amount remitted by the Seller to the Indenture
Trustee on or prior to the Deposit Date relating to a Payment Date in
connection with a substitution of such Qualified Replacement Mortgage Loan
for a Mortgage Loan pursuant to the Mortgage Loan Sale Agreement or
Section 8.05 hereof.
"Qualified Replacement Mortgage Loan": A Mortgage Loan that is
substituted for a Deleted Mortgage Loan pursuant to Section 8.05 that must,
at the end of the Due Period preceding the date of such substitution,
(i) have an outstanding principal balance (when taken together with any other
Qualified Replacement Mortgage Loan being substituted for such Deleted
Mortgage Loan), not in excess of and not substantially less than the unpaid
principal balance of the Deleted Mortgage Loan at the end of the Due Period
preceding the date of substitution, (ii) be of the same type of Mortgage
Interest Rate (i.e. fixed or adjustable) and have the Mortgage Interest Rate
not less than the Mortgage Interest Rate on the Deleted Mortgage Loan, and,
with respect to Mortgage Loans which have an adjustable Mortgage Rate, have
maximum rates, minimum rates, margin indices, gross margins, and caps no more
than 1% greater than or less than those of the Deleted Mortgage Loan,
(iii) have a remaining term to maturity not greater than (and not more than
one year less than) that of the Deleted Mortgage Loan, (iv) have a
Loan-to-Value Ratio or Combined Loan-to-Value Ratio equal to or lower than
the Loan-to-Value Ratio or Combined Loan-to-Value Ratio of the Deleted
Mortgage Loan, (v) have the same or better lien priority as the Deleted
Mortgage Loan, (vi) comply as of the date of substitution with each
representation and warranty set forth in Section 4(b) and Exhibit B of the
Mortgage Loan Sale Agreement, (vii) have the same or better property type as
the Deleted Mortgage Loan, (viii) have the same or better occupancy status
and (ix) be otherwise acceptable to the Note Insurer. In the event that one
or more mortgage loans are proposed to be substituted for one or more Deleted
Mortgage Loans, the foregoing tests may be met on a weighted average basis or
other aggregate basis acceptable to the Note Insurer, except that the
requirements of clauses (v), (vi), (vii) and (viii) hereof must be satisfied
as to each Qualified Replacement Mortgage Loan.
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"Rating Agencies": [Rating Agency] and [Rating Agency] (each, a
"Rating Agency"). If any such agency or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
credit rating agency, or other comparable Person, designated by the Servicer,
notice of which designation shall be given to the Indenture Trustee.
"Realized Loss": As defined in the Servicing Agreement.
"Record Date": With respect to any Payment Date, the date on which the
Persons entitled to receive any payment of principal of or interest on any
Notes (or notice of a payment in full of principal) due and payable on such
Payment Date are determined; such date shall be the last Business Day
preceding such Payment Date or, with respect to Definitive Notes, the last
Business Day of the month preceding the month of such Payment Date. With
respect to a vote of Noteholders required or allowed hereunder, the Record
Date shall be the later of (i) 30 days prior to the first solicitation of
consents or (ii) the date of the most recent list of Noteholders furnished to
the Indenture Trustee pursuant to Section 7.01(a) prior to such solicitation.
"Redemption Date": With respect to the Notes, the Payment Date, if
any, on which the Notes are redeemed pursuant to Article X hereof which date
may occur on or after the Initial Redemption Date.
"Redemption Price": With respect to any Note to be redeemed in whole
or in part, an amount equal to 100% of the Current Note Balance of the Note
to be so redeemed, together with accrued and unpaid interest on such amount
at the Note Interest Rate.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
"Relief Act Interest Shortfall": With respect to any Payment Date, for
any Mortgage Loan to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended Due Period as a
result of the application of the Relief Act, the amount by which (i) interest
collectible on such Mortgage Loan during such Due Period is less than (ii) 30
days' at the Mortgage Interest Rate on the Principal Balance of such Mortgage
Loan before giving effect to the application of the Relief Act.
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"Remittable Funds": As defined in the Servicing Agreement.
"REO Property": As defined in the Servicing Agreement.
"Representative": .
"Required Overcollateralization Amount": Means with respect to the
Notes:
(a) for any Payment Date on which the Step Down Trigger is not occurring,
the greater of: (i) % of the Aggregate Principal Balance of
the Mortgage Loans as of the Cut-off Date and (ii) either (A) if the
Step Up Rolling Delinquency Test is met on such Payment Date but
neither the Step Up Rolling Loss Test nor the Step Up Cumulative Loss
Test is met on such Payment Date, % of the Delinquency Amount for
such Payment Date or (B) if either the Step Up Rolling Loss Test or the
Step Up Cumulative Loss Test is met on such Payment Date, % of the
Delinquency Amount for such Payment Date.
(b) for any Payment Date on which the Step Down Trigger is occurring the
greatest of (i) the lesser of (A) % of the Aggregate Principal
Balance of the Mortgage Loans as of the Cut-off Date and (B) the
Stepped Down Required Overcollateralized Percentage of the Aggregate
Principal Balance of the Mortgage Loans as of the Determination Date
relating to such Payment Date, (ii) either (A) if the Step Up Rolling
Delinquency Test is met as such Payment Date but neither the Step Up
Rolling Loss Test nor the Step Up Cumulative Loss Test is met on such
Payment Date, % of the Delinquency Amount for such Payment Date or
(B) if either the Step Up Rolling Loss Test or the Step Up Cumulative
Loss Test is met on such Payment Date, % of the Delinquency Amount
for such Payment Date, (iii) % of the Aggregate Principal Balance of
the Mortgage Loans as of the Cut-Off Date and (iv) three times the
Principal Balance of the largest Mortgage Loan then outstanding.
(c) provided, however, for any Payment Date on which the Step Up Claims
Denial Test is met, the Required Overcollateralization Amount
determined pursuant to clause (a) or (b) above, as applicable, shall be
increased by an amount equal to the product of % and the Aggregate
Principal Balance of the Mortgage Loans as of the Cut-Off Date.
The Note Insurer may, in its sole discretion, at the request of the
holders of 50% or more of the ownership interests of the Issuer, modify
clause (a), (b) or (c) above.
"Required Payment Amount": With respect to the Notes and any Payment
Date, the Note Interest (net of any Relief Act Interest Shortfalls and
Prepayment Interest Shortfalls) for such Payment Date plus the amount of any
Overcollateralization Deficit for such Payment Date.
"Responsible Officer": With respect to the Indenture Trustee, the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, the cashier,
any trust officer or assistant trust officer, the controller, any assistant
controller or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
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"Rolling Delinquency Percentage": As defined in the Servicing
Agreement.
"Rolling Loss Percentage": As defined in the Servicing Agreement.
"Sale": The meaning specified in Section 5.17.
"Seller": .
"Servicer": With respect to any Mortgage Loan, , a
corporation, as Servicer under the Servicing Agreement, and its permitted
successors and assigns thereunder, including any successor servicers
appointed pursuant to Section 6.02 of the Servicing Agreement.
"Servicer Remittance Report": As defined in the Servicing Agreement.
"Servicing Advance": As defined in the Servicing Agreement.
"Servicing Agreement": The Servicing Agreement, dated as of ,
among the Issuer, the Servicer and the Indenture Trustee, as indenture
trustee, providing, among other things, for the servicing of the Mortgage
Loans, as such agreement may be amended or supplemented from time to time as
permitted hereby and thereby. Such term shall also include any servicing
agreement entered into with a successor servicer.
"Servicing Fee Rate": % per annum.
["S&P": Standard & Poor's Rating Services, a Division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest.]
"Step Down Cumulative Loss Test": The Step Down Cumulative Loss Test
will be met with respect to a Payment Date as follows: (i) for the
through the Payment Dates, if the Cumulative Loss Percentage for such
Payment Date is % or less; (ii) for the through the Payment Dates,
if the Cumulative Loss Percentage for such Payment Date is % or less;
(iii) for the through the Payment Dates, if the Cumulative Loss
Percentage for such Payment Date is % or less; and (iv) for any Payment
Date after the Payment Date, if the Cumulative Loss Percentage for such
Payment Date is % or less.
"Step Down Rolling Delinquency Test": The Step Down Rolling
Delinquency Test will be met with respect to a Payment Date if the Rolling
Delinquency Percentage for such Payment Date is % or less.
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"Step Down Rolling Loss Test": The Step Down Rolling Loss Test will be
met with respect to a Payment Date if the Rolling Loss Percentage is less
than %.
"Step Down Trigger": For any Payment Date after the Payment Date,
the Step Down Trigger will have occurred if each of the Step Down Cumulative
Loss Test, the Step Down Rolling Delinquency Test and the Step Down Rolling
Loss Test is met. In no event will the Step Down Trigger be deemed to have
occurred for the Payment Date or any preceding Payment Date.
"Stepped Down Required Overcollateralized Percentage": For any Payment
Date for which the Step Down Trigger has occurred, a percentage equal to the
greater of (x) % and (y) (i) the percentage equivalent of a fraction, the
numerator of which is the Overcolleralization Amount as of the immediately
preceding Payment Date and the denominator of which is the Aggregate
Principal Balance of the Mortgage Loans and REO Properties as of such Payment
Date, minus (ii) the percentage equivalent of a fraction, the numerator of
which is the product of (A) the percentage calculated under clause (i) above
minus % multiplied by (B) the number of consecutive Payment Dates through
and including the Payment Date for which the Stepped Down Required
Overcollateralized Percentage is being calculated, up to a maximum of six,
for which the Step Down Trigger has occurred, and the denominator of which is
six.
"Step Up Claims Denial Test": The Step Up Claims Denial Test will be
met if either of the following events occurs (i) the PMI Insurer is
downgraded below " " by [Rating Agency] or [Rating Agency], or (ii) the
cumulative claims denials for any 12-months preceding a Payment Date exceed
% of the Aggregate Principal Balance of the Mortgage Loans covered by the
PMI Policy at the beginning of such 12-month period.
"Step Up Cumulative Loss Test": The Step Up Cumulative Loss Test will
be met with respect to a Payment Date as follows: (i) for the through the
Payment Dates, if the Cumulative Loss Percentage for such Payment Date
is more than %; (ii) for the through the Payment Dates, if the
Cumulative Loss Percentage for such Payment Date is more than %;
(iii) for the through the Payment Dates, if the Cumulative Loss
Percentage for such Payment Date is more than %; (iv) for the
through the Payment Dates, if the Cumulative Loss Percentage for such
Payment Date is more than %; and (v) for the Payment Date and any
Payment Date thereafter, if the Cumulative Loss Percentage for such Payment
Date is more than %.
"Step Up Rolling Delinquency Test": The Step Up Rolling Delinquency
Test will be met with respect to a Payment Date if the Rolling Delinquency
Percentage for such Payment Date is more than %.
"Step Up Rolling Loss Test": The Step Up Rolling Loss Test will be met
with respect to a Payment Date, if the Rolling Loss Percentage is equal to or
more than %.
"Transition Expenses": As defined in the Servicing Agreement.
"Trust Agreement": That certain Deposit Trust Agreement, dated as of
200 , among the Depositor, the Owner Trustee,
and the Servicer.
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"Trust Estate": All money, instruments and other property subject or
intended to be subject to the lien of this Indenture for the benefit of the
Noteholders and the Note Insurer as of any particular time (including,
without limitation, all property and interests Granted to the Indenture
Trustee, including all proceeds thereof).
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939, as it
may be amended from time to time.
"Trust Insurance Proceeds": As defined in the Servicing Agreement.
"Trust Paying Agent": The entity appointed to act as paying agent
pursuant to the Trust Agreement with respect to amounts on deposit from time
to time in the Certificate Distribution Account and distributions thereof to
Certificateholders. The initial Trust Paying Agent is
.
"U.S. Bankruptcy Code" shall mean the United States Bankruptcy Code, 11
U.S.C. Sections 101, et seq., as amended or supplemented from time to time.
"Vice President": Any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
ARTICLE II
THE NOTES
Section 2.01. Forms Generally.
The Notes shall be in substantially the form set forth on Exhibit A
attached hereto. Each Note may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which the
Notes may be listed, or as may, consistently herewith, be determined by the
Issuer, as evidenced by its execution thereof. Any portion of the text of
any Note may be set forth on the reverse thereof with an appropriate
reference on the face of the Note.
The Definitive Notes may be produced in any manner determined by the
Issuer, as evidenced by its execution thereof.
Section 2.02. Forms of Certificate of Authentication.
The form of the Authenticating Agent's certificate of authentication is
as follows:
This is one of the Notes referred to in the within-mentioned Indenture.
[Authentication Agent], as Authenticating Agent
By:____________________________________________
Authorized Signatory
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Section 2.03. General Provisions With Respect to Principal and Interest
Payment.
The Notes shall be designated generally as the "Mortgage Backed Notes,
Series 200 - " of the Issuer.
The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is limited to $ , except for
the Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 2.06, 2.07, or
9.06 of this Indenture. The Notes shall consist of one class designated as
Class , having a Note Interest Rate and Final Maturity Date as
follows:
Designation Original Note Note Interest Rate Final Maturity Date
Balance
%
The Notes shall be issued in the form specified in Section 2.01.
Subject to the provisions of Section 3.01, Section 5.07, Section 5.09
and Section 8.02(d), the principal of the Notes shall be payable in
installments ending no later than the Final Maturity Date unless the unpaid
principal of such Notes become due and payable at an earlier date by
declaration of acceleration or call for redemption or otherwise.
All payments made with respect to any Note shall be applied first to
the interest then due and payable on such Note and then to the principal
thereof. All computations of interest accrued on any Note shall be made on
the basis of a year of 360 days and twelve 30-day months.
Interest on the Notes shall accrue at the Note Interest Rate during
each Interest Period on the Current Note Balance of each Outstanding Note at
the end of such Interest Period. Interest accrued during an Interest Period
shall be payable on the next following Payment Date.
All payments of principal of and interest on any Note shall be made in
the manner specified in Section 2.
Notwithstanding any of the foregoing provisions with respect to
payments of principal of and interest on the Notes, if the Notes have become
or been declared due and payable following an Event of Default and such
acceleration of maturity and its consequences have not been rescinded and
annulled, then payments of principal of and interest on the Notes shall be
made in accordance with Section 5.07.
Section 2.04. Denominations.
The Notes shall be issuable only as registered Notes in the minimum
denomination of $ and integral multiples of $ in excess
thereof, with the exception of one Note which may be issued in a lesser
amount.
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Section 2.05. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Issuer by an Authorized
Officer of the Owner Trustee. The signature of such Authorized Officer of
the Owner Trustee on the Notes may be manual or by facsimile.
Notes bearing the manual or facsimile signature of an individual who
was at any time an Authorized Officer of the Owner Trustee shall bind the
Issuer, notwithstanding that such individual has ceased to be an Authorized
Officer of the Owner Trustee prior to the authentication and delivery of such
Notes or was not an Authorized Officer of the Owner Trustee at the date of
such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Notes executed on behalf of the Issuer
to the Authenticating Agent for authentication; and the Authenticating Agent
shall authenticate and deliver such Notes as in this Indenture provided and
not otherwise.
Each Note authenticated on the Closing Date shall be dated the Closing
Date. All other Notes that are authenticated after the Closing Date for any
other purpose hereunder shall be dated the date of their authentication.
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 Authenticating Agent by the manual signature of one of its
authorized officers or employees, 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 2.06. Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers
of Notes. The Indenture Trustee is hereby initially appointed "Note
Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided. The Indenture Trustee shall remain the Note Registrar
throughout the term hereof. Upon any resignation of the Indenture Trustee,
the Issuer shall promptly appoint a successor, with the approval of the Note
Insurer, or, in the absence of such appointment, the Issuer shall assume the
duties of Note Registrar.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.02, the
Owner Trustee on behalf of the Issuer, shall execute, and the Authenticating
Agent shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
any authorized denominations, and of a like aggregate initial principal
amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, the Owner
Trustee shall execute, and the Authenticating Agent shall authenticate and
deliver, the Notes that the Noteholder making the exchange is entitled to
receive.
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All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, 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, or be accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by the
Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer and the Note Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge as may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.07 not involving any transfer or
any exchange made by the Note Insurer.
The Note Registrar shall not register the transfer of a Note unless the
Note Registrar has received a representation letter from the transferee to
the effect that either (i) the transferee is not, and is not acquiring the
Note on behalf of or with the assets of, an employee benefit plan or other
retirement plan or arrangement that is subject to Title I of the Employee
Retirement Income Security Act or 1974, as amended, or Section 4975 of the
Code or (ii) the acquisition and holding of the Note by the transferee
qualifies for exemptive relief under a Department of Labor Prohibited
Transaction Class Exemption. Each Beneficial Owner of a Book-Entry Note
shall be deemed to make one of the foregoing representations.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes.
If (1) any mutilated Note is surrendered to the Note Registrar or the
Note Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Note, and (2) there is delivered to the Note Registrar such
security or indemnity as may be required by the Note Registrar to save each
of the Issuer, the Note Insurer and the Note Registrar harmless, then, in the
absence of notice to the Issuer or the Note Registrar that such Note has been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Issuer
shall execute and upon its request the Note Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a new Note or Notes of the same tenor and aggregate initial
principal amount bearing a number not contemporaneously outstanding. If,
after the delivery of such new Note, a bona fide purchaser of the original
Note in lieu of which such new Note was issued presents for payment such
original Note, the Issuer and the Note Registrar shall be entitled to recover
such new Note from the person to whom it was delivered or any person taking
therefrom, 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 expenses incurred by the Issuer or the Note Registrar in
connection therewith. If any such mutilated, destroyed, lost or stolen Note
shall have become or shall be about to become due and payable, or shall have
become subject to redemption in full, instead of issuing a new Note, the
Issuer may pay such Note without surrender thereof, except that any mutilated
Note shall be surrendered.
-29-
Upon the issuance of any new Note under this Section, the Issuer or the
Note Registrar may require the payment 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 or the Note Registrar) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the 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 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 2.08. Payments of Principal and Interest.
(a) Payments on Notes issued as Book-Entry Notes will be made by or on
behalf of the Indenture Trustee to the Clearing Agency or its nominee. Any
installment of interest or principal payable on any Definitive Notes that is
punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered at the close of business on the Record Date
for such Payment Date by either (i) check mailed to such Person's address as
it appears in the Note Register on such Record Date, or (ii) by wire transfer
of immediately available funds to the account of a Noteholder, if such
Noteholder (A) is the registered holder of Definitive Notes having an initial
principal amount of at least $1,000,000 and (B) has provided the Indenture
Trustee with wiring instructions in writing by five Business Days prior to
the related Record Date or has provided the Indenture Trustee with such
instructions for any previous Payment Date, except for the final installment
of principal payable with respect to such Note (or the Redemption Price for
any Note called for redemption, if such redemption will result in payment of
the then entire unpaid principal amount of such Note), which shall be payable
as provided in subsection (b) below of this Section 2.08. A fee may be
charged by the Indenture Trustee to a Noteholder of Definitive Notes for any
payment made by wire transfer. Any installment of interest or principal not
punctually paid or duly provided for shall be payable as soon as funds are
available to the Indenture Trustee for payment thereof, or if Section 5.07
applies, pursuant to Section 5.07.
(b) All reductions in the principal amount of a Note (or one or more
Predecessor Notes) effected by payments of installments of principal made on
any Payment Date shall be binding upon all Holders of such Note and of any
Note issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof, whether or not such payment is noted on such Note. The
final installment of principal of each Note (including the Redemption Price
of any Note called for optional redemption, if such optional redemption will
result in payment of the entire unpaid principal amount of such Note) shall
be payable only upon presentation and surrender thereof on or after the
Payment Date therefor at the Indenture Trustee's presenting office located
within the United States of America pursuant to Section 3.02.
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Whenever the Indenture Trustee expects that the entire remaining unpaid
principal amount of any Note will become due and payable on the next Payment
Date other than pursuant to a redemption pursuant to Article X, it shall, no
later than two days prior to such Payment Date, telecopy or hand deliver to
each Person in whose name a Note to be so retired is registered at the close
of business on such otherwise applicable Record Date a notice to the effect
that:
(i) the Indenture Trustee expects that funds sufficient to pay such final
installment will be available in the Note Account on such Payment Date;
and
(ii) if such funds are available, (A) such final installment will be payable
on such Payment Date, but only upon presentation and surrender of such
Note at the office or agency of the Note Registrar maintained for such
purpose pursuant to Section 3.02 (the address of which shall be set
forth in such notice) and (B) no interest shall accrue on such Note
after such Payment Date.
A copy of such form of notice shall be sent to the Note Insurer by the
Indenture Trustee.
Notices in connection with redemptions of Notes shall be mailed to
Noteholders in accordance with Section 10.02.
(c) Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to unpaid
principal and interest that were carried by such other Note. Any checks
mailed pursuant to subsection (a) of this Section 2.08 and returned
undelivered shall be held in accordance with Section 3.03.
(d) Each Payment Date Statement, prepared by the Indenture Trustee based on
the Servicer Remittance Report delivered to the Indenture Trustee pursuant to
the Servicing Agreement, shall be made available via the Indenture Trustee's
internet website and its fax-on-demand service to the Note Insurer, the
Rating Agencies, the Owner Trustee, the Underwriters (as defined in the
Insurance Agreement) and each Noteholder as the statement required pursuant
to Section 8.06. Noteholders that are unable to use the above distribution
options are entitled to have a paper copy mailed to them via first class mail
by calling the customer service desk at and indicating
such. Neither the Indenture Trustee nor the Paying Agent shall have any
responsibility to recalculate, verify or recompute information contained in
any such tape, electronic data file or disk or any such Servicer Remittance
Report except to the extent necessary to satisfy all obligations under this
Section 2.08(d) and under Article III of the Servicing Agreement.
Within 90 days after the end of each calendar year, the Indenture
Trustee will be required to furnish to each person who at any time during the
calendar year was a Noteholder, if requested in writing by such person, a
statement containing the information set forth in subclauses (i) and (ii) in
the definition of "Payment Date Statement," aggregated for such calendar year
or the applicable portion thereof during which such person was a Noteholder.
Such obligation will be deemed to have been satisfied to the extent that
substantially comparable information is provided pursuant to any requirements
of the Code as are from time to time in force.
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Section 2.09. Persons Deemed Owner.
Prior to due presentment for registration of transfer of any Note, the
Issuer, the Indenture Trustee, any Paying Agent and any other agent of the
Issuer, the Note Insurer or the Indenture Trustee may treat the Person in
whose name any Note is registered as the owner of such Note (a) on the
applicable Record Date for the purpose of receiving payments of the principal
of and interest on such Note and (b) on any other date for all other purposes
whatsoever, and neither the Issuer, the Indenture Trustee, any Paying Agent
nor any other agent of the Issuer, the Note Insurer or the Indenture Trustee
shall be affected by notice to the contrary.
Section 2.10. Cancellation.
All Notes surrendered for payment, registration of transfer, exchange
or redemption shall, if surrendered to any Person other than the Note
Registrar, be delivered to the Note Registrar and shall be promptly canceled
by it. The Issuer may at any time deliver to the Note Registrar for
cancellation any Note previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Note Registrar. No Notes shall
be authenticated in lieu of or in exchange for any Notes canceled as provided
in this Section, except as expressly permitted by this Indenture. All
canceled Notes held by the Note Registrar shall be held by the Note Registrar
in accordance with its standard retention policy, unless the Issuer shall
direct by an Issuer Order that they be destroyed or returned to it.
Section 2.11. Authentication and Delivery of Notes.
The Notes shall be executed by an Authorized Officer of the Owner
Trustee on behalf of the Issuer and delivered to the Authenticating Agent for
authentication, and thereupon the same shall be authenticated and delivered
by the Authenticating Agent, upon Issuer Request and upon receipt by the
Authenticating Agent of all of the following:
(a) An Issuer Order authorizing the execution, authentication and delivery
of the Notes and specifying the Final Maturity Date, the principal amount and
the Note Interest Rate (or the manner in which such Note Interest Rate is to
be determined) of such Notes to be authenticated and delivered.
(b) An Issuer Order authorizing the execution and delivery of this
Indenture.
(c) One or more Opinions of Counsel addressed to the Authenticating Agent
and the Note Insurer or upon which the Authenticating Agent and the Note
Insurer is expressly permitted to rely, complying with the requirements of
Section 11.01, reasonably satisfactory in form and substance to the
Authenticating Agent and the Note Insurer.
In rendering the opinions set forth above, such counsel may rely upon
officer's certificates of the Issuer, the Owner Trustee, the Servicer and the
Indenture Trustee, without independent confirmation or verification with
respect to factual matters relevant to such opinions. In rendering the
opinions set forth above, such counsel need express no opinion as to (A) the
existence of, or the priority of the security interest created by the
Indenture against, any liens or other interests that arise by operation of
law and that do not require any filing or similar action in order to take
priority over a perfected security interest or (B) the priority of the
security interest created by this Indenture with respect to any claim or lien
in favor of the United States or any agency or instrumentality thereof
(including federal tax liens and liens arising under Title IV of the Employee
Retirement Income Security Act of 1974).
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The acceptability to the Note Insurer of the Opinion of Counsel
delivered to the Indenture Trustee and the Note Insurer at the Closing Date
shall be conclusively evidenced by the delivery on the Closing Date of the
Insurance Policy.
(d) Pursuant to the authorization of the Depositor, an Officers'
Certificate of the Issuer complying with the requirements of Section 11.01
and stating that:
(i) the Issuer is not in Default under this Indenture and the issuance of
the Notes will not result in any breach of any of the terms, conditions
or provisions of, or constitute a default under, the Issuer's
Certificate of Trust or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Issuer is a party or by which it
is bound, or any order of any court or administrative agency entered in
any proceeding to which the Issuer is a party or by which it may be
bound or to which it may be subject, and that all conditions precedent
provided in this Indenture relating to the authentication and delivery
of the Notes have been complied with;
(ii) the Issuer is the owner of each Mortgage Loan, free and clear of any
lien, security interest or charge, has not assigned any interest or
participation in any such Mortgage Loan (or, if any such interest or
participation has been assigned, it has been released) and has the
right to Grant each such Mortgage Loan to the Indenture Trustee;
(iii) the information set forth in the Mortgage Loan Schedule attached as
Schedule I to this Indenture is correct;
(iv) the Issuer has Granted to the Indenture Trustee all of its right, title
and interest in each Mortgage Loan;
(v) as of the Closing Date, no lien in favor of the United States described
in Section 6321 of the Code, or lien in favor of the Pension Benefit
Guaranty Corporation described in Section 4068(a) of the Employee
Retirement Income Security Act of 1974, as amended, has been filed as
described in subsections 6323(f) and 6323(g) of the Code upon any
property belonging to the Issuer; and
(vi) attached thereto is a true and correct copy of letters signed by each
Rating Agency confirming that the Notes have been rated in the highest
rating category of such Rating Agency.
(e) An executed counterpart of the Servicing Agreement.
(f) An executed counterpart of the Mortgage Loan Sale Agreement.
(g) An executed counterpart of the Mortgage Loan Contribution Agreement.
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(h) An executed counterpart of the Trust Agreement.
Section 2.12. Book-Entry Note.
The Notes will be issued initially as one or more certificates in the
name of the Cede & Co., as nominee for the Clearing Agency maintaining
book-entry records with respect to ownership and transfer of such Notes, and
held by the Clearing Agency or, pursuant to the Clearing Agency's
instructions on behalf of the Clearing Agency, deposited with the Indenture
Trustee, and registration of the Notes may not be transferred by the Note
Registrar except upon Book-Entry Termination. In such case, the Note
Registrar shall deal with the Clearing Agency as representatives of the
Beneficial Owners of such Notes for purposes of exercising the rights of
Noteholders hereunder. Each payment of principal of and interest on a
Book-Entry Note shall be paid to the Clearing Agency, which shall credit the
amount of such payments to the accounts of its Clearing Agency Participants
in accordance with its normal procedures. Each Clearing Agency Participant
shall be responsible for disbursing such payments to the Beneficial Owners of
the Book-Entry Notes that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for
which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Beneficial Owners of the Book-Entry Notes that it
represents. All such credits and disbursements are to be made by the
Clearing Agency and the Clearing Agency Participants in accordance with the
provisions of the Notes. None of the Indenture Trustee, the Note Registrar,
if any, the Issuer, or any Paying Agent or the Note Insurer shall have any
responsibility therefor except as otherwise provided by applicable law.
Requests and directions from, and votes of, such representatives shall not be
deemed to be inconsistent if they are made with respect to different
Beneficial Owners.
Section 2.13. Termination of Book Entry System.
(a) The book-entry system through the Clearing Agency with respect to the
Book-Entry Notes may be terminated upon the happening of any of the following:
(i) The Clearing Agency advises the Indenture Trustee that the Clearing
Agency is no longer willing or able to discharge properly its
responsibilities as nominee and depositary with respect to the Notes
and the Indenture Trustee is unable to locate a qualified successor
clearing agency satisfactory to the Issuer;
(ii) The Issuer, in its sole discretion, elects to terminate the book-entry
system by notice to the Clearing Agency and the Indenture Trustee; or
(iii) After the occurrence of an Event of Default (at which time the
Indenture Trustee shall use all reasonable efforts to promptly notify
each Beneficial Owner through the Clearing Agency of such Event of
Default), the Beneficial Owners of no less than 51% of the Note Balance
of the Book-Entry Notes advise the Indenture Trustee in writing,
through the related Clearing Agency Participants and the Clearing
Agency, that the continuation of a book-entry system through the
Clearing Agency to the exclusion of any Definitive Notes being issued
to any person other than the Clearing Agency or its nominee is no
longer in the best interests of the Beneficial Owners.
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(b) Upon the occurrence of any event described in subsection (a) above, the
Indenture Trustee shall use all reasonable efforts to notify all Beneficial
Owners, through the Clearing Agency, of the occurrence of such event and of
the availability of Definitive Notes to Beneficial Owners requesting the
same, in an aggregate Current Note Balance representing the interest of each,
making such adjustments and allowances as it may find necessary or
appropriate as to accrued interest and previous calls for redemption.
Definitive Notes shall be issued only upon surrender to the Indenture Trustee
of the global Note by the Clearing Agency, accompanied by registration
instructions for the Definitive Notes. Neither the Issuer nor 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 issuance of the Definitive Notes, all references herein
to obligations imposed upon or to be performed by the Clearing Agency shall
cease to be applicable and the provisions relating to Definitive Notes shall
be applicable.
ARTICLE III
COVENANTS
Section 3.01. Payment of Notes.
The Issuer will pay or 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. The Notes shall be non-recourse obligations of the
Issuer and shall be limited in right of payment to amounts available from the
Trust Estate as provided in this Indenture and the Issuer shall not otherwise
be liable for payments on the Notes. No person shall be personally liable
for any amounts payable under the Notes. If any other provision of this
Indenture conflicts or is 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 Issuer will cause the Note Registrar to maintain its corporate
trust office at a location where Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served.
The Issuer may also from time to time at its own expense designate one
or more other offices or agencies within the United States of America where
the Notes may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, any
designation of an office or agency for payment of Notes shall be subject to
Section 3.03. The Issuer will give prompt written notice to the Indenture
Trustee and the Note Insurer of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 3.03. Money for Note Payments to Be Held In Trust.
All payments of amounts due and payable with respect to any Notes that
are to be made from amounts withdrawn from the Note Account pursuant to
Section 8.02(c) or Section 5.07 shall be made on behalf of the Issuer by the
Paying Agent, and no amounts so withdrawn from the Note Account for payments
of Notes shall be paid over to the Issuer under any circumstances except as
provided in this Section 3.03 or in Section 5.07 or Section 8.02.
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With respect to Definitive Notes, if the Issuer shall have a Paying
Agent that is not also the Note Registrar, such Note Registrar shall furnish,
no later than the fifth calendar day after each Record Date, a list, in such
form as such Paying Agent may reasonably require, of the names and addresses
of the Holders of Notes and of the number of Individual Notes held by each
such Holder.
Whenever the Issuer shall have a Paying Agent other than the Indenture
Trustee, it will, on or before the Business Day next preceding each Payment
Date direct the Indenture Trustee to deposit with such Paying Agent an
aggregate sum sufficient to pay the amounts then becoming due (to the extent
funds are then available for such purpose in the Note Account), such sum to
be held in trust for the benefit of the Persons entitled thereto. Any moneys
deposited with a Paying Agent in excess of an amount sufficient to pay the
amounts then becoming due on the Notes with respect to which such deposit was
made shall, upon Issuer Order, be paid over by such Paying Agent to the
Indenture Trustee for application in accordance with Article VIII.
Subject to the prior consent of the Note Insurer, any Paying Agent
other than the Indenture Trustee may be appointed by Issuer Order and at the
expense of the Issuer. The Issuer shall not appoint any Paying Agent (other
than the Indenture Trustee) that is not, at the time of such appointment, a
depository institution or trust company whose obligations would be Permitted
Investments pursuant to clause (c) of the definition of the term Permitted
Investments. The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section, that such Paying Agent will:
(1) allocate all sums received for payment to the Holders of Notes on each
Payment Date among such Holders in the proportion specified in the
applicable Payment Date Statement, in each case to the extent permitted
by applicable law;
(2) 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;
(3) if such Paying Agent is not the Indenture Trustee, immediately resign
as a Paying Agent and forthwith pay to the Indenture Trustee all sums
held by it in trust for the payment of the Notes if at any time the
Paying Agent ceases to meet the standards set forth above required to
be met by a Paying Agent at the time of its appointment;
(4) if such Paying Agent is not the Indenture Trustee, give the Indenture
Trustee notice of any Default by the Issuer (or any other obligor upon
the Notes) in the making of any payment required to be made with
respect to any Notes for which it is acting as Paying Agent;
(5) if such Paying Agent is not the Indenture Trustee, 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; and
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(6) comply with all requirements of the Code, and all regulations
thereunder, with respect to 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 withholding and
reporting requirements applicable to original issue discount (if any)
on any of the Notes, the Issuer has provided the calculations
pertaining thereto to the Indenture Trustee and the Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or any other purpose, by Issuer
Order direct any Paying Agent, if other than the Indenture Trustee, 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
such 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.
Any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two and one-half years after such amount has become due and
payable to the Holder of such Note (or if earlier, three months before the
date on which such amount would escheat to a governmental entity under
applicable law) shall be discharged from such trust and paid to the Issuer;
and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the extent
of the amounts so paid to the Issuer), and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease. The Indenture Trustee may adopt and employ, at the expense of the
Issuer, any 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 any Agent, at the last address of
record for each such Holder).
Section 3.04. Existence of Issuer.
(a) Subject to Sections 3.04(b) and (c) and Section 6.2(a)(ii) of the
Deposit Trust Agreement, the Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware or under the laws of any other state or the United States of
America, 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
Servicing Agreement, the Insurance Agreement and the Mortgage Loan
Contribution Agreement.
(b) Subject to Section 3.09(vii), the prior written consent of the Note
Insurer, and written notice to the Rating Agencies, any entity into which the
Issuer may be merged or with which it may be consolidated, or any entity
resulting from any merger or consolidation to which the Issuer shall be a
party, shall be the successor Issuer 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, anything in any agreement relating to such merger
or consolidation, by which any such Issuer may seek to retain certain powers,
rights and privileges therefore obtaining for any period of time following
such merger or consolidation to the contrary notwithstanding (other than
Section 3.09(vii)).
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(c) Upon any consolidation or merger of or other succession to the Issuer
in accordance with this Section 3.04, the Person formed by or surviving such
consolidation or merger (if other than the Issuer) may exercise every right
and power of, and shall have all of the obligations of, the Issuer under this
Indenture with the same effect as if such Person had been named as the Issuer
herein.
Section 3.05. Protection of Trust Estate.
(a) The Issuer will from time to time execute and deliver 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 as may be necessary or advisable
to:
(i) Grant more effectively all or any portion of the Trust Estate;
(ii) maintain or preserve the lien of this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant made or
to be made by this Indenture;
(iv) enforce any of the Mortgage Loans, the Servicing Agreement, the
Mortgage Loan Sale Agreement or the Mortgage Loan Contribution
Agreement; or
(v) preserve and defend title to the Trust Estate and the rights of the
Indenture Trustee, and of the Noteholders, in the Mortgage Loans and
the other property held as part of the Trust Estate against the claims
of all Persons and parties.
(b) The Indenture Trustee shall not remove any portion of the Trust Estate
that consists of money or is evidenced by an instrument, certificate or other
writing from the jurisdiction in which it was held, or to which it is
intended to be removed, as described in the Opinion of Counsel delivered at
the Closing Date pursuant to Section 2.1l(c), or cause or permit ownership or
the pledge of any portion of the Trust Estate that consists of book-entry
securities to be recorded on the books of a Person located in a different
jurisdiction from the jurisdiction in which such ownership or pledge was
recorded at such time unless the Indenture Trustee shall have first received
an Opinion of Counsel to the effect that the lien and security interest
created by this Indenture with respect to such property will continue to be
maintained after giving effect to such action or actions.
Section 3.06. Annual Opinions as to Collateral.
On or before December 31st in each calendar year, beginning in 200 ,
the Issuer shall furnish to the Indenture Trustee and the Note Insurer an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, 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 is necessary to maintain
the lien and security interest created by this Indenture and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain such lien and security interest. Such
Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until December 31st of the following calendar year.
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Section 3.07. Performance of Obligations; Servicing Agreement.
(a) The Issuer shall punctually perform and observe all of its obligations
under this Indenture and the Servicing Agreement.
(b) The Issuer shall 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 covenants or obligations under any of the Mortgage Files
or under any instrument included in the Trust Estate, or that would result in
the amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any of the documents or instruments
contained in the Mortgage Files, except as expressly permitted in this
Indenture, the Servicing Agreement or such document included in the Mortgage
File or other instrument or unless such action will not adversely affect the
interests of the Holders of the Notes.
(c) If the Issuer shall have knowledge of the occurrence of a default under
the Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee, the Note Insurer and the Rating Agencies thereof, and shall specify
in such notice the action, if any, the Issuer is taking with respect to such
default.
(d) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, the Indenture Trustee shall promptly notify the
Rating Agencies. As soon as any successor Servicer is appointed, the
Indenture Trustee shall notify the Rating Agencies, specifying in such notice
the name and address of such successor Servicer.
Section 3.08. Investment Company Act.
The Issuer shall at all times conduct its operations so as not to be
subject to, or shall comply with, the requirements of the Investment Company
Act of 1940, as amended (or any successor statute), and the rules and
regulations thereunder.
Section 3.09. Negative Covenants.
The Issuer shall not:
(i) sell, transfer, exchange or otherwise dispose of any portion of the
Trust Estate except as expressly permitted by this Indenture or the
Servicing Agreement;
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(ii) claim any credit on, or make any deduction from, the principal of, or
interest on, any of the Notes by reason of the payment of any taxes
levied or assessed upon any portion of the Trust Estate;
(iii) engage in any business or activity other than as permitted by the Trust
Agreement or other than in connection with, or relating to, the
issuance of the Notes pursuant to this Indenture or amend the Trust
Agreement, as in effect on the Closing Date, other than in accordance
with Section 11.01;
(iv) incur, issue, assume or otherwise become liable for a indebtedness
other than the Notes;
(v) incur, assume, guaranty or agree to indemnify any Person with respect
to any indebtedness of any Person, except for such indebtedness as may
be incurred by the Issuer in connection with the issuance of the Notes
pursuant to this Indenture;
(vi) dissolve or liquidate in whole or in part (until the Notes are paid in
full);
(vii) (1) permit the validity or effectiveness of this Indenture or any Grant
to be impaired, or permit the lien of this Indenture to be impaired,
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations
under this Indenture, except as may be expressly permitted hereby, (2)
permit any lien, charge, security interest, mortgage or other
encumbrance (other than the lien of this Indenture or any Permitted
Encumbrance) to be created on or extend to or otherwise arise upon or
burden the Trust Estate or any part thereof or any interest therein or
the proceeds thereof, or (3) permit the lien of this Indenture not to
constitute a valid perfected first priority security interest in the
Trust Estate; or
(viii) take any other action that should reasonably be expected to, or
fail to take any action if such failure should reasonably be expected
to, cause the Issuer to be taxable as (a) an association pursuant to
Section 7701 of the Code or (b) a taxable mortgage pool pursuant to
Section 7701(i) of the Code.
Section 3.10. Annual Statement as to Compliance.
On or before December 31, 200 , and each December 31 thereafter and
upon receipt of instruction pursuant to the terms of the Management
Agreement, the Issuer shall deliver to the Indenture Trustee, the Note
Insurer, the Rating Agencies and the Underwriters a written statement
prepared by the manager pursuant to the terms of the Management Agreement,
signed by an Authorized Officer of the Owner Trustee, stating that:
(1) a review of the fulfillment by the Issuer during such year of its
obligations under this Indenture has been made under such Authorized
Officer's supervision; and
(2) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year, or, if there has been a Default in
the fulfillment of any such covenant or condition, specifying each such
Default known to such Authorized Officer and the nature and status
thereof.
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Section 3.11. Restricted Payments.
The Issuer shall not, directly or indirectly, (i) pay any dividend or
make any distribution (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 Issuer or otherwise with respect to
any ownership or equity interest or security in or of the Issuer or to the
Servicer, (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, that the
Issuer may make, or cause to be made, distributions to the Servicer, the
Indenture Trustee, the Owner Trustee, the Note Insurer and the
Certificateholders as contemplated by, and to the extent funds are available
for such purpose under this Indenture, the Servicing Agreement or the Trust
Agreement and the Issuer will not, directly or indirectly, make or cause to
be made payments to or distributions from either Note Account except in
accordance with this Indenture.
Section 3.12. Treatment of Notes as Debt for Tax Purposes.
The Issuer shall treat the Notes as indebtedness for all federal and
state tax purposes.
Section 3.13. Notice of Events of Default.
The Issuer shall give the Indenture Trustee, the Note Insurer, the
Rating Agencies and the Underwriters prompt written notice of each Event of
Default hereunder, each default on the part of the Servicer of its
obligations under the Servicing Agreement and each default on the part of the
Seller of its obligations under the Mortgage Loan Sale Agreement.
Section 3.14. Further Instruments and Acts.
Upon request of the Indenture Trustee or the Note Insurer, the Issuer
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.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
Whenever the following conditions shall have been satisfied:
(1) either
(A) 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 2.07, and (ii) Notes for
whose payment money has theretofore been deposited in trust and
thereafter repaid to the Issuer, as provided in Section 3.03)
have been delivered to the Note Registrar for cancellation; or
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(B) all Notes not theretofore delivered to the Note Registrar for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at the Final Maturity Date within one year,
or
(iii) are to be called for redemption within one year under irrevocable
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 Issuer or the Servicer,
and the Issuer or the Servicer, in the case of clauses
(B)(i), (B)(ii) or (B)(iii) above, has irrevocably deposited or
caused to be deposited with the Indenture Trustee, in trust for
such purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to
the Indenture Trustee for cancellation, for principal and
interest to the Final Maturity Date or to the applicable
Redemption Date, as the case may be, and in the case of Notes
that were not paid at the Final Maturity Date of their entire
unpaid principal amount, for all overdue principal and all
interest payable on such Notes to the next succeeding Payment
Date therefor;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer (including, without limitation, amounts due the
Note Insurer hereunder); and
(3) the Issuer has delivered to the Indenture Trustee and the Note Insurer
an Officers' Certificate and an Opinion of Counsel satisfactory in form
and substance to the Indenture Trustee and the Note Insurer each
stating that all conditions precedent herein providing for the
satisfaction and discharge of this Indenture have been complied with;
then, upon Issuer Request, this Indenture and the lien,
rights and interests created hereby and thereby shall cease to be
of further effect, and the Indenture Trustee and each co-trustee
and separate trustee, if any, then acting as such hereunder
shall, at the expense of the Issuer (or of the Servicer in the
case of a redemption by the Servicer), execute and deliver all
such instruments as may be necessary to acknowledge the
satisfaction and discharge of this Indenture and shall pay, or
assign or transfer and deliver, to the Issuer or upon Issuer
Order all cash, securities and other property held by it as part
of the Trust Estate remaining after satisfaction of the
conditions set forth in clauses (1) and (2) above.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Indenture Trustee and the Paying Agent to the Issuer and
the Holders of Notes under Section 3.03, the obligations of the Indenture
Trustee to the Holders of Notes under Section 4.02 and the provisions of
Section 2.07 with respect to lost, stolen, destroyed or mutilated Notes,
registration of transfers of Notes and rights to receive payments of
principal of and interest on the Notes shall survive.
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Section 4.02. Application of Trust Money.
All money deposited with the Indenture Trustee pursuant to Sections
3.03 and 4.01 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 Persons entitled thereto, of the principal and interest for whose
payment such money has been deposited with the Indenture Trustee.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01. Event of Default.
"Event of Default", wherever used herein, means, with respect to Notes
issued hereunder, any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) if the Issuer shall default in the payment on any Payment Date of any
Required Payment Amount or fail to pay the Notes in full on or before
the Final Maturity Date (and in the case of any such default, such
default or failure shall continue for a period of 5 days unremedied);
(2) if the Issuer shall breach or default in the due observance of any one
or more of the covenants set forth in clauses (i) through (viii) of
Section 3.09;
(3) if the Issuer shall breach, or default in the due observance or
performance of, any other of its covenants in this Indenture, and such
Default shall continue for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer and the Note
Insurer by the Indenture Trustee at the direction of the Note Insurer,
or to the Issuer and the Indenture Trustee by the Holders of Notes
representing at least 25% of the Note Balance of the Outstanding Notes,
with the prior written consent of the Note Insurer, a written notice
specifying such Default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(4) if any representation or warranty of the Issuer made in this Indenture
or any certificate or other writing, delivered by the Issuer pursuant
hereto or in connection herewith shall prove to be incorrect in any
material respect as of the time when the same shall have been made and,
within 30 days after there shall have been given, by registered or
certified mail, written notice thereof to the Issuer and the Note
Insurer by the Indenture Trustee at the direction of the Note Insurer,
or to the Issuer and the Indenture Trustee by the Holders of Notes
representing at least 25% of the Note Balance of the Outstanding Notes,
with the prior written consent of the Note Insurer, the circumstance or
condition in respect of which such representation or warranty was
incorrect shall not have been eliminated or otherwise cured; provided,
however, that in the event that there exists a remedy with respect to
any such breach that consists of a purchase obligation, repurchase
obligation or right to substitute under the Basic Documents, then such
purchase obligation, repurchase obligation or right to substitute shall
be the sole remedy with respect to such breach and shall not constitute
an Event of Default hereunder;
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(5) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Issuer in an involuntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other
present or future federal or state bankruptcy, insolvency or similar
law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or of
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days;
(6) the commencement by the Issuer of a voluntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or
future federal or state bankruptcy, insolvency or similar law, or the
consent by the Issuer to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or of any substantial part of its
property or the making by the Issuer of an assignment for the benefit
of creditors or the failure by the Issuer generally to pay its debts as
such debts become due or the taking of corporate action by the Issuer
in furtherance of any of the foregoing; or
(7) the occurrence of an "event of default" under the Insurance Agreement.
The payment by the Note Insurer of any Insured Payment in an amount
sufficient to cover the related Required Payment Amount pursuant to the
Insurance Policy in respect of any Payment Date shall, at the option of the
Note Insurer, constitute an Event of Default with respect to the Notes.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case, but in each case only with the consent of the Note Insurer in the
absence of a Note Insurer Default, the Indenture Trustee may, and on request
of the Holders of Notes representing not less than 50% of the Note Balance of
the Outstanding Notes, shall, declare all the Notes to be immediately due and
payable by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration such Notes, in an amount
equal to the Note Balance of such Notes, together with accrued and unpaid
interest thereon to the date of such acceleration, shall become immediately
due and payable, all subject to the prior written consent of the Note Insurer
in the absence of a Note Insurer Default.
At any time after such a declaration of acceleration of maturity of the
Notes 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
provided the Note Insurer or the Holders of Notes representing more than 50%
of the Note Balance of the Outstanding Notes, with the prior written consent
of the Note Insurer, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
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(1) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all payments of principal of, and interest on, all Notes and all other
amounts that would then be due hereunder or upon such 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, its agents and counsel; and
(2) all Events of Default, other than the nonpayment of the principal of
Notes that have become due solely by such acceleration, have been cured
or waived as provided in Section 5.14.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
Subject to the provisions of Section 3.01 and the following sentence,
if an Event of Default occurs and is continuing, the Indenture Trustee shall
(at the direction of the Note Insurer) and may, with the prior written
consent of the Note Insurer, proceed to protect and enforce its rights and
the rights of the Noteholders and the Note Insurer by any Proceedings the
Indenture Trustee deems appropriate 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 enforce
any other proper remedy. Any proceedings brought by the Indenture Trustee on
behalf of the Noteholders and the Note Insurer or any Noteholder against the
Issuer shall be limited to the preservation, enforcement and foreclosure of
the liens, assignments, rights and security interests under the Indenture and
no attachment, execution or other unit or process shall be sought, issued or
levied upon any assets, properties or funds of the Issuer, other than the
Trust Estate relative to the Notes in respect of which such Event of Default
has occurred. If there is a foreclosure of any such liens, assignments,
rights and security interests under this Indenture, by private power of sale
or otherwise, no judgment for any deficiency upon the indebtedness
represented by the Notes may be sought or obtained by the Indenture Trustee
or any Noteholder against the Issuer. The Indenture Trustee shall be
entitled to recover the costs and expenses expended by it pursuant to this
Article V including reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel.
Section 5.04. Remedies.
If an Event of Default shall have occurred and be continuing and the
Notes have been declared due and payable and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee, at
the direction of the Note Insurer (subject to Section 5.17, to the extent
applicable) shall, for the benefit of the Noteholders and the Note Insurer,
do one or more of the following:
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(a) institute Proceedings for the collection of all amounts then payable on
the Notes, or under this Indenture, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer moneys adjudged
due, subject in all cases to the provisions of Sections 3.01 and 5.03;
(b) in accordance with Section 5.17, 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;
(c) institute Proceedings from time to time for the complete or partial
foreclosure of this Indenture with respect to the Trust Estate;
(d) exercise any remedies of a secured party under the Uniform Commercial
Code and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee or the Holders of the Notes and the
Note Insurer hereunder; and
(e) refrain from selling the Trust Estate and apply all Remittable Funds
pursuant to Section 5.07.
Section 5.05. Indenture Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, composition or other judicial
Proceeding relative to the Issuer or any other obligor upon any of the Notes
or the property of the Issuer or of such other obligor or their creditors,
the Indenture Trustee (irrespective of whether the 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 on
the Issuer for the payment of any overdue principal or interest) shall, with
the prior written consent of the Note Insurer, be entitled and empowered, by
intervention in such Proceeding or otherwise to:
(i) file and prove a claim for the whole amount of principal and interest
owing and unpaid in respect of the Notes and 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 the reasonable
compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel) and of the Noteholders and the Note
Insurer allowed in such Proceeding, and
(ii) collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any receiver,
assignee, trustee, liquidator, or sequestrator (or other similar
official) in any such Proceeding is hereby authorized by each
Noteholder and the Note Insurer to make such payments to the Indenture
Trustee and, in the event that the Indenture Trustee shall consent to
the making of such payments directly to the Noteholders and the Note
Insurer, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel.
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Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder or the Note Insurer any plan of reorganization, arrangement,
adjustment or composition affecting any of the Notes or the rights of any
Holder thereof, or the Note Insurer, or to authorize the Indenture Trustee to
vote in respect of the claim of any Noteholder or the Note Insurer in any
such Proceeding.
Section 5.06. Indenture Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or any of the
Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any Proceeding
relating thereto, and any such Proceeding instituted by the Indenture
Trustee, at the direction of the Note Insurer, shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the Holders of the Notes and the Note Insurer in
respect of which such judgment has been recovered after payment of amounts
required to be paid pursuant to clause (i) Section 5.07.
Section 5.07. Application of Money Collected.
If the Notes have been declared due and payable following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, any money collected by the Indenture Trustee pursuant to this
Article or otherwise and any other monies that may then be held or thereafter
received by the Indenture Trustee as security shall be applied in the
following order, at the date or dates fixed by the Indenture Trustee and, in
case of the payment of the entire amount due on account of principal of, and
interest on, the Notes, upon presentation and surrender thereof:
(i) to the Servicer and Indenture Trustee, the unpaid Monthly Servicing Fee
and Indenture Trustee's Fee due under this Indenture;
(ii) to the Servicer any Monthly Advances and Servicing Advances previously
made that are reimbursable to the Servicer (other than those included
in liquidation expenses for any Liquidated Mortgage Loan and reimbursed
from the related Liquidation Proceeds and from Insurance Proceeds)
under the Servicing Agreement;
(iii) to the PMI Insurer, the amount owing to the PMI Insurer for the premium
payable in respect of the PMI Mortgage Loans;
(iv) to the Note Insurer, the Note Insurer Premium due under the Insurance
Agreement;
(v) to the Noteholders, the Note Interest due under this Indenture;
(vi) to the Noteholders, the amount of Monthly Principal for the Notes with
respect to such date, in reduction of the Note Balance until the Note
Balance is reduced to zero;
(vii) to the Note Insurer, the amount owing to the Note Insurer under the
Insurance Agreement for reimbursement for prior draws made on the
Insurance Policy in respect of the Notes and any other amounts owing to
the Note Insurer under the Insurance Agreement (including any unpaid
Note Insurer Premium in respect of the Notes);
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(viii) to the Noteholders, the Overcollateralization Deficiency Amount,
if any, due under this Indenture;
(ix) to the Indenture Trustee pursuant to the terms of the Servicing
Agreement, Transition Expenses in excess of $50,000, if any, and other
costs and expenses, if not paid by the Servicer pursuant to the
Servicing Agreement or the Custodial Agreement; and
(x) to the payment of the Note Balance of the Outstanding Notes, up to the
amount of their Current Note Balances, without preference or priority
of any kind;
Section 5.08. Limitation on Suits.
No Holder of a Note shall have any right to institute any Proceedings,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Indenture
Trustee and the Note Insurer of a continuing Event of Default;
(2) the Holders of Notes representing not less than 25% of the Note Balance
of the Outstanding Notes shall have made written request to the
Indenture Trustee to institute Proceedings in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(3) such Holder or Holders have offered to the Indenture Trustee indemnity
in full against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
Proceeding;
(5) no direction inconsistent with such written request has been given to
the Indenture Trustee during such 60-day period by the Holders of Notes
representing more than 50% of the Note Balance of the Outstanding
Notes; and
(6) the consent of the Note Insurer shall have been obtained; it being
understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Notes.
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In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than 50% of the Note Balances of the
Outstanding Notes, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken notwithstanding any other provision
herein to the contrary.
Section 5.09. Unconditional Rights of Noteholders to Receive Principal
and Interest.
Subject to the provisions in this Indenture (including Sections 3.01
and 5.03) limiting the right to recover amounts due on a Note to recovery
from amounts in the Trust Estate, the Holder of any Note shall have the
right, to the extent permitted by applicable law, which right is absolute and
unconditional, to receive payment of each installment of interest on such
Note on the respective Payment Date for such installments of interest, to
receive payment of each installment of principal of such Note when due (or,
in the case of any Note called for redemption, on the date fixed for such
redemption) 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 5.10. Restoration of Rights and Remedies.
If the Indenture Trustee, the Note Insurer 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, or has
been determined adversely to the Indenture Trustee, the Note Insurer or to
such Noteholder, then and in every such case the Issuer, the Indenture
Trustee, the Note Insurer 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, the Note Insurer and the Noteholders shall continue as
though no such Proceeding had been instituted.
Section 5.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Indenture
Trustee, the Note Insurer 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 5.12. Delay or Omission Not Waiver.
No delay or omission of the Indenture Trustee, the Note Insurer or of
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 or by law to the Indenture Trustee, the Note
Insurer or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Indenture Trustee, the Note Insurer
or by the Noteholders with the prior consent of the Note Insurer, as the case
may be.
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Section 5.13. Control by Noteholders.
The Holders of Notes representing more than 50% of the Note Balance of
the Outstanding Notes on the applicable Record Date shall, with the consent
of the Note Insurer, have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee
or exercising any trust or power conferred on the Indenture Trustee; provided
that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture;
(2) any direction to the Indenture Trustee to undertake a Sale of the Trust
Estate shall be by the Holders of Notes representing the percentage of
the Note Balance of the Outstanding Notes specified in
Section 5.17(b)(1), unless Section 5.17(b)(2) is applicable; and
(3) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such direction;
provided, however, that, subject to Section 6.01, the Indenture Trustee
need not take any action that it determines might involve it in
liability or be unjustly prejudicial to the Noteholders not consenting.
Section 5.14. Waiver of Past Defaults.
The Holders of Notes representing more than 50% of the Note Balance of
the Outstanding Notes on the applicable Record Date may on behalf of the
Holders of all the Notes, and with the consent of the Note Insurer, waive any
past Default hereunder and its consequences, except a Default:
(1) in the payment of principal or any installment of interest on any Note;
or
(2) in respect of a covenant or provision hereof that under Section 9.02
cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
Section 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by his
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 shall not apply to any suit instituted by the Indenture Trustee, to
any suit instituted by any Noteholder, or group of Noteholders, holding in
the aggregate Notes representing more than 10% of the Note Balance of the
Outstanding Notes, or to any suit instituted by any Noteholder for the
enforcement of the payment of any Required Payment Amount on any Note on or
after the related Payment Date or for the enforcement of the payment of
principal of any Note on or after the Final Maturity Date (or, in the case of
any Note called for redemption, on or after the applicable Redemption Date).
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Section 5.16. Waiver of Stay or Extension Laws.
The Issuer 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 of law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
in, or the performance of, this Indenture; and the Issuer (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 5.17. Sale of Trust Estate.
(a) The power to effect any sale (a "Sale") of any portion of the Trust
Estate pursuant to Section 5.04 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 with respect thereto
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.
(b) To the extent permitted by law, the Indenture Trustee shall not (unless
directed by the Note Insurer) in any private Sale sell or otherwise dispose
of the Trust Estate, or any portion thereof, unless:
(1) the Holders of Notes representing not less than 50% of the Note Balance
of the Notes then Outstanding consent to or direct the Indenture
Trustee to make such Sale; or
(2) the proceeds of such Sale would be not less than the entire amount that
would be payable to the Holders of the Notes, in full payment thereof
in accordance with Section 5.07, on the Payment Date next succeeding
the date of 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 disposition
thereof for purposes of this Section 5.17(b). In the absence of a Note
Insurer Default, no sale hereunder shall be effective without the consent of
the Note Insurer.
(c) Unless the Holders of all Outstanding Notes have otherwise consented or
directed the Indenture Trustee, at any public Sale of all or any portion of
the Trust Estate at which a minimum bid equal to or greater than the amount
described in paragraph (2) of subsection (b) of this Section 5.17 has not
been established by the Indenture Trustee and no Person bids an amount equal
to or greater than such amount, the Indenture Trustee, acting in its capacity
as Indenture Trustee on behalf of the Noteholders, shall prevent such sale
and bid an amount (which shall include the Indenture Trustee's right, in its
capacity as Indenture Trustee, to credit bid) at least $1.00 more than the
highest other bid in order to preserve the Trust Estate on behalf of the
Noteholders.
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(d) In connection with a Sale of all or any portion of the Trust Estate:
(1) any Holder or Holders of Notes may bid for and 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 Outstanding Notes or claims for interest thereon in lieu of cash up
to the amount that shall, upon distribution of the net proceeds of such
Sale, be payable thereon, and such Notes, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Holders thereof after being appropriately stamped to
show such partial payment;
(2) the Indenture Trustee may bid for and acquire the property offered for
Sale in connection with any public Sale thereof, 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 that would be
payable to the Holders of the Notes as a result of such Sale in
accordance with Section 5.07 on the Payment Date next succeeding the
date of such Sale and (B) the expenses of the Sale and of any
Proceedings in connection therewith which are reimbursable to it,
without being required to produce the Notes in order to complete any
such Sale or in order for the net Sale price to be credited against
such Notes, and any property so acquired by the Indenture Trustee shall
be held and dealt with by it in accordance with the provisions of this
Indenture;
(3) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of
the Trust Estate in connection with a Sale thereof,
(4) the Indenture Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Estate in connection with a Sale thereof, and
to take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to ascertain
the Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
Section 5.18. Action on Notes.
The Indenture Trustee's right to seek and recover judgment 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, the
Note Insurer or the Holders of Notes shall be impaired by the recovery of any
judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate.
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Section 5.19. No Recourse to Other Trust Estates or Other Assets of the
Issuer.
The Trust Estate Granted to the Indenture Trustee as security for the
Notes serves as security only for the Notes. Holders of the Notes shall have
no recourse against the trust estate granted as security for any other series
of Notes issued by the Issuer, and no judgment against the Issuer for any
amount due with respect to the Notes may be enforced against either the trust
estate securing any other series or any other assets of the Issuer, nor may
any prejudgment lien or other attachment be sought against any such other
trust estate or any other assets of the Issuer.
Section 5.20. Application of the Trust Indenture Act.
Pursuant to Section 316(a) of the TIA, all provisions automatically
provided for in Section 316(a) are hereby expressly excluded.
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 such of 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 his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Indenture Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(2) In the absence of bad faith on its part, the Indenture Trustee may
request and 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. The Indenture Trustee shall, however,
examine such certificates and opinions to determine whether 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 or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of subsection (b) of this
Section 6.01;
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(2) 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; and
(3) The Indenture Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.13 or 5.17 or exercising any trust
or power conferred upon the Indenture Trustee under this Indenture.
(d) Except with respect to duties of the Indenture Trustee prescribed by
the TIA, as to which this Section 6.01(d) shall not apply, for all purposes
under this Indenture, the Indenture Trustee shall not be deemed to have
notice or knowledge of any Event of Default described in Section 5.01(2),
5.01(5) or 5.01(6) or any Default described in Section 5.01(3) or 5.01(4) or
of any event described in Section 3.05 unless a Responsible Officer assigned
to and working in the Indenture Trustee's corporate trust department has
actual knowledge thereof or unless written notice of any event that is in
fact such an Event of Default or Default is received by the Indenture Trustee
at the Corporate Trust Office, and such notice references the Notes
generally, the Issuer, the Trust Estate or this Indenture.
(e) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur any 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 for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it under the Servicing Agreement or otherwise.
(f) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to the provisions of this Section.
(g) Notwithstanding any extinguishment of all right, title and interest of
the Issuer in and to the Trust Estate following an Event of Default and a
consequent declaration of acceleration of the Maturity of the Notes, whether
such extinguishment occurs through a Sale of the Trust Estate to another
Person, the acquisition of the Trust Estate by the Indenture Trustee or
otherwise, the rights, powers and duties of the Indenture Trustee with
respect to the Trust Estate (or the proceeds thereof) and the Noteholders and
the Note Insurer and the rights of Noteholders and the Note Insurer shall
continue to be governed by the terms of this Indenture.
(h) The Indenture Trustee or any Custodian appointed pursuant to
Section 8.13 shall at all times retain possession of the Mortgage Files in
the State of or the State of , except for
those Mortgage Files or portions thereof released to the Servicer or the Note
Insurer pursuant to this Indenture or the Servicing Agreement.
Section 6.02. Notice of Default.
Immediately after the occurrence of any Default known to the Indenture
Trustee, the Indenture Trustee shall transmit by mail to the Note Insurer and
the Underwriters notice of each such Default and, within 90 days after the
occurrence of any Default known to the Indenture Trustee, the Indenture
Trustee shall transmit by mail to all Holders of Notes notice of each such
Default, unless such Default shall have been cured or waived; provided,
however, that in no event shall the Indenture Trustee provide notice, or fail
to provide notice of a Default known to the Indenture Trustee in a manner
contrary to the requirements of the Trust Indenture Act. Concurrently with
the mailing of any such notice to the Holders of the Notes, the Indenture
Trustee shall transmit by mail a copy of such notice to the Rating Agencies.
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Section 6.03. Rights of Indenture Trustee.
(a) Except as otherwise provided in Section 6.01, 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 any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel reasonably
satisfactory in form and substance to 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 any such Officer's Certificate or Opinion of Counsel.
(c) With the consent of the Note Insurer, which consent shall not be
unreasonably withheld, the Indenture Trustee may act through agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers.
Section 6.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the certificates
of authentication on the Notes, shall be taken as the statements of the
Issuer, and the Indenture Trustee and the Authenticating Agent assume no
responsibility for their correctness. The Indenture Trustee makes no
representations with respect to the Trust Estate or as to the validity or
sufficiency of this Indenture or of the Notes. The Indenture Trustee shall
not be accountable for the use or application by the Issuer of the Notes or
the proceeds thereof or any money paid to the Issuer or upon Issuer Order
pursuant to the provisions hereof.
Section 6.05. May Hold Notes.
The Indenture Trustee, any Agent, or any other agent of the Issuer, in
its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to Sections 6.07 and 6.13, may otherwise deal with the
Issuer or any Affiliate of the Issuer with the same rights it would have if
it were not Indenture Trustee, Agent or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Indenture Trustee in trust hereunder need not be
segregated from other funds except to the extent required by this Indenture
or by law. The Indenture Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed with the Issuer
and except to the extent of income or other gain on investments that are
obligations of the Indenture Trustee, in its commercial capacity, and income
or other gain actually received by the Indenture Trustee on investments,
which are obligations of others.
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Section 6.07. Eligibility, Disqualification.
Irrespective of whether this Indenture is qualified under the TIA, this
Indenture shall always have a Indenture Trustee who satisfies the
requirements of TIA Sections 310(a)(1) and 310(a)(5). The Indenture Trustee
shall always have a combined capital and surplus as stated in Section 6.08.
The Indenture Trustee shall be subject to TIA Section 310(b).
Section 6.08. Indenture Trustee's Capital and Surplus.
The Indenture Trustee shall at all times have a combined capital and
surplus of at least $50,000,000 or shall be a member of a bank holding
company system, the aggregate combined capital and surplus of which is at
least $100,000,000 and shall at all times be rated " " or better by [Rating
Agency] and " " or better by [Rating Agency]; provided, however, that the
Indenture Trustee's separate capital and surplus shall at all times be at
least the amount required by TIA Section 310(a)(2). If the Indenture Trustee
publishes annual reports of condition of the type described in TIA
Section 310(a)(1), its combined capital and surplus for purposes of this
Section 6.08 shall be as set forth in the latest such report. If at any time
the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.08 and TIA Section 310(a)(2), it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Indenture
Trustee under Section 6.10.
(b) The Indenture Trustee may resign at any time by giving written notice
thereof to the Issuer, the Note Insurer and each Rating Agency, in which
event the Issuer will, with the consent of the Note Insurer (and if the
Issuer fails to do so within 30 days, the Note Issuer may) appoint a
successor Indenture Trustee. If an instrument of acceptance by a successor
Indenture Trustee shall not have been delivered to the Indenture Trustee
within 30 days after the giving of such notice of resignation, the resigning
Indenture Trustee may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
(c) The Indenture Trustee may be removed at any time by the Note Insurer
or, with the consent of the Note Insurer, by Act of the Holders representing
at least 51% of the Note Balance of the Outstanding Notes, by written notice
delivered to the Indenture Trustee and to the Issuer.
(d) If at any time:
(1) the Indenture Trustee shall have a conflicting interest prohibited by
Section 6.07 and shall fail to resign or eliminate such conflicting
interest in accordance with Section 6.07 after written request therefor
by the Issuer or by any Noteholder; or
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(2) the Indenture Trustee shall cease to be eligible under Section 6.08 or
shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Indenture Trustee or of its property
shall be appointed, or any public officer shall take charge or control
of the Indenture Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Issuer by an Issuer Order, with
the consent of the Note Insurer, may remove the Indenture Trustee, and the
Issuer shall join with the Indenture Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint
a successor Indenture Trustee acceptable to the Note Insurer and to vest in
such successor Indenture Trustee any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Indenture;
provided, however, if the Issuer and the Note Insurer do not join in such
appointment within fifteen (15) days after the receipt by it of a request to
do so, or in case an Event of Default has occurred and is continuing, the
Indenture Trustee may petition a court of competent jurisdiction to make such
appointment, or (ii) subject to Section 5.15, and, in the case of a
conflicting interest as described in clause (1) above, unless the Indenture
Trustee's duty to resign has been stayed as provided in TIA Section 310(b),
the Note Insurer or any Noteholder who has been a bona fide Holder of a Note
for at least six months may, on behalf of himself and all others similarly
situated, with the consent of the Note Insurer, petition any court of
competent jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Indenture Trustee
for any cause, the Issuer (and if the Issuer fails to do so within 30 days,
the Note Issuer may), by an Issuer Order shall promptly appoint a successor
Indenture Trustee acceptable to the Note Insurer. If within one year after
such resignation, removal or incapability or the occurrence of such vacancy a
successor Indenture Trustee shall be appointed by the Note Insurer or, with
the consent of the Note Insurer, by Act of the Holders of Notes representing
more than 50% of the Note Balance of the Outstanding Notes delivered to the
Issuer and the retiring Indenture Trustee, the successor Indenture Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
the successor Indenture Trustee and supersede the successor Indenture Trustee
appointed by the Issuer. If no successor Indenture Trustee shall have been
so appointed by the Issuer, the Note Insurer or Noteholders and shall have
accepted appointment in the manner hereinafter provided, any Noteholder who
has been a bona fide Holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, with the consent of the Note
Insurer, petition any court of competent jurisdiction for the appointment of
a successor Indenture Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Indenture Trustee and each appointment of a successor Indenture Trustee
to the Holders of Notes and the Note Insurer. Each notice shall include the
name of the successor Indenture Trustee and the address of its Corporate
Trust Office.
Section 6.10. Acceptance of Appointment by Successor.
Every successor Indenture Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer, the Note Insurer and the retiring
Indenture Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Indenture Trustee shall become
effective and such successor Indenture Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Indenture Trustee. Notwithstanding the foregoing, on
request of the Issuer or the successor Indenture Trustee, such retiring
Indenture Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Indenture Trustee all the rights,
powers and trusts of the retiring Indenture Trustee, and shall duly assign,
transfer and deliver to such successor Indenture Trustee all property and
money held by such retiring Indenture Trustee hereunder. Upon request of any
such successor Indenture Trustee, the Issuer shall execute and deliver any
and all instruments for more fully and certainly vesting in and confirming to
such successor Indenture Trustee all such rights, powers and trusts.
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No successor Indenture Trustee shall accept its appointment unless at
the time of such acceptance such successor Indenture Trustee shall be
qualified and eligible under this Article.
Section 6.11. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee.
Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Indenture Trustee, shall be the
successor of the Indenture Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Notes have been authenticated, but not delivered, by the
Indenture Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Indenture Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as
if such successor Indenture Trustee had authenticated such Notes.
Section 6.12. Preferential Collection of Claims Against Issuer.
The Indenture Trustee (and any co-trustee or separate trustee) shall be
subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 31l(b), and an Indenture Trustee (and any co-trustee or separate
trustee) who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
Section 6.13. Co-Indenture Trustees and Separate Indenture Trustees.
At any time or times, for the purpose of meeting the legal requirements
of the TIA or of any jurisdiction in which any of the Trust Estate may at the
time be located, the Indenture Trustee shall have power to appoint, and, upon
the written request of the Indenture Trustee, of the Note Insurer or of the
Holders of Notes representing more than 50% of the Note Balance of the
Outstanding Notes with respect to which a co-trustee or separate trustee is
being appointed with the consent of the Note Insurer, the Issuer shall for
such purpose jointly with the Indenture Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Indenture Trustee either to act
as co-trustee, jointly with the Indenture Trustee, of all or any part of the
Trust Estate, or to act as separate trustee of any such property, in either
case with such powers as may be provided in the instrument of appointment,
and to vest in such Person or Persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Issuer does not join in such
appointment within 15 days after the receipt by it of a request to do so, or
in case an Event of Default has occurred and is continuing, the Indenture
Trustee alone shall have power to make such appointment. All fees and
expenses of any co-trustee or separate trustee shall be payable by the Issuer.
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Should any written instrument from the Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and
all such instruments shall, on request, be executed, acknowledged and
delivered by the Issuer.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:
(1) The Notes shall be authenticated and delivered and all rights, powers,
duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Indenture Trustee hereunder, shall be
exercised, solely by the Indenture Trustee.
(2) The rights, powers, duties and obligations hereby conferred or imposed
upon the Indenture Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed by the Indenture Trustee or by the Indenture Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Indenture Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(3) The Indenture Trustee at any time, by an instrument in writing,
executed by it, with the concurrence of the Issuer evidenced by an
Issuer Order, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case an Event of
Default has occurred and is continuing, the Indenture Trustee shall
have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Issuer upon the
written request of the Indenture Trustee, the Issuer shall join with
the Indenture Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(4) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Indenture Trustee, or any other
such trustee hereunder.
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(5) Any Act of Noteholders delivered to the Indenture Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
Section 6.14. Authenticating Agents.
The Issuer shall appoint an Authenticating Agent with power to act on
its behalf and subject to its direction in the authentication and delivery of
the Notes designated for such authentication by the Issuer and containing
provisions therein for such authentication (or with respect to which the
Issuer has made other arrangements, satisfactory to the Indenture Trustee and
such Authenticating Agent, for notation on the Notes of the authority of an
Authenticating Agent appointed after the initial authentication and delivery
of such Notes) in connection with transfers and exchanges under Section 2.06,
as fully to all intents and purposes as though the Authenticating Agent had
been expressly authorized by that Section to authenticate and deliver Notes.
For all purposes of this Indenture (other than in connection with the
authentication and delivery of Notes pursuant to Sections 2.05 and 2.11 in
connection with their initial issuance), the authentication and delivery of
Notes by the Authenticating Agent pursuant to this Section shall be deemed to
be the authentication and delivery of Notes "by the Indenture Trustee." Such
Authenticating Agent shall at all times be a Person that both meets the
requirements of Section 6.07 for the Indenture Trustee hereunder and has an
office for presentation of Notes in the United States of America. The
Indenture Trustee shall initially be the Authenticating Agent and shall be
the Note Registrar as provided in Section 2.06. The office from which the
Indenture Trustee shall perform its duties as Note Registrar and
Authenticating Agent shall be the Corporate Trust Office. Any Authenticating
Agent appointed pursuant to the terms of this Section 6.14 or pursuant to the
terms of any supplemental indenture shall deliver to the Indenture Trustee as
a condition precedent to the effectiveness of such appointment an instrument
accepting the trusts, duties and responsibilities of Authenticating Agent and
of Note Registrar or co-Note Registrar and indemnifying the Indenture Trustee
for and holding the Indenture Trustee harmless against, any loss, liability
or expense (including reasonable attorneys' fees) incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance, administration of the trust or exercise of authority by such
Authenticating Agent, Note Registrar or co-Note Registrar.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any further
act on the part of the parties hereto or the Authenticating Agent or such
successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Issuer. The Issuer may at any time terminate
the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Issuer. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section, the
Issuer shall promptly appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Indenture Trustee, and shall mail
notice of such appointment to all Holders of Notes.
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The Indenture Trustee agrees, subject to Section 6.01(e), to pay to any
Authenticating Agent from time to time reasonable compensation for its
services and the Indenture Trustee shall be entitled to be reimbursed for
such payments pursuant to Section 6.04 of the Servicing Agreement. The
provisions of Sections 2.09, 6.04 and 6.05 shall be applicable to any
Authenticating Agent.
Section 6.15. Review of Mortgage Files.
(a) Initial Certification. The Indenture Trustee shall, for the benefit of
the Noteholders and the Note Insurer, cause the Custodian to review each
Mortgage File prior to the Closing Date to ascertain that all documents
required to be included in the Mortgage File are included therein, and shall
cause the Custodian to deliver to the Seller, the Representative, the
Depositor, the Note Insurer, the Indenture Trustee and the Servicer on the
Closing Date an Initial Certification in the form attached as Exhibit E-1 to
the Custodial Agreement with respect to each Mortgage Loan to the effect
that, except as specifically noted on a schedule of exceptions thereto,
(A) all documents required to be contained in the Mortgage File are in its
possession, (B) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan, and (C) based on its examination
and only as to the foregoing documents, the information set forth on the
related Mortgage Loan Schedule accurately reflects information set forth in
the Mortgage File.
It is understood that before making the Initial Certification, the
Indenture Trustee shall cause the Custodian to examine the related Mortgage
Loan Documents to confirm that:
(1) each Mortgage Note and Mortgage bears an original signature or
signatures purporting to be that of the Person or Persons named as the
maker and mortgagor/trustor or, if photocopies are permitted, that such
copies bear a reproduction of such signature or signatures;
(2) except for the endorsement in blank, neither the Mortgage nor any
Assignment, on the face or the reverse side(s) thereof, contains
evidence of any unsatisfied claims, liens, security interests,
encumbrances or restrictions on transfer;
(3) the principal amount of the indebtedness secured by the related
Mortgage is identical to the original principal amount of the related
Mortgage Note;
(4) the Assignment of the related Mortgage from the Seller to the Indenture
Trustee is in the form required pursuant to clause (e) of the
definition of "Mortgage Loan Documents" in the Mortgage Loan Sale
Agreement, and bears an original signature of the Seller and any other
necessary party (or signatures purporting to be that of the Seller and
any such other party) or, if photocopies are permitted, that such
copies bear a reproduction of such signature or signatures;
(5) if intervening Assignments are included in the Mortgage File, each such
intervening Assignment bears an original signature of the related
mortgagee and/or the assignee (and any other necessary party) (or
signatures purporting to be that of each such party) or, if photocopies
are permitted, that such copies bear a reproduction of such signature
or signatures;
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(6) if either a title insurance policy, a preliminary title report or a
written commitment to issue a title insurance policy is delivered, the
address of the real property set forth in such policy, report or
written commitment is identical to the real property address contained
in the related Mortgage; and
(7) if any of a title insurance policy, certificate of title insurance or a
written commitment to issue a title insurance policy is delivered, such
policy, certificate or written commitment is for an amount not less
than the original principal amount of the related Mortgage Note and
such title insurance policy insures that the related Mortgage creates a
first or second lien, senior in priority to all other deeds of trust,
mortgages, deeds to secure debt, financing statements and security
agreements and to any mechanics' liens, judgment liens or writs of
attachment other than the related senior lien, if applicable, (or if
the title insurance policy or certificate of title insurance has not
been issued, the written commitment for such insurance obligates the
insurer to issue such policy for an amount not less than the original
principal amount of the related Mortgage Note).
(b) Final Certification. On or before one year following the Closing Date,
the Indenture Trustee shall cause the Custodian to deliver to the Seller, the
Representative, the Depositor, the Note Insurer, the Indenture Trustee and
the Servicer a Final Certification in the form attached as Exhibit E-2 to the
Custodial Agreement evidencing the completeness of the Mortgage File for each
Mortgage Loan, except as specifically noted on a schedule of exceptions
thereto.
(c) In giving each of the Initial Certification and the Final
Certification, neither the Indenture Trustee nor the Custodian shall be under
any duty or obligation (1) to inspect, review or examine any such documents,
instruments, securities or other papers to determine that they or the
signatures thereto are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded or that they are
other than what they purport to be on their face or (2) to determine whether
any Mortgage File should include a flood insurance policy, any rider,
addenda, surety or guaranty agreement, power of attorney, buy down agreement,
assumption agreement, modification agreement, written assurance or
substitution agreement.
(d) Recordation Report. In the event that the Mortgage Loans are required
to be recorded in accordance with the provisions of the Mortgage Loan Sale
Agreement, no later than the fifth Business Day of each third month,
commencing in 200 , the Indenture Trustee shall cause the
Custodian to deliver to the Servicer and the Note Insurer a recordation
report dated as of the first day of such month, identifying those Mortgage
Loans for which it has not yet received (1) an original recorded Mortgage or
a copy thereof certified to be true and correct by the public recording
office in possession of such Mortgage or (2) an original recorded Assignment
of the Mortgage to the Indenture Trustee and any required intervening
Assignments or a copy thereof certified to be a true and correct copy by the
public recording office in possession of such Assignment.
Section 6.16. Indenture Trustee Fees and Expenses.
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The Indenture Trustee shall be entitled to receive the Indenture
Trustee Fee on each Payment Date as provided herein. The Indenture Trustee
also shall be entitled, pursuant to the provisions of Section 6.04 of the
Servicing Agreement, to (i) payment of or reimbursement for expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any of the provisions of this Agreement (including, but not
limited to, the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ) as provided in
the Servicing Agreement, and (ii) indemnification against losses, liability
and expenses, including reasonable attorney's fees, incurred, arising out of
or in connection with this Agreement and the Notes as provided in the
Servicing Agreement.
Section 6.17. Tax Reporting.
The Indenture Trustee shall provide on an annual basis, or as otherwise
required by the Owner Trustee, all information relating to payments on the
Notes as is reasonably required by the Owner Trustee pursuant to its
obligations under Section 2(b)(i) of the Management Agreement and Section
2.11(k) of the Deposit Trust Agreement.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders.
(a) The Issuer shall furnish or cause to be furnished to the Indenture
Trustee (i) semiannually, not less than 45 days nor more than 60 days after
the Payment Date occurring closest to six months after the Closing Date and
each Payment Date occurring at six-month intervals thereafter, all
information in the possession or control of the Issuer, in such form as the
Indenture Trustee may reasonably require, as to names and addresses of the
Holders of Notes, and (ii) at such other times, as the Indenture Trustee may
request in writing, within 30 days after receipt by the Issuer 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.
(b) In addition to furnishing to the Indenture Trustee the Noteholder
lists, if any, required under subsection (a), the Issuer shall also furnish
all Noteholder lists, if any, required under Section 3.03 at the times
required by Section 3.03.
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, if any, furnished to the Indenture Trustee
as provided in Section 7.01 and the names and addresses of the 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
Section 7.01 upon receipt of a new list so furnished.
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(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 Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
Section 7.03. Reports by Indenture Trustee.
(a) Within 60 days after December 31 of each year (the "reporting date"),
commencing with the year after the issuance of the Notes, (i) the Indenture
Trustee shall, if required by TIA Section 313(a), mail to all Holders a brief
report dated as of such reporting date that complies with TIA Section 313(a);
(ii) the Indenture Trustee shall, to the extent not set forth in the Payment
Date Statement pursuant to Section 2.08(d), also mail to Holders of Notes and
the Note Insurer with respect to which it has made advances, any reports with
respect to such advances that are required by TIA Section 313(b)(2); and, the
Indenture Trustee shall also mail to Holders of Notes and the Note Insurer
any reports required by TIA Section 313(b)(1). For purposes of the
information required to be included in any such reports pursuant to TIA
Sections 313(a)(2), 313(b)(1) (if applicable), or 313(b)(2), the principal
amount of indenture securities outstanding on the date as of which such
information is provided shall be the Note Balance of the then Outstanding
Notes covered by the report.
(b) A copy of each report required under this Section 7.03 shall, at the
time of such transmission to Holders of Notes and the Note Insurer be filed
by the Indenture Trustee with the Commission and with each securities
exchange upon which the Notes are listed. The Issuer will notify the
Indenture Trustee when the Notes are listed on any securities exchange.
Section 7.04. Reports by Issuer.
The Issuer (a) shall deliver to the Indenture Trustee within 15 days
after the Issuer is required to file the same with the Commission copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by
rules and regulations prescribe) that the Issuer is required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, and (b) shall also comply with the other provisions of TIA
Section 314(a).
Section 7.05. Exchange Act Reporting. In connection with the preparation
and filing of periodic reports by the Servicer pursuant to Section 4.01 of
the Servicing Agreement, the Indenture Trustee shall timely provide to the
Servicer (I) a list of Holders as shown on the Note Register or Certificate
Register as of the end of each calendar year, (II) copies of all pleadings,
other legal process and any other documents relating to any claims, charges
or complaints involving the Indenture Trustee, as indenture trustee
hereunder, or the Trust Estate that are received by the Indenture Trustee,
(III) notice of all matters that, to the actual knowledge of a Responsible
Officer of the Indenture Trustee, have been submitted to a vote of the
Holders, other than those matters that have been submitted to a vote of the
Holders at the request of the Depositor or the Servicer, and (IV) notice of
any failure of the Indenture Trustee to make any payment to the Holders as
required pursuant to this Indenture. Neither the Servicer nor the Indenture
Trustee shall have any liability with respect to the Servicer's failure to
properly prepare or file such periodic reports resulting from or relating to
the Servicer's inability or failure to obtain any information not resulting
from the Servicer's own negligence or willful misconduct.
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ARTICLE VIII
ACCOUNTS, PAYMENTS OF INTEREST AND PRINCIPAL, AND RELEASES
Section 8.01. Collection of Moneys.
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
hold all such money and property received by it as part of the Trust Estate
and shall apply it as provided in this Indenture.
If the Indenture Trustee shall not have received the Remittable Funds
by close of business on any related Deposit Date, the Indenture Trustee
shall, unless the Issuer or the Servicer shall have made provisions
satisfactory to the Indenture Trustee for delivery to the Indenture Trustee
of an amount equal to such Remittable Funds, deliver a notice, with a copy to
the Note Insurer, to the Issuer and the Servicer of their failure to remit
such Remittable Funds and that such failure, if not remedied by the close of
business on the Business Day after the date upon which such notice is
delivered to the Servicer, shall constitute an event of default under the
Servicing Agreement. If the Indenture Trustee shall subsequently receive any
such Remittable Funds by 2:00 p.m. Eastern Time on such Business Day, such
Event of Default shall not be deemed to have occurred. Notwithstanding any
other provision hereof, the Indenture Trustee shall deliver to the Issuer or
the Servicer, or their respective designee or assignee, any Remittable Funds
received with respect to a Mortgage Loan after the related Deposit Date to
the extent that the Issuer or the Servicer, respectively, previously made
payment or provision for payment with respect to such Remittable Funds in
accordance with this Section 8.01, and any such Remittable Funds shall not be
deemed part of the Trust Estate.
Except as otherwise expressly provided in this Indenture and the
Servicing Agreement, if, following delivery by the Indenture Trustee of the
notice described above, the Servicer shall fail to remit the Remittable Funds
on any Deposit Date, the Indenture Trustee shall deliver a second notice to
the Servicer, the Issuer and the Note Insurer by 2:00 p.m. Eastern Time on
the third Business Day prior to the related Payment Date indicating that an
event of default occurred and is continuing under the Servicing Agreement.
Thereupon, the Indenture Trustee shall take such actions as are required of
the Indenture Trustee under Article VI of the Servicing Agreement. In
addition, if a default occurs in any other performance required under the
Servicing Agreement, the Indenture Trustee may, and upon the request of the
Note Insurer or, with the consent of the Note Insurer, the Holders of Notes
representing more than 50% of the Note Balance of the Outstanding Notes
shall, 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 a Default or Event of Default under this Indenture and to proceed
thereafter as provided in Article V.
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Section 8.02. Note Account; Distributions.
(a) The Issuer hereby directs the Indenture Trustee to establish, at the
Corporate Trust Office, one or more separate trust accounts that shall
collectively be the "Note Account" on or before the Closing Date. The
Indenture Trustee shall promptly deposit in the Note Account (i) all
Remittable Funds received by it from the Servicer pursuant to the Servicing
Agreement, (ii) any other funds from any deposits to be made by the Servicer
pursuant to the Servicing Agreement, (iii) any amount required to be
deposited in the Note Account pursuant to Section 8.01, (iv) all amounts
received pursuant to Section 8.03, and (v) all other amounts received for
deposit in the Note Account, including the payment of any Purchase Price for
a Mortgage Loan received by the Indenture Trustee. All amounts that are
deposited from time to time in a Note Account are subject to withdrawal by
the Indenture Trustee for the purposes set forth in subsections (c) and (d)
of this Section 8.02. All funds withdrawn from the Note Account pursuant to
subsection (c) of this Section 8.02 for the purpose of making payments to the
Holders of Notes shall be applied in accordance with Section 3.03.
(b) So long as no Default or Event of Default shall have occurred and be
continuing, amounts held in the Note Accounts shall be invested in Permitted
Investments, which Permitted Investments shall mature no later than the
Business Day preceding the immediately following Payment Date.
All income or other gains, if any, from investment of moneys deposited
in the Note Accounts shall be for the benefit of the Servicer and on each
Payment Date, any such amounts may be released from the Note Accounts and
paid to the Servicer as part of its compensation for acting as Servicer. Any
loss resulting from such investment of moneys deposited in a Note Account
shall be reimbursed immediately as incurred to the Note Account by the
Servicer. Subject to Section 6.01 and the preceding sentence, neither the
Indenture Trustee nor the Servicer shall in any way be held liable by reason
of any insufficiency in the Note Accounts.
(c) On each Payment Date, the Indenture Trustee shall withdraw amounts on
deposit in the Note Account and pay on a pari passu basis the Indenture
Trustee Fee, Transition Expenses, if any not paid by the Servicer pursuant to
the Servicing Agreement (not to exceed $50,000 in the aggregate), any gains
or income from investments on the Note Account to the Servicer and, provided
notice is given to the Indenture Trustee no later than the 4th Business Day
prior to the Payment Date and to the extent such amounts have not been
withdrawn pursuant to Sections 2.02 and 4.01 of the Servicing Agreement,
amounts required to pay the Servicer any unpaid Servicing Fees then due and
to reimburse the Servicer for Monthly Advances and Servicing Advances
previously made by, and not previously reimbursed to or retained by, the
Servicer, which are so reimbursable to the Servicer pursuant to the Servicing
Agreement (as reported in writing by the Servicer to the Indenture Trustee).
After payment of such amounts, unless the Notes have been declared due and
payable pursuant to Section 5.02 and moneys collected by the Indenture
Trustee are being applied in accordance with Section 5.07, Available Funds on
deposit in the Note Account on any Payment Date or Redemption Date shall be
withdrawn from such Note Account, in the amounts required, for application on
such Payment Date as follows:
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(i) first, to the PMI Insurer, the amount owing for such Payment Date to
the PMI Insurer for the premium payable in respect of the PMI Mortgage
Loans;
(ii) second, to the Note Insurer, the Note Insurer Premium for such Payment
Date in respect of the Notes;
(iii) third, to the Noteholders, the Note Interest with respect to such
Payment Date;
(iv) fourth, to the Noteholders, the amount of Monthly Principal for the
Notes with respect to such Payment Date, in reduction of the Note
Balance until the Note Balance is reduced to zero;
(v) fifth, to the Note Insurer, the amount owing to the Note Insurer under
the Insurance Agreement for reimbursement for prior draws made on the
Insurance Policy in respect of the Notes and any other amounts owing to
the Note Insurer under the Insurance Agreement (including any unpaid
Note Insurer Premium in respect of the Notes);
(vi) sixth, to the Noteholders, the Overcollateralization Deficiency Amount,
if any, on such Payment Date (after giving effect to application of
Monthly Principal for such Payment Date), in reduction of the Note
Balance until the Note Balance is reduced to zero; and
(vii) seventh, to the Indenture Trustee pursuant to the terms of the
Servicing Agreement, Transition Expenses in excess of $50,000, if any,
and other costs and expenses, if not paid by the Servicer pursuant to
the Servicing Agreement or the Custody Agreement.
(d) On or after each Payment Date, so long as the Indenture Trustee shall
have prepared a Payment Date Statement in respect of such Payment Date and
(1) shall have made, or, in accordance with Section 3.03, set aside from
amounts in the Note Account an amount sufficient to make, the payments
required to be made as set forth in Section 8.02(c) as indicated in such
Payment Date Statement, and (2) shall have set aside any amounts that have
been deposited in the Note Account prior to such time that represent amounts
that are to be used to make payments on the Notes on the next succeeding
Payment Date, the cash balance, if any, then remaining in such Note Account
shall be withdrawn from such Note Account by the Indenture Trustee and, so
long as no Default or Event of Default shall have occurred and be continuing,
shall be released from the lien of this Indenture and paid by the Indenture
Trustee to the Issuer.
(e) Any payments made by the Indenture Trustee to the Issuer pursuant to
this Section 8.02 shall be remitted to the Certificate Distribution Account
established and maintained pursuant to the Trust Agreement.
(f) In the event the Indenture Trustee is required to establish a
Collection Account pursuant to the Servicing Agreement, the Indenture Trustee
shall establish and maintain such account in the manner required under the
Servicing Agreement. The Indenture Trustee shall reinvest amounts in the
Collection Account at the direction of the Servicer in Permitted
Investments. All income or other gains, if any, from investment of moneys
deposited in the Collection Account shall be for the benefit of the Servicer,
and the Indenture Trustee shall release any such amounts from the Collection
Account to the Servicer on each Deposit Date.
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Section 8.03. Claims Upon the Insurance Policy; Insurance Policy Payments
Account.
(a) If, by the close of business on the third Business Day prior to a
Payment Date, the Indenture Trustee determines that a Deficiency Amount for
any Payment Date is greater than zero or that a claim may be made under the
Insurance Policy in respect to any amount paid to Noteholders which is
recoverable in bankruptcy as a preference, then the Indenture Trustee shall
give notice to the Note Insurer by telephone or telecopy of the amount of
such Deficiency Amount or preference. Such notice of such Deficiency Amount
shall be confirmed in writing in the form set forth as Exhibit A to the
Endorsement of the Insurance Policy, to the Note Insurer and the Fiscal Agent
(as defined in the Insurance Policy), if any, at or before 12:00 noon New
York time on the third Business Day prior to such Payment Date. Following
Receipt (as defined in the Insurance Policy) by the Note Insurer of such
notice in such form, the Note Insurer will pay any amount payable under the
Insurance Policy on the later to occur of (i) 12:00 noon New York time on the
third Business Day following such receipt and (ii) 12:00 noon New York time
on the Payment Date to which such deficiency relates, as provided in the
Endorsement to the Insurance Policy.
(b) The Indenture Trustee shall establish a separate special purpose trust
account for the benefit of Holders of the Notes and the Note Insurer referred
to herein as the "Insurance Policy Payments Account" over which the Indenture
Trustee shall have exclusive control and sole right of withdrawal. The
Indenture Trustee shall deposit any amount paid under the Insurance Policy in
the Insurance Policy Payments Account and distribute such amount only for
purposes of payment to Holders of Notes of the Insured Payment for which a
claim was made, and such amount may not be applied to satisfy any costs,
expenses or liabilities of the Servicer, the Indenture Trustee or the Trust
Estate. Amounts paid under the Insurance Policy shall be transferred to the
Note Account in accordance with the next succeeding paragraph and disbursed
by the Indenture Trustee to Holders of Notes in accordance with
Section 8.02(c). It shall not be necessary for such payments to be made by
checks or wire transfers separate from the checks or wire transfers used to
pay the Insured Payment with other funds available to make such payment.
However, the amount of any payment of principal of or interest on the Notes
to be paid from funds transferred from the Insurance Policy Payments Account
shall be noted as provided in paragraph (c) below in the Note Register and in
the statement to be furnished to Holders of the Notes pursuant to
Section 7.02. Funds held in the Insurance Policy Payments Account shall not
be invested. Proceeds of the Insurance Policy shall not be considered
payment by the Issuer with respect to such Notes, and the Note Insurer shall
become the owner of such unpaid amounts due from the Issuer in respect of
such Insured Payments as the deemed assignee and subrogee of such Noteholders
and shall be entitled to received the reimbursement in respect thereof. The
Indenture Trustee hereby agrees on behalf of each Noteholder for the benefit
of the Note Insurer that it recognizes that to the extent the Note Insurer
makes Insured Payments for the benefit of the Noteholders, the Note Insurer
will be entitled to receive the related reimbursement in accordance with the
priority of distributions referenced in Section 8.02(c) hereof.
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(c) Each Noteholder, by its purchase of Notes, and the Indenture Trustee
hereby agree that, unless a Note Insurer Default exists and is continuing,
the Note Insurer shall have the right to direct all matters relating to the
Notes in any proceeding in a bankruptcy of the Issuer, including, without
limitation, any proceeding relating to a Preference Claim and the posting of
any surety or Note pending any such appeal.
(d) Unless a Note Insurer Default exists and is continuing, the Indenture
Trustee shall cooperate in all respects with any reasonable request by the
Note Insurer for action to preserve or enforce the Note Insurer's rights or
interests hereunder without limiting the rights or affecting the interests of
the Noteholders as otherwise set forth herein.
(e) The Indenture Trustee shall surrender the Insurance Policy to the Note
Insurer for cancellation upon the expiration of the term of the Insurance
Policy as provided in the Insurance Agreement.
On any Payment Date with respect to which a claim has been made under
the Insurance Policy, the amount of any funds received by the Indenture
Trustee as a result of any claim under the Insurance Policy, to the extent
required to make the Insured Payment on such Payment Date, shall be withdrawn
from the Insurance Policy Payments Account and deposited in the Distribution
Account and applied by the Indenture Trustee, together with the other funds
to be withdrawn from the Note Account pursuant to Section 8.02(c) directly to
the payment in full of the Insured Payment due on the Notes. Funds received
by the Indenture Trustee as a result of any claim under the Insurance Policy
shall be deposited by the Indenture Trustee in the Insurance Policy Payments
Account and used solely for payment to the Holders of the Notes and may not
be applied to satisfy any costs, expenses or liabilities of the Servicer, the
Indenture Trustee, or the Trust Estate. Any funds remaining in the Insurance
Policy Payments Account on the first Business Day following a Payment Date
shall be remitted to the Note Insurer, pursuant to the instructions of the
Note Insurer, by the end of such Business Day.
(f) The Indenture Trustee shall keep a complete and accurate record of the
amount of interest and principal paid in respect of any Note from moneys
received under the Insurance Policy. The Note Insurer shall have the right
to inspect such records at reasonable times during normal business hours upon
one Business Day's prior notice to the Indenture Trustee.
(g) The Indenture Trustee shall promptly notify the Note Insurer and Fiscal
Agent of any proceeding or the institution of any action, of which a
Responsible Officer of the Indenture Trustee has actual knowledge seeking the
avoidance as a preferential transfer under applicable bankruptcy, insolvency,
receivership or similar law (a "Preference Claim") of any Insured Payment
made with respect to the Notes. Each Holder of the Notes, by its purchase of
such Certificates, the Servicer, and the Indenture Trustee hereby agree that
the Note Insurer (so long as no Note Insurer Default has occurred and is
continuing) may at any time during the continuation of any proceeding
relating to a Preference Claim direct all matters relating to such Preference
Claim, including, without limitation, (i) the direction of any appeal of any
order relating to such Preference Claim and (ii) the posting of any surety,
supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, the Note Insurer shall be subrogated to
the rights of the Servicer, the Indenture Trustee, and each Holder of the
Notes in the conduct of any such Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any court order issued in connection with any such Preference
Claim.
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Section 8.04. General Provisions Regarding the Note Accounts and Mortgage
Loans.
(a) Each Note Account shall relate solely to the Notes and to the Mortgage
Loans, Permitted Investments and other property securing the Notes. Funds
and other property in the Note Account shall not be commingled with any other
moneys or property of the Issuer or any Affiliate thereof except as otherwise
expressly provided for herein. Notwithstanding the foregoing, the Indenture
Trustee may hold any funds or other property received or held by it as part
of the Note Account in collective accounts maintained by it in the normal
course of its business and containing funds or property held by it for other
Persons (which may include the Issuer or an Affiliate), provided that such
accounts are under the sole control of the Indenture Trustee and the
Indenture Trustee maintains adequate records indicating the ownership of all
such funds or property and the portions thereof held for credit to a Note
Account.
(b) If any amounts are needed for payment from the Note Account and
sufficient uninvested funds are not available therein to make such payment,
the Indenture Trustee shall cause to be sold or otherwise converted to cash a
sufficient amount of the investments in such Note Account.
(c) The Indenture Trustee shall, at all times while any Notes are
Outstanding, maintain in its possession, or in the possession of an agent
whose actions with respect to such items are under the sole control of the
Indenture Trustee, all certificates or other instruments, if any, evidencing
any investment of funds in the Note Account. The Indenture Trustee shall
relinquish possession of such items, or direct its agent to do so, only for
purposes of collecting the final payment receivable on such investment or
certificate or, in connection with the sale of any investment held in the
Note Account, against delivery of the amount receivable in connection with
any sale.
(d) The Indenture Trustee shall not invest any part of the Trust Estate in
Permitted Investments that constitute uncertificated securities (as defined
in Section 8-102 of the Uniform Commercial Code, as enacted in the relevant
jurisdiction) or in any other book-entry securities unless it has received an
Opinion of Counsel reasonably satisfactory in form and substance to the
Indenture Trustee setting forth, with respect to each type of security for
which authority to invest is being sought, the procedures that must be
followed to maintain the lien and security interest created by this Indenture
with respect to the Trust Estate.
Section 8.05. Releases of Defective Mortgage Loans.
Upon notice or discovery that any of the representations or warranties
of the Seller set forth in Section 4(b) and Exhibit B of the Mortgage Loan
Sale Agreement was materially incorrect or otherwise misleading with respect
to any Mortgage Loan as of the time made, the Indenture Trustee shall direct
the Seller to either (i) within 60 days after the Seller receives actual
knowledge of such incorrectness, eliminate or otherwise cure the circumstance
or condition in respect of which such representation or warranty was
incorrect as of the time made, (ii) withdraw such Defective Mortgage Loan
from the lien of this Indenture following the expiration of such 60-day
period by depositing to the Note Account an amount equal to the Purchase
Price for such Mortgage Loan or (iii) substitute a Qualified Replacement
Mortgage Loan for such Defective Mortgage Loan and deposit any Purchase Price
required to be paid in connection with such substitution pursuant to
Section 7 of the Mortgage Loan Sale Agreement, all as provided in Section 7
of the Mortgage Loan Sale Agreement. Upon any purchase of or substitution
for a Defective Mortgage Loan by the Seller in accordance with Section 7 of
the Mortgage Sale Agreement, the Indenture Trustee shall deliver the Mortgage
File relating to such Defective Mortgage Loan to the Seller, and the Issuer
and the Indenture Trustee shall execute such instruments of transfer as are
necessary to convey title to such Defective Mortgage Loan to the Seller from
the lien of this Indenture.
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Section 8.06. Reports by Indenture Trustee to Noteholders; Access to
Certain Information.
On each Payment Date, the Indenture Trustee shall make available the
written report required by Section 2.08(d) to Noteholders of record as of the
related Record Date (including the Clearing Agency, if any). via the
Indenture Trustee's internet website and its fax-on-demand service. The
Indenture Trustee's internet website shall be initially located at
" ". Assistance in using the website or the fax-on-demand
service can be obtained by calling the Indenture Trustee's customer service
desk at . Noteholders that are unable to use the
above distribution options are entitled to have a paper copy mailed to them
via first class mail by calling the customer service desk and indicating such.
The Indenture Trustee shall make available at its Corporate Trust
Office, during normal business hours, for review by any Noteholder or any
person identified to the Indenture Trustee as a prospective Noteholder,
originals or copies of the following items: (a) the Indenture and any
amendments thereto, (b) all Payment Date Statements delivered to the Issuer
since the Closing Date, (c) any Officers' Certificates delivered to the
Indenture Trustee since the Closing Date as described in the Indenture and
(d) any Accountants' reports delivered to the Indenture Trustee since the
Closing Date as required under the Servicing Agreement. Copies of any and
all of the foregoing items will be available from the Indenture Trustee upon
request; however, the Indenture Trustee will be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing
such copies and shall not be required to provide such copies without
reasonable assurances that such sum will be paid.
Section 8.07. Trust Estate Mortgage Files.
(a) The Indenture Trustee shall release Mortgage Files or portions thereof
to the Servicer on the terms specified in the Servicing Agreement.
(b) The Indenture Trustee shall, at such time as there are no Notes
outstanding, release all of the Trust Estate to the Issuer (other than any
cash held for the payment of the Notes pursuant to Section 3.03 or 4.02).
Section 8.08. Amendment to Servicing Agreement.
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The Indenture Trustee may, without the consent of any Holder, enter
into or consent to any amendment or supplement to the Servicing Agreement for
the purpose of increasing the obligations or duties of any party other than
the Indenture Trustee or the Holders of the Notes. The Indenture Trustee
may, in its discretion, decline to enter into or consent to any such
supplement or amendment: (i) unless the Indenture Trustee receives an
Opinion of Counsel that the position of the Holders would not be materially
adversely affected or written confirmation from the Rating Agencies that the
then-current implied ratings on the Notes (without taking into account the
Insurance Policy) would not be adversely affected by such supplement or
amendment or (ii) if its own rights, duties or immunities would be adversely
affected.
Section 8.09. Delivery of the Mortgage Files Pursuant to Servicing
Agreement.
As is appropriate for the servicing or foreclosure of any Mortgage
Loan, the Indenture Trustee shall cause the Custodian to deliver to the
Servicer of such Mortgage the Mortgage Files for such Mortgage Loan upon
receipt by the Indenture Trustee and the Custodian on or prior to the date
such release is to be made of:
(a) such Officers' Certificates, if any, as are required by the Servicing
Agreement; and
(b) a "Request for Release" in the form prescribed by the Servicing
Agreement, executed by the Servicer, providing that the Servicer will hold or
retain the Mortgage Files in trust for the benefit of the Indenture Trustee,
the Note Insurer and the Holders of Notes.
Section 8.10. Servicer as Agent.
In order to facilitate the servicing of the Mortgage Loans by the
Servicer of such Mortgage Loans, the Servicer of the Mortgage Loans has been
appointed by the Issuer to retain, in accordance with the provisions of the
Servicing Agreement and this Indenture, all Remittable Funds on such Mortgage
Loans prior to their deposit into the Note Account on or prior to the related
Deposit Date.
Section 8.11. Termination of Servicer.
In the event of an event of default specified in Section 6.01 of the
Servicing Agreement, the Indenture Trustee may, with the consent of the Note
Insurer, and shall, upon the direction of the Note Insurer (or as otherwise
provided in the Servicing Agreement), terminate the Servicer as provided in
Section 6.01 and Section 6.02 of the Servicing Agreement. If the Indenture
Trustee terminates the Servicer, the Indenture Trustee shall, pursuant to
Sections 6.01 and 6.02 of the Servicing Agreement, assume the duties of the
Servicer or appoint a successor servicer acceptable to the Issuer, the Note
Insurer and the Rating Agencies and meeting the requirements set forth in the
Servicing Agreement.
Section 8.12. Opinion of Counsel.
The Indenture Trustee shall be entitled to receive at least five
Business Days' notice of any action to be taken pursuant to Sections 8.07(a)
(other than in connection with releases of Mortgage Loans that were the
subject of a Full Prepayment of the type described in clause (i) of the
definition of the term "Full Prepayment") and 8.08, accompanied by copies of
any instruments involved, and the Indenture Trustee shall be entitled to
receive an Opinion of Counsel, in form and substance reasonably satisfactory
to the Indenture Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that all
conditions precedent to the taking of such action have been complied with.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
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Section 8.13. Appointment of Custodians.
The Indenture Trustee may, at the written direction of the Issuer and
at no additional cost to the Issuer or to the Indenture Trustee, with the
consent of the Note Insurer, appoint one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Indenture Trustee. Each
Custodian shall (i) be a financial institution supervised and regulated by
the Comptroller of the Currency, the Board of Governors of the Federal
Reserve System, the Office of Thrift Supervision, or the Federal Deposit
Insurance Corporation; (ii) have combined capital and surplus of at least
$10,000,000; (iii) be equipped with secure, fireproof storage facilities, and
have adequate controls on access to assure the safety and security of the
Mortgage Files; (iv) utilize in its custodial function employees who are
knowledgeable in the handling of mortgage documents and of the functions of a
mortgage document custodian; and (v) satisfy any other reasonable
requirements that the Issuer may from time to time deem necessary to protect
the interests of Noteholders and the Note Insurer in the Mortgage Files.
Each Custodian shall be subject to the same obligations and standard of care
as would be imposed on the Indenture Trustee hereunder assuming the Indenture
Trustee retained the Mortgage Files directly. The appointment of one or more
Custodians shall not relieve the Indenture Trustee from any of its
obligations hereunder. If the Servicer is appointed as a Custodian in
accordance with this Section 8.14, it shall fulfill its servicing and
custodial duties and obligations through separate departments and, if it
maintains a trust department, shall fulfill its custodial duties and
obligations through such trust department.
Section 8.14. Rights of the Note Insurer to Exercise Rights of
Noteholders.
By accepting its Notes, each Noteholder agrees that unless a Note
Insurer Default exists, the Note Insurer shall have the right to exercise all
rights of the Noteholders under this Agreement without any further consent of
the Noteholders, including, without limitation:
(i) the right to require the Servicer to effect foreclosures upon Mortgage
Loans upon failure of the Servicer to do so;
(ii) the right to require the Seller to repurchase or substitute for
Defective Mortgage Loans pursuant to Section 8.05;
(iii) the right to direct the actions of the Indenture Trustee during the
continuance of an Event of Default; and
(iv) the right to vote on proposed amendments to this Indenture.
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In addition, each Noteholder agrees that, unless a Note Insurer Default
exists, the rights specifically set forth above may be exercised by the
Noteholders only with the prior written consent of the Note Insurer.
Except as otherwise provided in Section 8.03 and notwithstanding any
provision in this Indenture to the contrary, so long as a Note Insurer
Default has occurred and is continuing, the Note Insurer shall have no rights
to exercise any voting rights of the Noteholders hereunder, nor shall the
Indenture Trustee be required to obtain the consent of, or act at the
direction of, the Note Insurer.
Section 8.15. Trust Estate and Accounts Held for Benefit of the Note
Insurer.
The Indenture Trustee shall hold the Trust Estate and the Mortgage
Files for the benefit of the Noteholders and the Note Insurer and all
references in this Agreement and in the Notes to the benefit of Holders of
the Notes shall be deemed to include the Note Insurer (provided there does
not exist a Note Insurer Default).
All notices, statements, reports, certificates or opinions required by
this Agreement to be sent to any other party hereto or to the Noteholders
shall also be sent to the Note Insurer.
Section 8.16. [Reserved.]
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
With the consent of the Note Insurer and without the consent of the
Holders of any Notes, the Issuer and the Indenture Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Indenture Trustee, for any of the following
purposes:
(1) 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;
(2) to add to the conditions, limitations and restrictions on the
authorized amount, terms and purposes of the issuance, authentication
and delivery of any Notes, as herein set forth, additional conditions,
limitations and restrictions thereafter to be observed;
(3) to evidence the succession of another Person to the Issuer to the
extent permitted herein, and the assumption by any such successor of
the covenants of the Issuer herein and in the Notes contained;
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(4) to add to the covenants of the Issuer, for the benefit of the Holders
of all Notes and the Note Insurer or to surrender any right or power
herein conferred upon the Issuer;
(5) to cure any ambiguity, to correct or supplement any provision herein
that may be defective or inconsistent with any other provision herein,
or to amend any other provisions with respect to matters or questions
arising under this Indenture, which shall not be inconsistent with the
provisions of this Indenture, provided that such action shall not
adversely affect in any material respect the interests of the Holders
of the Notes or the Holders of the Certificates; and provided, further,
that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Holders of the Notes and the Note
Insurer if the Person requesting the amendment obtains letters from the
Rating Agencies that the amendment would not result in the downgrading
or withdrawal of the implied ratings then assigned to the Notes
(without taking into account the Insurance Policy); or
(6) 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.
Section 9.02. Supplemental Indentures With Consent of Noteholders.
With the consent of the Note Insurer and with the consent of Holders of
Notes representing not less than a majority of the Note Balance of all
Outstanding Notes by Act of said Holders delivered to the Issuer and the
Indenture Trustee, the Issuer and the Indenture Trustee may 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 Outstanding Note
affected thereby:
(1) change any Payment Date or the Final Maturity Date of the Notes or
reduce the principal amount thereof, the Note Interest Rate thereon or
the Redemption Price with respect thereto, change the earliest date on
which any Note may be redeemed at the option of the Issuer, change any
place of payment where, or the coin or currency in which, any Note or
any interest thereon is payable, or impair the right to institute suit
for the enforcement of the payment of any installment of interest due
on any Note on or after the Final Maturity Date thereof or for the
enforcement of the payment of the entire remaining unpaid principal
amount of any Note on or after the Final Maturity Date (or, in the case
of redemption, on or after the applicable Redemption Date);
(2) reduce the percentage of the Note Balance of the Outstanding 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 provisions of this Indenture or Defaults
hereunder and their consequences provided for in this Indenture;
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(3) modify any of the provisions of this Section, Section 5.13 or
Section 5.17(b), except to increase any percentage specified therein or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(4) modify or alter the provisions of the proviso to the definition of the
term "Outstanding";
(5) permit the creation of any lien other than the lien of this Indenture
with respect to any part of the Trust Estate (except for Permitted
Encumbrances) or terminate the lien of this Indenture on any property
at any time subject hereto or deprive the Holder of any Note of the
security afforded by the lien of this Indenture;
(6) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the Required Payment Amount for any Payment
Date (including the calculation of any of the individual components of
such Required Payment Amount) or to affect rights of the Holders of the
Notes to the benefits of any provisions for the mandatory redemption of
Notes contained herein; or
(7) incur any indebtedness, other than the Notes, that would cause the
Issuer or the Trust Estate to be treated as a "taxable mortgage pool"
within the meaning of Code Section 7701(i).
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made in good
faith.
It shall not be necessary for any Act of Noteholders under this
Section 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 Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee
shall mail to the Holders of the Notes to which such 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.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Indenture Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. 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 or immunities under this Indenture or otherwise. The Issuer shall
cause executed copies of any Supplemental Indentures to be delivered to the
Rating Agencies and the Note Insurer.
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Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes to which such supplemental indenture relates that
have theretofore been or thereafter are authenticated and delivered hereunder
shall be bound thereby.
Section 9.05. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
Section 9.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Indenture Trustee shall, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Notes so modified as to conform, in the
opinion of Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 9.07. Amendments to Governing Documents.
The Indenture Trustee shall, subject to Sections 9.01 and 9.02 hereof,
upon Issuer Request, consent to any proposed amendment to the Issuer's
governing documents, or an amendment to or waiver of any provision of any
other document relating to the Issuer's governing documents, such consent to
be given without the necessity of obtaining the consent of the Holders of any
Notes upon receipt by the Indenture Trustee of:
(i) an Officers' Certificate, to which such proposed amendment or waiver
shall be attached, stating that such attached copy is a true copy of
the proposed amendment or waiver and that all conditions precedent to
such consent specified in this Section 9.07 have been satisfied; and
(ii) written confirmation from the Rating Agencies that the implementation
of the proposed amendment or waiver will not adversely affect their
implied ratings of the Notes (without taking into account the Insurance
Policy).
Notwithstanding the foregoing, the Indenture Trustee may decline to
consent to a proposed waiver or amendment that adversely affects its own
rights, duties or immunities under this Indenture or otherwise.
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Nothing in this Section 9.07 shall be construed to require that any
Person obtain the consent of the Indenture Trustee to any amendment or waiver
or any provision of any document where the making of such amendment or the
giving of such waiver without obtaining the consent of the Indenture Trustee
is not prohibited by this Indenture or by the terms of the document that is
the subject of the proposed amendment or waiver.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption.
(a) All the Notes may be redeemed in whole, but not in part, on or after
the Initial Redemption Date at the Redemption Price at the option of the
holders of a majority of the ownership interest of the Issuer (the "Residual
Majority"), or at the option of the Servicer if the Residual Majority shall
not have exercised its option to direct the Servicer to redeem the Notes on
such Redemption Date or, if such option is not exercised by the Servicer, at
the option of the Note Insurer; provided, however, that funds in an amount
equal to the Redemption Price, plus any amounts owed to the Note Insurer
under the Insurance Agreement, any unreimbursed Nonrecoverable Advances and
any unreimbursed amounts due and owing to the Indenture Trustee hereunder,
must have been deposited with the Indenture Trustee prior to the Indenture
Trustee's giving notice of such redemption pursuant to Section 10.02 or the
Issuer shall have complied with the requirements for satisfaction and
discharge of the Notes specified in Section 4.01. Notice of the election to
redeem the Notes shall be furnished to the Indenture Trustee not later than
thirty (30) days prior to the Payment Date selected for such redemption,
whereupon all such Notes shall be due and payable on such Payment Date upon
the furnishing of a notice pursuant to Section 10.02 to each Holder of such
Notes and the Note Insurer. Any expenses associated with the compliance of
the provisions hereof in connection with a redemption of the Notes shall be
paid by the Note Insurer or the Servicer, depending upon which party redeems
the Notes. In no event shall the Note Insurer redeem the Notes unless the
proceeds received from the Note Insurer would be not less than the greater of
(x) the entire amount that would be payable to the Holders of the Notes, in
full payment thereof on the Payment Date next succeeding the date of such
Sale and (y) the fair market value of the Mortgage Loans as of the related
Payment Date. Upon the redemption of the Notes, Mortgage Loans in the Trust
Estate shall be released and delivered to the Issuer.
(b) Upon receipt of the notice from the Servicer or the Note Insurer of its
election to redeem the Notes pursuant to Section 10.01(a), the Indenture
Trustee shall prepare and deliver to the Issuer, the Servicer and the Note
Insurer, no later than the related Redemption Date, a Payment Date Statement
stating therein that it has determined that the conditions to redemption at
the option of the Servicer or Note Insurer have been satisfied and setting
forth the amount, if any, to be withdrawn from each Note Account and paid to
the Servicer as reimbursement for Nonrecoverable Advances and such other
information as may be required to accomplish such redemption.
Section 10.02. Form of Redemption Notice.
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Notice of redemption shall be given by the Indenture Trustee in the
name of and at the expense of the Issuer by first class mail, postage
prepaid, mailed not less than ten days prior to the Redemption Date to each
Holder of Notes to be redeemed, such Holders being determined as of the
Record Date for such Payment Date, and to the Note Insurer.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price at which the Notes of such Series will be redeemed,
(3) the fact of payment in full on such Notes, the place where such Notes
are to be surrendered for payment of the Redemption Price (which shall
be the office or agency of the Issuer to be maintained as provided in
Section 3.02), and that no interest shall accrue on such Note for any
period after the date fixed for redemption.
Failure to give notice of redemption, or any defect therein, to any
Holder of any Note selected for redemption shall not impair or affect the
validity of the redemption of any other Note.
Section 10.03. Notes Payable on Optional Redemption.
Notice of redemption having been given as provided in Section 10.02,
the Notes to be redeemed shall, on the applicable Redemption Date, become due
and payable at the Redemption Price and (unless the Issuer shall default in
the payment of the Redemption Price) no interest shall accrue on such
Redemption Price for any period after such Redemption Date; provided,
however, that if such Redemption Price is not paid on the Redemption Date,
the Note Balance shall, until paid, bear interest from the Redemption Date at
the Note Interest Rate.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee and the Note Insurer an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel (with a copy to the Note Insurer), if requested by the
Indenture Trustee, stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except 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
relating to such particular application or request, no additional certificate
or opinion need be furnished.
(b) Every certificate, opinion or letter with respect to compliance with a
condition or covenant provided for in this Indenture, including one furnished
pursuant to specific requirements of this Indenture relating to a particular
application or request (other than certificates provided pursuant to TIA
Section 314(a)(4)) shall include and shall be deemed to include (regardless
of whether specifically stated therein) the following:
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(1) a statement that each individual signing such certificate, opinion or
letter has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate, opinion or letter are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 11.02. 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 the Issuer 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 his certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based on the
written opinion of other counsel, in which event such Opinion of Counsel
shall be accompanied by a copy of such other counsel's opinion and shall
include a statement to the effect that such counsel believes that such
counsel and the Indenture Trust may reasonably rely upon the opinion of such
other counsel.
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.
Wherever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer'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 Issuer 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 Section 6.01(b)(2).
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Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Indenture Trustee at the request
or direction of the Issuer, then, notwithstanding that the satisfaction of
such condition is a condition precedent to the Issuer's right to make such
request or direction, the Indenture Trustee shall be protected in acting in
accordance with such request or direction if it does not have knowledge of
the occurrence and continuation of such Default or Event of Default as
provided in Section 6.01(d).
Section 11.03. 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 an
agent 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 Issuer. 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 Issuer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by the certificate of any notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership
on behalf of such corporation or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(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 of transfer 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 Issuer in reliance thereon, whether or
not notation of such action is made upon such Notes.
Section 11.04. Notices, etc., to Indenture Trustee, the Note Insurer and
Issuer.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with and received by the Indenture Trustee at
its Corporate Trust Office and at [address]; or
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(2) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder (except as provided in
Section 5.01(3) and (4)) if in writing and mailed, first-class postage
prepaid, to the Issuer addressed to it at
Loan Trust 200 - ), in care of , [address], Attention:
Corporate Trust Administration, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer; or
(3) the Note Insurer 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
addressed to it at [address], Attention: Structured Finance Group
( Loan Trust 200 - , Mortgage Backed Notes,
Series 200 - ), or at any other address previously furnished in writing
to the Indenture Trustee by the Note Insurer; or
(4) the Depositor by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class, postage paid, to Wachovia Mortgage Loan Trust, LLC,
[address], Attention: , or at any other
address previously furnished in writing to the Indenture Trustee by the
Depositor; or
(5) the Seller or the Servicer by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage paid, to , [address],
Attention: General Counsel or at any other address previously
furnished in writing to the Indenture Trustee by the Seller or the
Servicer; or
(6) the Underwriters by any party or by any Noteholder shall be sufficient
for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to (a) [address], Attn: and (b) [address],
Attn: .
Notices required to be given to the Rating Agencies by the Issuer or
the Indenture Trustee shall be in writing, personally delivered or mailed
first-class postage pre-paid, to (i) in the case of [Rating Agency], at the
following address: [address], Attention: , (ii) in the case of
[Rating Agency], at the following address: [address], Attention:
; or as to each of the foregoing, at such other address as shall
be designed by written notice to the other parties.
Section 11.05. Notices and Reports to Noteholders; Waiver of Notices.
Where this Indenture provides for notice to Noteholders of any event or
the mailing of any report to Noteholders, such notice or report shall be
sufficiently given (unless otherwise herein expressly provided) if mailed,
first-class postage prepaid, to each Noteholder affected by such event or to
whom such report is required to be mailed, at the address of such Noteholder
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 or
the mailing of such report. In any case where a notice or report to
Noteholders is mailed in the manner provided above, neither the failure to
mail such notice or report, nor any defect in any notice or report so mailed,
to any particular Noteholder shall affect the sufficiency of such notice or
report with respect to other Noteholders, and any notice or report that is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given or provided.
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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 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.
Section 11.06. Rules by Indenture Trustee.
The Indenture Trustee may make reasonable rules for any meeting of
Noteholders.
Section 11.07. 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 TIA, such required provision shall control.
Section 11.08. 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 11.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall bind
its successors and assigns, whether so expressed or not.
Section 11.10. Separability.
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 11.11. Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, any separate trustee or Co-trustee appointed under Section 6.14,
the Note Insurer and the Noteholders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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Section 11.12. Legal Holidays.
In any case where the date of any Payment Date, Redemption Date or any
other date on which principal of or interest on any Note is proposed to be
paid 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 nominal date of any such Payment Date, Redemption
Date or other date for the payment of principal of or interest on any Note
and no interest shall accrue for the period from and after any such nominal
date, provided such payment is made in full on such next succeeding Business
Day.
Section 11.13. Governing Law.
IN VIEW OF THE FACT THAT NOTEHOLDERS ARE EXPECTED TO RESIDE IN MANY
STATES AND OUTSIDE THE UNITED STATES AND THE DESIRE TO ESTABLISH WITH
CERTAINTY THAT THIS INDENTURE WILL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF A STATE HAVING A WELL-DEVELOPED
BODY OF COMMERCIAL AND FINANCIAL LAW RELEVANT TO TRANSACTIONS OF THE TYPE
CONTEMPLATED HEREIN, THIS INDENTURE AND EACH NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
Section 11.14. Counterparts.
This instrument 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 11.15. Recording of Indenture.
This Indenture is subject to recording in any appropriate public
recording offices, such recording to be effected by the Issuer and at its
expense in compliance with any Opinion of Counsel delivered pursuant to
Section 2.11(c) or 3.06.
Section 11.16. Issuer Obligation.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, 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 its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in
the Issuer, 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 individual capacity) 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 Issuer hereunder, the Owner Trustee shall be subject to,
and entitled to the benefits of, the terms and provisions of the Trust
Agreement.
-84-
Section 11.17. No Petition.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder and Beneficial Owner, by accepting a Note, hereby covenant and
agree that they will not at any time institute against or the
Issuer, or join in any institution against or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Basic Documents. In addition, the
Indenture Trustee will on behalf of the holders of the Notes, (a) file a
written objection to any motion or other proceeding seeking the substantive
consolidation of the Seller with, or the Issuer, (b) file an
appropriate memorandum of points and authorities or other brief in support of
such objection, or (c) endeavor to establish at the hearing on such objection
that the substantive consolidation of such entity would be materially
prejudicial to the Noteholders.
This Section 11.17 will survive for one year and one day following the
termination of this Indenture.
Section 11.18. Inspection.
The Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee and the Note Insurer, during the
Issuer's normal business hours, to examine all of books of account, records,
reports and other papers of the Issuer, to make copies and extracts
therefrom, to cause such books to be audited by Independent Accountants
selected by the Indenture Trustee or the Note Insurer, as the case may be,
and to discuss its affairs, finances and accounts with its officers,
employees and Independent Accountants (and by this provision the Issuer
hereby authorizes its Accountants to discuss with such representatives such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any expense incident to the exercise by the
Indenture Trustee of any right under this Section 11.18 shall be borne by the
Issuer.
Section 11.19. Usury.
The amount of interest payable or paid on any Note under the terms of
this Indenture shall be limited to an amount that shall not exceed the
maximum nonusurious rate of interest allowed by the applicable laws of the
United States or the State of New York (whichever shall permit the higher
rate), that could lawfully be contracted for, charged or received (the
"Highest Lawful Rate"). In the event any payment of interest on any Note
exceeds the Highest Lawful Rate, the Issuer stipulates that such excess
amount will be deemed to have been paid as a result of an error on the part
of both the Indenture Trustee, acting on behalf of the Holder of such Note,
and the Issuer, and the Holder receiving such excess payment shall promptly,
upon discovery of such error or upon notice thereof from the Issuer or the
Indenture Trustee, refund the amount of such excess or, at the option of the
Indenture Trustee, apply the excess to the payment of principal of such Note,
if any, remaining unpaid. In addition, all sums paid or agreed to be paid to
the Indenture Trustee for the benefit of Holders of Notes for the use,
forbearance or detention of money shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the
full term of such Notes.
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Section 11.20. Third Party Beneficiary.
The Note Insurer is intended as a third party beneficiary of this
Indenture shall be binding upon and inure to the benefit of the Note Insurer;
provided that, notwithstanding the foregoing, for so long as a Note Insurer
Default is continuing with respect to its obligations under the Insurance
Policy, the Noteholders shall succeed to the Note Insurer's rights
hereunder. Without limiting the generality of the foregoing, all covenants
and agreements in this Indenture that expressly confer rights upon the Note
Insurer shall be for the benefit of and run directly to the Note Insurer, and
the Note Insurer shall be entitled to rely on and enforce such covenants to
the same extent as if it were a party to this Indenture.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee and the have
caused this Indenture to be duly executed by their respective officers
thereunto duly authorized, all as of the day and year first above written.
[ ] LOAN TRUST 200 -
By: [OWNER TRUSTEE],
not in its individual capacity,
but solely as Owner Trustee
By: __________________________________
Authorized Signatory
[INDENTURE TRUSTEE],
as Indenture Trustee
By: __________________________________
Name:
Title:
-87-
SCHEDULE I MORTGAGE LOAN SCHEDULE
EXHIBIT A FORM OF NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE NOTE IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN
RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AND THE
INSURANCE POLICY AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. THE
ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
Date of Indenture: As of Original Note Balance: $___________
First Payment Date: CUSIP No.: ___________
Denomination: $____________ Note No.: __
[ ] LOAN TRUST 200 -
NOTES, SERIES 200 - , CLASS
Loan Trust 200 - , a statutory trust
organized and existing under the laws of the State of Delaware (herein
referred to as the "Issuer"), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of $___________ payable
on each Payment Date in an amount equal to the result obtained by multiplying
(i) a fraction the numerator of which is $___________ and the denominator of
which is $_____________ (this Note's "Percentage Interest") by (ii) the
aggregate amount, if any, payable from the Note Account in respect of
principal on the Notes pursuant to the Indenture dated as of
, between the Issuer and , a
national banking association, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall
be due and payable on the earlier of (i) the Payment Date occurring in
December 2030 (the "Final Maturity Date"), (ii) the Redemption Date, if any,
pursuant to Article X of the Indenture or (iii) the date on which an Event of
Default shall have occurred and be continuing, if the Notes have been
declared to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in Article I of the Indenture.
Pursuant to the terms of the Indenture, payments will be made on the
25th day of each month or, if such day is not a Business Day, on the Business
Day immediately following such 25th day (each a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this
Note is registered at the close of business on the applicable Record Date, in
an amount equal to the product of (a) the Percentage Interest evidenced by
this Note and (b) the sum of the amounts to be paid on Notes with respect to
such Payment Date, all as more specifically set forth in the Indenture.
Notwithstanding the foregoing, in the case of Definitive Notes, upon
written request at least five days prior to the related Record Date with
appropriate instructions by the Holder of this Note (holding an aggregate
initial Note Balance of at least $1,000,000), any payment of principal or
interest, other than the final installment of principal or interest, shall be
made by wire transfer to an account in the United States designated by such
Holder reasonably satisfactory to the Indenture Trustee.
Payments of principal and interest on the Notes will be made on each
Payment Date to Noteholders of record as of the related Record Date. On each
Payment Date, Noteholders will be entitled to receive interest payments in an
aggregate amount equal to the related Note Interest for such Payment Date,
together with principal payments in an aggregate amount equal to the Monthly
Principal plus, until the Overcollateralization Amount is equal to the
Required Overcollateralization Amount, Excess Cash, if any, for such Payment
Date. The "Note Balance" of a Note as of any date of determination is equal
to the initial principal balance thereof as of the Closing Date, reduced by
the aggregate of all amounts previously paid with respect to such Note on
account of principal.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Mortgage Backed Notes, Series 200 - , Class , issued
under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. To the extent that any provision of this Note contradicts or is
inconsistent with the provisions of the Indenture, the provisions of the
Indenture shall control and supersede such contradictory or inconsistent
provision herein. The Notes are subject to all terms of the Indenture.
The Notes are and will be equally and ratably secured by the Mortgage
Loans and the other collateral related thereto pledged as security therefor
as provided in the Indenture.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable on the date on which an Event of Default shall
have occurred and be continuing if the Indenture Trustee, at the direction or
upon the prior written consent of Financial Security Assurance Inc. (the
"Note Insurer") in the absence of a Note Insurer Default, or the Holders of
the Notes representing not less than 50% of the Note Balance of the
Outstanding Notes (with the prior written consent of the Note Insurer in the
absence of a Note Insurer Default), shall have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Notes shall be made pro rata to the
Noteholders entitled thereto.
A-2
The Note Insurer in consideration of the payment of the premium and
subject to the terms of the Note Guaranty Insurance Policy (the "Insurance
Policy") thereby has unconditionally and irrevocably guaranteed the payment
of the Insured Payments.
Pursuant to the Indenture, unless a Note Insurer Default exists (i) the
Note Insurer shall be deemed to be the holder of the Notes for certain
purposes specified in the Indenture and will be entitled to exercise all
rights of the Noteholders thereunder, including the rights of Noteholders
relating to the occurrence of, and the remedies with respect to, an Event of
Default, without the consent of such Noteholders, and (ii) the Indenture
Trustee may take actions which would otherwise be at its option or within its
discretion, including actions relating to the occurrence of, and the remedies
with respect to, an Event of Default, only at the direction of the Note
Insurer. In addition, on each Payment Date, after the Noteholders have been
paid all amounts to which they are entitled, the Note Insurer will be
entitled to be reimbursed for any unreimbursed draws under the Insurance
Policy, paid Note Insurer Premium (each with interest thereon at the "Late
Payment Rate" specified in the Insurance Agreement) and any other amounts
owed under the Insurance Policy.
The Issuer shall not be liable upon the indebtedness evidenced by the
Notes except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Notes. The assets included in
the Trust Estate and payments under the Insurance Policy will be sole source
of payments on the Notes, and each Holder hereof, by its acceptance of this
Note, agrees that (i) such Note will be limited in right of payment to
amounts available from the Trust Estate and the Insurance Policy as provided
in the Indenture and (ii) such Holder shall have no recourse to the Issuer,
the Owner Trustee, the Indenture Trustee, the Depositor, the Seller, the
Servicer or any of their respective affiliates, or to the assets of any of
the foregoing entities, except the assets of the Issuer pledged to secure the
Notes pursuant to the Indenture.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that
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.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this
Note be submitted for notation of payment. Notwithstanding the foregoing, in
the case of Definitive Notes, upon written request at least five days prior
to the related Record Date with appropriate instructions by the Holder of
this Note (holding an aggregate initial Note Balance of at least $1,000,000),
any payment of principal or interest, other than the final installment of
principal or interest, shall be made by wire transfer to an account in the
United States designated by such Holder reasonably satisfactory to the
Indenture Trustee. Any reduction in the principal amount of this Note (or
any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Holder hereof as of the Record Date preceding such
Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes.
A-3
As provided in the Indenture, the Notes may be redeemed in whole, but
not in part, at the option of the Issuer, on any Payment Date on and after
the date on which the Note Balance is less than 10% of the Original Note
Balance.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note
Register upon surrender of this Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof 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, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
The Note Registrar shall not register the transfer of this Note unless
the Note Registrar has received a representation letter from the transferee
to the effect that either (i) the transferee is not, and is not acquiring the
Note on behalf of or with the assets of, an employee benefit plan or other
retirement plan or arrangement that is subject to Title I of the Employee
Retirement Income Security Act or 1974, as amended, or Section 4975 of the
Code or (ii) the acquisition and holding of this Note by the transferee
qualifies for exemptive relief under a Department of Labor Prohibited
Transaction Class Exemption. Each Beneficial Owner, by acceptance of a
beneficial interest herein, shall be deemed to make one of the foregoing
representations.
Each Noteholder or Beneficial Owner, by acceptance of a Note or, in the
case of a Beneficial Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner Trustee
in its individual capacity, any holder of a beneficial interest in the
Issuer, 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 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.
A-4
Each Noteholder or Beneficial Owner, by acceptance of a Note or, in the
case of a Beneficial Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or
Beneficial Owner will not at any time institute against the or
the Issuer, or join in any institution against the or the Issuer
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture,
the Mortgage Loan Sale Agreement, the Mortgage Loan Contribution Agreement,
the Servicing Agreement, the Management Agreement, the Insurance Agreement
and the Indemnification Agreement (the "Basic Documents").
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Beneficial Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Note Insurer and the Holders of
Notes representing a majority of the Note Balance of all Outstanding Notes.
The Indenture also contains provisions permitting the (i) Note Insurer or
(ii) if a Note Insurer Default exists, the Holders of Notes representing
specified percentages of the Note Balance of Outstanding Notes, on behalf of
the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Note Insurer or by the
Holder of this Note (or any one or more Predecessor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the amendment
thereof, in certain limited circumstances, or the waiver of certain terms and
conditions set forth in the Indenture, without the consent of Holders of the
Notes issued thereunder.
A-5
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
Initially, the Notes will be represented by one Note registered in the
name of CEDE & Co. as nominees of the Clearing Agency. The Notes will be
delivered as provided in the Indenture and subject to certain limitations
therein set forth. The Notes are exchangeable for a like aggregate initial
Note Balance of Notes of different authorized denominations, as requested by
the Holder surrendering the same.
THIS NOTE AND THE INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent whose name appears below by manual signature, this
Note shall not be entitled to any benefit under the Indenture referred to on
the reverse hereof, or be valid or obligatory for any purpose.
A-6
IN WITNESS WHEREOF, the Issuer has caused this Instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
DATE: __________ __, ____
[ ] LOAN TRUST 200 -
By: [OWNER TRUSTEE], not in its individual
capacity but solely as Owner Trustee under the
Trust Agreement
By: ____________________________________
Authorized Signatory
A-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes designated above and referred to in
the within-mentioned Indenture.
Date: __________ __, ____
[AUTHENTICATING AGENT],
Authenticating Agent
By: ___________________________________________
Authorized Signatory
A-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_____________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints_______________________________________________,
attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: ____________________*/
Signature Guaranteed:
__________________________*/
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
EXHIBIT B INSURANCE POLICY
EXHIBIT C FORM OF NOTICE OF CLAIM
EXHIBIT D PMI MORTGAGE LOANS
