BEAR STEARNS ARM TRUST 2007-2 Issuing Entity WELLS FARGO BANK, N.A. Securities Administrator and CITIBANK, N.A. Indenture Trustee
BEAR
XXXXXXX ARM TRUST 2007-2
Issuing
Entity
XXXXX
FARGO BANK, N.A.
Securities
Administrator
and
CITIBANK,
N.A.
Indenture
Trustee
SUPPLEMENTAL
Dated
as
of September 11, 2007
MORTGAGE-BACKED
NOTES
TABLE
OF
CONTENTS
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
Section
1.01
|
Definitions
|
|
Section
1.02
|
Incorporation
by Reference of Trust Indenture Act
|
|
Section
1.03
|
Rules
of Construction
|
|
ARTICLE
II
|
|
|
ORIGINAL
ISSUANCE OF NOTES
|
|
|
Section
2.01
|
Form
|
|
Section
2.02
|
Execution,
Authentication and Delivery
|
|
ARTICLE
III
|
|
|
COVENANTS
|
|
|
Section
3.01
|
[Reserved].
|
|
Section
3.02
|
Existence
|
|
Section
3.03
|
Payment
of Principal and Interest
|
|
Section
3.04
|
Reserve
Fund
|
|
Section
3.05
|
Protection
of Trust Estate
|
|
Section
3.06
|
Opinions
as to Trust Estate
|
|
Section
3.07
|
Performance
of Obligations
|
|
Section
3.08
|
Negative
Covenants
|
|
Section
3.09
|
Annual
Statement as to Compliance
|
|
Section
3.10
|
[Reserved].
|
|
Section
3.11
|
Representations
and Warranties Concerning the Mortgage Loans
|
|
Section
3.12
|
Investment
Company Act
|
|
Section
3.13
|
Issuing
Entity May Consolidate, etc
|
|
Section
3.14
|
Successor
or Transferee
|
|
Section
3.15
|
No
Other Business
|
|
Section
3.16
|
No
Borrowing
|
|
Section
3.17
|
Guarantees,
Loans, Monthly Advances and Other Liabilities
|
|
Section
3.18
|
Capital
Expenditures
|
|
Section
3.19
|
Determination
of Note Index.
|
|
Section
3.20
|
Restricted
Payments
|
|
Section
3.21
|
Notice
of Events of Default
|
|
Section
3.22
|
Further
Instruments and Acts
|
|
Section
3.23
|
Certain
Representations Regarding the Trust Estate.
|
|
Section
3.24
|
Allocation
of Realized Losses
|
|
ARTICLE
IV
|
|
|
THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
Section
4.01
|
The
Notes
|
|
Section
4.02
|
Registration
of and Limitations on Transfer and Exchange of Notes; Appointment
of
Securities Administrator to Act as Note Registrar and Certificate
Registrar
|
|
Section
4.03
|
Mutilated,
Destroyed, Lost or Stolen Notes
|
|
Section
4.04
|
Persons
Deemed Owners
|
|
Section
4.05
|
Cancellation
|
|
Section
4.06
|
Book-Entry
Notes
|
|
Section
4.07
|
Notices
to Depository
|
|
Section
4.08
|
Definitive
Notes
|
|
Section
4.09
|
Tax
Treatment
|
|
Section
4.10
|
Satisfaction
and Discharge of Indenture
|
|
Section
4.11
|
Application
of Trust Money
|
|
Section
4.12
|
[Reserved].
|
|
Section
4.13
|
Repayment
of Monies Held by Securities Administrator
|
|
Section
4.14
|
Temporary
Notes
|
|
Section
4.15
|
ERISA
Treatment.
|
|
ARTICLE
V
|
|
|
DEFAULT
AND REMEDIES
|
|
|
Section
5.01
|
Events
of Default
|
|
Section
5.02
|
Acceleration
of Maturity; Rescission and Annulment
|
|
Section
5.03
|
Collection
of Indebtedness and Suits for Enforcement by Indenture
Trustee.
|
|
Section
5.04
|
Remedies;
Priorities
|
|
Section
5.05
|
Optional
Preservation of the Trust Estate
|
|
Section
5.06
|
Limitation
of Suits
|
|
Section
5.07
|
Unconditional
Rights of Noteholders To Receive Principal and Interest
|
|
Section
5.08
|
Restoration
of Rights and Remedies
|
|
Section
5.09
|
Rights
and Remedies Cumulative
|
|
Section
5.10
|
Delay
or Omission Not a Waiver
|
|
Section
5.11
|
Control
By Noteholders
|
|
Section
5.12
|
Waiver
of Past Defaults
|
|
Section
5.13
|
Undertaking
for Costs
|
|
Section
5.14
|
Waiver
of Stay or Extension Laws
|
|
Section
5.15
|
Sale
of Trust Estate
|
|
Section
5.16
|
Action
on Notes
|
|
ARTICLE
VI
|
|
|
THE
INDENTURE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
|
|
Section
6.01
|
Duties
of Indenture Trustee and Securities Administrator
|
|
Section
6.02
|
Rights
of Indenture Trustee and Securities Administrator
|
|
Section
6.03
|
Individual
Rights of Indenture Trustee
|
|
Section
6.04
|
[Reserved].
|
|
Section
6.05
|
Indenture
Trustee’s and Securities Administrator’s Disclaimer
|
|
Section
6.06
|
Notice
of Event of Default
|
|
Section
6.07
|
Reports
to Holders and Tax Administration.
|
|
Section
6.08
|
Compensation
|
|
Section
6.09
|
Replacement
of Indenture Trustee and the Securities Administrator
|
|
Section
6.10
|
Successor
Indenture Trustee and Securities Administrator by
Xxxxxx
|
|
Section
6.11
|
Appointment
of Co-Indenture Trustee or Separate Indenture Trustee
|
|
Section
6.12
|
Eligibility;
Disqualification
|
|
Section
6.13
|
Representations
and Warranties
|
|
Section
6.14
|
Representations
and Warranties
|
|
Section
6.15
|
Directions
to Indenture Trustee and the Securities Administrator.
|
|
Section
6.16
|
The
Agents
|
|
ARTICLE
VII
|
|
|
NOTEHOLDERS’
LISTS AND REPORTS
|
|
|
Section
7.01
|
Issuing
Entity To Furnish Securities Administrator and Indenture Trustee
Names and
Addresses of Noteholders
|
|
Section
7.02
|
Preservation
of Information; Communications to Noteholders
|
|
Section
7.03
|
Financial
Information
|
|
Section
7.04
|
Statements
to Noteholders
|
|
ARTICLE
VIII
|
|
|
ACCOUNTS,
DISBURSEMENTS AND RELEASES
|
|
|
Section
8.01
|
Collection
of Money
|
|
Section
8.02
|
Officer’s
Certificate
|
|
Section
8.03
|
Termination
Upon Distribution to Noteholders
|
|
Section
8.04
|
Termination
Upon REMIC Conversion
|
|
Section
8.05
|
Release
of Trust Estate
|
|
Section
8.06
|
Surrender
of Notes Upon Final Payment or Receipt of REMIC
Securities
|
|
Section
8.07
|
Optional
Redemption of the Mortgage Loans
|
|
ARTICLE
IX
|
|
|
SUPPLEMENTAL
INDENTURES
|
|
|
Section
9.01
|
Supplemental
Indentures Without Consent of Noteholders
|
|
Section
9.02
|
Supplemental
Indentures With Consent of Noteholders
|
|
Section
9.03
|
Execution
of Supplemental Indentures
|
|
Section
9.04
|
Effect
of Supplemental Indenture
|
|
Section
9.05
|
Conformity
with Trust Indenture Act
|
|
Section
9.06
|
Reference
in Notes to Supplemental Indentures
|
|
ARTICLE
X
|
|
|
MISCELLANEOUS
|
|
|
Section
10.01
|
Compliance
Certificates and Opinions, etc
|
|
Section
10.02
|
Form
of Documents Delivered to Indenture Trustee or the Securities
Administrator
|
|
Section
10.03
|
Acts
of Noteholders
|
|
Section
10.04
|
Notices
etc., to Indenture Trustee Issuing Entity, Securities Administrator
and
Rating Agencies
|
|
Section
10.05
|
Notices
to Noteholders; Waiver
|
|
Section
10.06
|
Conflict
with Trust Indenture Act
|
|
Section
10.07
|
Effect
of Headings
|
|
Section
10.08
|
Successors
and Assigns
|
|
Section
10.09
|
Separability
|
|
Section
10.10
|
Legal
Holidays
|
|
Section
10.11
|
GOVERNING
LAW
|
|
Section
10.12
|
Counterparts
|
|
Section
10.13
|
Recording
of Indenture
|
|
Section
10.14
|
Issuing
Entity Obligation
|
|
Section
10.15
|
No
Petition
|
|
Section
10.16
|
Inspection
|
|
ARTICLE
XI
|
|
|
TMP
TRIGGER EVENT AND REMIC CONVERSION
|
|
|
Section
11.01
|
Events
to Occur Upon TMP Trigger Event and Prior to REMIC
Conversion
|
|
Section
11.02
|
REMIC
Conversion
|
|
Section
11.03
|
Acts
in Furtherance of REMIC
Conversion
|
EXHIBITS
|
Exhibit
A-1
|
Form
of Class A Notes
|
|
Exhibit
A-2
|
Form
of Class X Notes
|
|
Exhibit
A-3
|
Form
of Class B Notes
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
Exhibit
C
|
Form
of Rule 144A Investment Representation Letter
|
|
Exhibit
D
|
Form
of Transferee Letter
|
|
Exhibit
E
|
Form
of Transferor Certificate
|
|
Exhibit
F
|
Form
of Transferee Certificate
|
|
Exhibit
G
|
Form
of Lender Transferor Certificate
|
|
Appendix
A
|
Definitions
|
RECONCILIATION
AND TIE BETWEEN TRUST INDENTURE
ACT
OF
1939 AND INDENTURE PROVISIONS*
Act
Section Indenture
Section
|
Trust
Indenture Act Section
|
Indenture
Section
|
|
310(a)(1)
|
6.11
|
|
(a)(2)
|
6.11
|
|
(a)(3)
|
6.10
|
|
(a)(4)
|
Not
Applicable
|
|
(a)(5)
|
6.11
|
|
(b)
|
6.08,
6.11
|
|
(c)
|
Not
Applicable
|
|
311(a)
|
6.12
|
|
(b)
|
6.12
|
|
(c)
|
Not
Applicable
|
|
312(a)
|
7.01,
7.02(a)
|
|
(b)
|
7.02(b)
|
|
(c)
|
7.02(c)
|
|
313(a)
|
Not
Applicable
|
|
(b)
|
Not
Applicable
|
|
(c)
|
Not
Applicable
|
|
(d)
|
Not
Applicable
|
|
314(a)
|
3.10
|
|
(b)
|
3.07
|
|
(c)(1)
|
8.05(c),
10.01(a)
|
|
(c)(2)
|
8.05(c),
10.01(a)
|
|
(c)(3)
|
Not
Applicable
|
|
(d)(1)
|
8.05(c),
10.01(b)
|
|
(d)(2)
|
8.05(c),
10.01(b)
|
|
(d)(3)
|
8.05(c),
10.01(b)
|
|
(e)
|
10.01(a)
|
|
315(a)
|
6.01(b)
|
|
(b)
|
6.05
|
|
(c)
|
6.01(a)
|
|
(d)
|
6.01(c)
|
|
(d)(1)
|
6.01(c)
|
|
(d)(2)
|
6.01(c)
|
|
(d)(3)
|
6.01(c)
|
|
(e)
|
5.13
|
|
316(a)(1)(A)
|
5.11
|
|
316(a)(1)(B)
|
5.12
|
|
316(a)(2)
|
Not
Applicable
|
|
316(b)
|
5.07
|
|
317(a)(1)
|
5.04
|
|
317(a)(2)
|
5.03(d)
|
|
317(b)
|
3.03(a)(i)
|
|
318(a)
|
10.07
|
This Supplemental
Indenture, dated as of September 11, 2007, is entered into among Bear Xxxxxxx
ARM Trust 2007-2, a Delaware statutory trust, as Issuing Entity (the “Issuing
Entity”), Xxxxx Fargo Bank, N.A., as Securities Administrator (the “Securities
Administrator”) and Citibank, N.A., as Indenture Trustee (the “Indenture
Trustee”).
WITNESSETH
THAT:
Each
party hereto agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Issuing Entity’s Mortgage-Backed
Notes, Series 2007-2 (the “Notes”).
GRANTING
CLAUSE
The
Issuing Entity hereby Grants to the Indenture Trustee at the Closing Date,
as
trustee for the benefit of the Holders of the Notes, all of the Issuing Entity's
right, title and interest in and to, whether now existing or hereafter created,
(a) the Mortgage Loans and the proceeds thereof and all rights under the Related
Documents; (b) all funds on deposit from time to time in the Payment Account
and
in all proceeds thereof; (c) any REO Property; (d) all rights under (I) the
Mortgage Loan Purchase Agreement as assigned to the Issuing Entity, with respect
to the Mortgage Loans as assigned to the Issuing Entity, (II) the Required
Insurance Policies and any amounts paid or payable by the insurer under any
Insurance Policy (to the extent the mortgagee has a claim thereto), (III) the
rights with respect to the Xxxxx Fargo Servicing Agreement and the Countrywide
Servicing Agreement, as assigned to the Issuing Entity by the related Assignment
Agreement and (IV) the rights with respect to the Sale Agreements as assigned
to
the Issuing Entity by the Sale and Servicing Agreement; and; and (f) all present
and future claims, demands, causes and choses in action in respect of any or
all
of the foregoing and all payments on or under, and all proceeds of every kind
and nature whatsoever in respect of, any or all of the foregoing and all
payments on or under, and all proceeds of every kind and nature whatsoever
in
the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, checks, deposit accounts, rights to payment of any and every kind,
and other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds
of
any of the foregoing (collectively, the "Trust Estate" or the
"Collateral").
The
foregoing Grant is made in trust to secure the payment of principal of and
interest on, and any other amounts owing in respect of, the Notes, subject
to
the priority set forth herein, and to secure compliance with the provisions
of
this Indenture, all as provided in this Indenture.
The
Indenture Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Xxxxx, accepts the trust under this Indenture in accordance
with the provisions hereof and each of the Indenture Trustee and the Securities
Administrator agree to perform their respective duties as Indenture Trustee
and
Securities Administrator as required herein.
In
connection with a REMIC Conversion, the Issuing Entity, concurrently with the
execution and delivery of the new REMIC Class A Indenture and new Underlying
REMIC Trust Pooling and Servicing Agreement, shall transfer and assign to the
Underlying REMIC Trust without recourse all its right, title and interest in
and
to the Collateral then remaining in the Trust Estate for the benefit of the
holders of the REMIC Certificates. At such time, the Issuing Entity
shall also grant to the Indenture Trustee all of the Issuing Entity’s right,
title and interest in and to the REMIC Class A Certificates for the benefit
of
the holders of the REMIC Class A Notes and the Certificates, whereupon the
Indenture Trustee shall declare that it holds and will hold the same in trust
for the exclusive use and benefit of the holders of the REMIC Class A Notes
and
the Certificates.
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions. For
all purposes of this Indenture, except as otherwise expressly provided herein
or
unless the context otherwise requires, capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms in the Definitions
attached hereto as Appendix A which is incorporated by reference herein. All
other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02 Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the Trust Indenture Act (the “TIA”), the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following
meanings:
“Commission”
means the Securities and Exchange Commission.
“indenture
securities” means the Notes.
“indenture
security holder” means a Noteholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Indenture Trustee.
“obligor”
on the indenture securities means the Issuing Entity and any other obligor
on
the indenture securities.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rules have the meanings
assigned to them by such definitions.
Section
1.03 Rules
of Construction. Unless the context otherwise requires:
(i) a
term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time
to time;
(iii) “or”
is
not exclusive;
(iv) “including”
means including without limitation;
(v) words
in
the singular include the plural and words in the plural include the singular;
and
(vi) any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORIGINAL
ISSUANCE OF NOTES
Section
2.01 Form. The
Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class III-A-1, Class
III-A-2, Class IV-A-1, Class IV-A-2, Class X, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Notes, together with the Securities
Administrator’s certificate of authentication, shall be in substantially the
form set forth in Exhibits A-1, A-2 and A-3 to this Indenture, respectively,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture.
The
Notes
shall be typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved
borders).
The
terms
of the Notes set forth in Exhibits A-1, A-2 and A-3 to this Indenture are part
of the terms of this Indenture.
Section
2.02 Execution,
Authentication and Delivery. The Notes shall be executed on
behalf of the Issuing Entity by any of its Authorized Officers. The signature
of
any such Authorized Officer on the Notes may be manual or
facsimile.
Notes
bearing the manual or facsimile signature of individuals who were at any time
Authorized Officers of the Issuing Entity shall bind the Issuing Entity,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The
Securities Administrator shall upon Issuer Request authenticate and deliver
each
Class of Notes for original issue in an aggregate initial principal amount
equal
to the Initial Note Principal Balance or Initial Notional Amount, as applicable,
for such Class of Notes.
Each
of
the Notes shall be dated the date of its authentication. The Class I-A-1, Class
I-A-2, Class II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1
and Class IV-A-2 Certificates shall be issuable as registered Notes in
book-entry form and the Notes shall be issuable in the minimum initial Note
Principal Balances of $25,000 and in integral multiples of $1 in excess
thereof. The Class X Notes shall be issuable as registered Notes in
physical form and the Notes shall be issuable in the minimum initial Notional
Amount of $25,000 and in integral multiples of $1 in excess
thereof. The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5
and Class B-6 Notes shall be issuable as registered Notes in physical form
and
the Notes shall be issuable in the minimum initial Note Principal Balances
of
$25,000 and in integral multiples of $1 in excess thereof.
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
Securities Administrator by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
ARTICLE
III
COVENANTS
Section
3.01 [Reserved].
Section
3.02 Existence. The
Issuing Entity will keep in full effect its existence, rights and franchises
as
a statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuing Entity hereunder is or becomes, organized under the laws
of any other state or of the United States of America, in which case the Issuing
Entity will keep in full effect its existence, rights and franchises under
the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Indenture, the
Notes and each other instrument or agreement included in the Trust
Estate.
Section
3.03 Payment
of Principal and Interest. (a) On each Payment Date,
the Securities Administrator shall withdraw from the Payment Account the
Available Funds for such Payment Date and make the following distributions
in
the order of priority set forth below, in each case to the extent of the related
Available Funds remaining for such Payment Date:
|
(I)
|
On
each Payment Date, the Available Funds related to Loan Group I for
such
Payment Date will be distributed as
follows:
|
(A) first,
from the related Interest Funds, to the Class I-A-1 Notes and Class I-A-2 Notes,
on a pro rata basis, the related Accrued Note Interest on such Classes for
such
Payment Date;
(B) second,
from remaining related Interest Funds, to the Class I-A-1 Notes and Class I-A-2
Notes, on a pro rata basis, any related Accrued Note Interest thereon remaining
undistributed from previous Payment Dates, with accrued interest on such
amounts;
(C) third,
from the related Principal Funds, to the Class I-A-1 Notes and Class I-A-2
Notes, on a pro rata basis, in reduction of the Note Principal Balances thereof,
the Senior Optimal Principal Amount for such Classes for such Payment Date,
until the Note Principal Balances thereof have been reduced to
zero;
(D) fourth,
from remaining related Interest Funds, to the Class I-A-1 Notes and Class I-A-2
Notes, on a pro rata basis, an amount equal to any Basis Risk Shortfall
Carryover Amounts on such Classes based on the amount of Basis Risk Shortfall
Carryover Amounts for each such Class for such Payment Date; and
(E) fifth,
from remaining Available Funds related to Loan Group I, to the Class I-A-1
Notes
and Class I-A-2 Notes, on a pro rata basis, an amount equal to any previously
allocated Realized Losses, based on the amount of Realized Losses previously
allocated to each such Class.
|
(II)
|
On
each Payment Date, the Available Funds related to Loan Group II for
such
Payment Date will be distributed as
follows:
|
(A) first,
from the related Interest Funds, to the Class II-A-1 Notes and Class II-A-2
Notes, on a pro rata basis, the related Accrued Note Interest on such Classes
for such Payment Date;
(B) second,
from remaining related Interest Funds, to the Class II-A-1 Notes and Class
II-A-2 Notes, on a pro rata basis, any related Accrued Note Interest thereon
remaining undistributed from previous Payment Dates, with accrued interest
on
such amounts;
(C) third,
from the related Principal Funds, to the Class II-A-1 Notes and Class II-A-2
Notes, on a pro rata basis, in reduction of the Note Principal Balances thereof,
the Senior Optimal Principal Amount for such Classes for such Payment Date,
until the Note Principal Balances thereof have been reduced to
zero;
(D) fourth,
from remaining related Interest Funds, to the Class II-A-1 Notes and Class
II-A-2 Notes, on a pro rata basis, an amount equal to any Basis Risk Shortfall
Carryover Amounts on such Classes based on the amount of Basis Risk Shortfall
Carryover Amounts for each such Class for such Payment Date; and
(E) fifth,
from remaining Available Funds related to Loan Group II, to the Class II-A-1
Notes and Class II-A-2 Notes, on a pro rata basis, an amount equal to any
previously allocated Realized Losses, based on the amount of Realized Losses
previously allocated to each such Class.
|
(III)
|
On
each Payment Date, the Available Funds related to Loan Group III
for such
Payment Date will be distributed as
follows:
|
(A) first,
from the related Interest Funds, to the Class III-A-1 Notes and Class III-A-2
Notes, on a pro rata basis, the related Accrued Note Interest on such Classes
for such Payment Date;
(B) second,
from remaining related Interest Funds, to the Class III-A-1 Notes and Class
III-A-2 Notes, on a pro rata basis, any related Accrued Note Interest thereon
remaining undistributed from previous Payment Dates, with accrued interest
on
such amounts;
(C) third,
from the related Principal Funds, to the Class III-A-1 Notes and Class III-A-2
Notes, on a pro rata basis, in reduction of the Note Principal Balances thereof,
the Senior Optimal Principal Amount for such Classes for such Payment Date,
until the Note Principal Balances thereof have been reduced to
zero;
(D) fourth,
from remaining related Interest Funds, to the Class III-A-1 Notes and Class
III-A-2 Notes, on a pro rata basis, an amount equal to any Basis Risk Shortfall
Carryover Amounts on such Classes based on the amount of Basis Risk Shortfall
Carryover Amounts for each such Class for such Payment Date; and
(E) fifth,
from remaining Available Funds related to Loan Group III, to the Class III-A-1
Notes and Class III-A-2 Notes, on a pro rata basis, an amount equal to any
previously allocated Realized Losses, based on the amount of Realized Losses
previously allocated to each such Class.
|
(IV)
|
On
each Payment Date, the Available Funds related to Loan Group IV for
such
Payment Date will be distributed as
follows:
|
(A) first,
from the related Interest Funds, to the Class IV-A-1 Notes and Class IV-A-2
Notes, on a pro rata basis, the related Accrued Note Interest on such Classes
for such Payment Date;
(B) second,
from remaining related Interest Funds, to the Class IV-A-1 Notes and Class
IV-A-2 Notes, on a pro rata basis, any related Accrued Note Interest thereon
remaining undistributed from previous Payment Dates, with accrued interest
on
such amounts;
(C) third,
from the related Principal Funds, to the Class IV-A-1 Notes and Class IV-A-2
Notes, on a pro rata basis, in reduction of the Note Principal Balances thereof,
the Senior Optimal Principal Amount for such Classes for such Payment Date,
until the Note Principal Balances thereof have been reduced to
zero;
(D) fourth,
from remaining related Interest Funds, to the Class IV-A-1 Notes and Class
IV-A-2 Notes, on a pro rata basis, an amount equal to any Basis Risk Shortfall
Carryover Amounts on such Classes based on the amount of Basis Risk Shortfall
Carryover Amounts for each such Class for such Payment Date; and
(E) fifth,
from remaining Available Funds related to Loan Group IV, to the Class IV-A-1
Notes and Class IV-A-2 Notes, on a pro rata basis, an amount equal to any
previously allocated Realized Losses, based on the amount of Realized Losses
previously allocated to each such Class.
|
(V)
|
On
each Payment Date, the Available Funds, remaining after the payments
made
in clause (I), (II), (III) and (IV) above for such Payment Date shall
be
distributed as follows:
|
|
(A)
|
first,
to the Class X Notes, in an amount equal to (a) the Accrued Note
Interest
on such Class for such Payment Date, to the extent of the remaining
Interest Funds for such Payment Date and (b) any Accrued Note Interest
thereon remaining undistributed from previous Payment Dates, with
accrued
interest thereon, to the extent of any remaining Interest Funds for
such
Payment Date;
|
|
(B)
|
second,
sequentially to each of the Class B-1, Class B-2, Class B-3, Class
B-4,
Class B-5 and Class B-6 Notes, in that order, up to an amount equal
to and
in the following order with respect to each such Class: (a) the Accrued
Note Interest thereon for such Payment Date (subject to Net Interest
Shortfalls allocated to such Class) to the extent of any remaining
Interest Funds for such Payment Date; (b) any Accrued Note Interest
thereon remaining undistributed from previous Payment Dates, with
accrued
interest thereon, to the extent of any remaining Interest Funds for
such
Payment Date; and (c) such Class’s Allocable Share of the Subordinate
Optimal Principal Amount for such Payment Date, to the extent of
any
remaining Principal Funds and until the Note Principal Balance thereof
has
been reduced to zero; and
|
|
(C)
|
third,
to the Securities Administrator for distribution to the Certificateholders
as set forth in the Trust
Agreement.
|
|
(VI)
|
If
on any Payment Date the Principal Funds for a Loan Group are less
than the
Senior Optimal Principal Amount for the related Senior Notes, then
such
amount shall be reduced for such Payment Date, and such remaining
Principal Funds shall be distributed to the related Senior Notes,
on a pro
rata basis, on the basis of such reduced
amounts.
|
(b) No
Accrued Note Interest will be payable with respect to any Class of Notes after
the Payment Date on which the Note Principal Balance or Notional Amount of
such
Note has been reduced to zero.
(c) Each
distribution with respect to a Book-Entry Note shall be paid to the Depository,
as Holder thereof, and the Depository shall be responsible for crediting the
amount of such distribution to the accounts of its Depository Participants
in
accordance with its normal procedures. Each Depository Participant shall be
responsible for disbursing such distribution to the Note Owners 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 Note Owners that it
represents. None of the Securities Administrator, the Depositor or the Master
Servicer shall have any responsibility therefor.
(d) On
each
Payment Date, the Securities Administrator shall deposit in the Certificate
Payment Account all amounts it received pursuant to this Section 3.03 for the
purpose of distributing such funds to the Certificateholders. The Securities
Administrator shall make distributions to the Certificateholders under the
Trust
Agreement as directed by the Securities Administrator hereunder.
(e) Any
installment of interest or principal, if any, payable on any Note that is
punctually paid or duly provided for by the Issuing Entity on the applicable
Payment Date shall, if such Holder shall have so requested at least five
Business Days prior to the related Record Date, be paid to each Holder of record
on the preceding Record Date, by wire transfer to an account specified in
writing by such Holder as of the preceding Record Date or in all other cases
or
if no such instructions have been delivered to the Securities Administrator,
by
check to such Noteholder mailed to such Holder’s address as it appears in the
Note Register in the amount required to be distributed to such Holder on such
Payment Date pursuant to such Holder’s Notes; provided, however, that the
Securities Administrator shall not pay to such Holders any amount required
to be
withheld from a payment to such Holder by the Code.
(f) Net
Interest Shortfalls on the Mortgage Loans in a Loan Group will be allocated
among the holders of each Class of Subordinate Notes and Class X Notes, on
a pro
rata basis, in proportion to the respective amounts of Accrued Note Interest
for
that Payment Date that would have been allocated thereto in the absence of
such
Net Interest Shortfalls for such Payment Date. In addition, the amount of any
Net Interest Shortfalls with respect to the Mortgage Loans in a Loan Group
will
constitute unpaid Accrued Note Interest and will be distributable to holders
of
the related Classes of Notes entitled to such amounts on subsequent Payment
Dates, to the extent of the Available Funds for such Loan Group remaining after
current interest payments. Any such amounts so carried forward will not bear
interest. Any Net Interest Shortfalls will not be offset by a reduction in
the
servicing compensation of the Servicers or the Master Servicer or otherwise,
except to the limited extent with respect to certain Prepayment Interest
Shortfalls.
(g) The
Note
Principal Balance of each Note shall be due and payable in full on the Final
Scheduled Payment Date for such Note as provided in the forms of Note set forth
in Exhibits A-1, A-2 and A-3 to this Indenture. All principal payments on the
Notes shall be made to the Noteholders entitled thereto in accordance with
the
Percentage Interests represented by such Notes. Upon notice to the Securities
Administrator by the Issuing Entity, the Securities Administrator shall notify
the Person in whose name a Note is registered at the close of business on the
Record Date preceding the Final Scheduled Payment Date or other final Payment
Date (including any final Payment Date resulting from any redemption pursuant
to
Section 8.06 hereof). Such notice shall to the extent practicable be mailed
no
later than five Business Days prior to such Final Scheduled Payment Date or
other final Payment Date and shall specify that payment of the principal amount
and any interest due with respect to such Note at the Final Scheduled Payment
Date or other final Payment Date will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for such final payment. No interest shall accrue
on
the Notes on or after the Final Scheduled Payment Date or any such other final
Payment Date.
(h) On
any
Payment Date on which there is an Undercollateralized Group, the priority and
manner of distributions for the Notes described above shall be supplemented
as
follows:
(A) amounts
then on deposit in the Reserve Fund shall be distributed as principal to the
Senior Notes of any Undercollateralized Group on such Payment Date, on a pro
rata basis, to the extent of the Undercollateralized Amount for such
Undercollateralized Group on such Payment Date (provided that, if there are
multiple Undercollateralized Groups on such Payment Date, amounts then on
deposit in the Reserve Fund shall first be allocated to each such
Undercollateralized Group in proportion to the Undercollateralized Amount for
each such Undercollateralization Group on such Payment Date);
(B) any
amounts from Available Funds otherwise distributable as principal on the
Subordinate Notes, as described in Section 3.03(V)(B) of this Indenture, in
reverse order of priority set forth in Section 3.03(V)(B), shall be distributed
(i) first, as principal to the Senior Notes of any Undercollateralized Group,
on
a pro rata basis, to the extent of the remaining Undercollateralized Amount
for
such Undercollateralized Group on such Payment Date after the distribution
in
clause (A) above (provided that, if there are multiple Undercollateralized
Groups on such Payment Date, such amounts from Available Funds shall first
be
allocated to each such Undercollateralized Group in proportion to the remaining
Undercollateralized Amount for each such Undercollateralization Group on such
Payment Date after the distribution in clause (A) above) and (ii) second, to
the
Subordinate Notes in the same manner and priority set forth in Section
3.03(V)(B); and
(C) in
the
event that the Note Principal Balances of the Subordinate Notes have been
reduced to zero prior to such Payment Date, any amounts from Available Funds
related to any Overcollateralized Group for such Payment Date shall be
distributed as principal to the Offered Notes of any Undercollateralized Group,
on a pro rata basis, to the extent of the remaining Undercollateralized Amount
for such Undercollateralized Group on such Payment Date after the distribution
in clause (A) above (provided that, if there are multiple Undercollateralized
Groups on such Payment Date, such amounts from Available Funds shall first
be
allocated to each such Undercollateralized Group in proportion to the remaining
Undercollateralized Amount for each such Undercollateralization Group on such
Payment Date after the distribution in clause (A) above).
If,
on
any Payment Date, (i) the aggregate Note Principal Balance of the Senior Notes
related to a Loan Group has been reduced to zero, (ii) the Note Principal
Balances of the Subordinate Notes have not been reduced to zero, and (iii)
either (a) the weighted average of the Subordinate Percentages of the
Subordinate Certificates on such Payment Date is less than two times the initial
weighted average of the Subordinate Percentages of the Subordinate Notes, or
(b)
the aggregate Scheduled Principal Balance of the Mortgage Loans Delinquent
60
days or more (including for this purpose any such Mortgage Loans in foreclosure
and bankruptcy and Mortgage Loans with respect to which the related Mortgaged
Property has been acquired by the Issuing Entity), averaged over the last six
months, as a percentage of the aggregate Note Principal Balance of the
Subordinate Notes equals or exceeds 50%, then any amounts from Available Funds
related to such retired Senior Notes otherwise distributable in respect of
principal under clauses (ii), (iii), (iv) and (v) of the definition of
Subordinate Optimal Principal Amount on each Class of Subordinate Notes, in
reverse order of payment priority set forth in Section 3.03(V)(B), shall be
deposited into the Reserve Fund for application on future Payment Dates to
make
principal payments on any outstanding Senior Notes related to an
Undercollateralized Group as described in this Section 3.03(h). If any amounts
remain in the Reserve Fund after the Note Principal Balances of all of the
Senior Notes have been reduced to zero, such amounts shall be allocated to
the
Subordinate Notes in the same manner and priorities as set forth in Section
3.03(V)(B) of this Indenture; provided, however, if after making such payments,
the aggregate Note Principal Balance of the Subordinate Notes exceeds the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the related
Due Date, the Note Principal Balances of the Subordinate Notes will be reduced,
on a pro rata basis, by the amount of such excess in reverse order of payment
priority set forth in Section 3.03(V)(B).
Section
3.04 Reserve
Fund. On or before the Closing Date, the Securities Administrator
shall establish a Reserve Fund on behalf of the Holders of the Notes. The
Reserve Fund shall be entitled “Reserve Fund, Xxxxx Fargo Bank, N.A. as
Securities Administrator for the benefit of holders of Bear Xxxxxxx Arm Trust
2007-2, Mortgage-Backed Notes, Series 2007-2”. The Securities Administrator
shall deposit in the Reserve Fund the Available Funds described in Section
3.03(h) that are related to a group of retired Senior Notes and may otherwise
be
distributable in respect of principal on the Subordinate Notes pursuant to
such
Section 3.03(h) on each relevant Payment Date. On each Payment Date,
the Securities Administrator shall remit amounts then on deposit in the Reserve
Fund to the Holders of the Senior Notes of any Undercollateralized Group in
the
manner and priorities set forth in clause (A) of Section 3.03(h) hereof, or
if
no Senior Notes remain outstanding, to the Holders of the Subordinate Notes
in
the manner and priorities set forth at the end of such Section
3.03(h). Amounts on deposit in the Reserve Fund shall remain
uninvested.
Section
3.05 Protection
of Trust Estate. (a) The Issuing Entity shall from
time to time prepare, 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
necessary or advisable to:
(i) maintain
or preserve the lien and security interest (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof;
(ii) perfect,
publish notice of or protect the validity of any Grant made or to be made by
this Indenture;
(iii) cause
the Issuing Entity or the
Securities Administrator on behalf of the Indenture Trustee to enforce any
of
the rights to the Mortgage Loans; or
(iv) preserve
and defend title to the Trust Estate and the rights of the Indenture Trustee
and
the Noteholders in such Trust Estate against the claims of all persons and
parties.
(b) Except
as
otherwise provided in this Indenture, the Indenture Trustee shall not remove
or
permit the Custodians to 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 at the date of the most recent Opinion of
Counsel delivered pursuant to Section 3.05 hereof (or from the jurisdiction
in
which it was held as described in the Opinion of Counsel delivered on the
Closing Date pursuant to Section 3.05(a) hereof, if no Opinion of Counsel has
yet been delivered pursuant to Section 3.05(b) hereof), 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.
The
Issuing Entity hereby designates
the Securities Administrator its agent and attorney-in-fact to sign any
financing statement, continuation statement or other instrument required to
be
signed pursuant to this Section 3.05 upon the Issuing Entity’s preparation
thereof and delivery to the Securities Administrator.
Section
3.06 Opinions
as to Trust Estate. (a) On the Closing Date, the
Issuing Entity shall furnish to the Indenture Trustee and the Owner Trustee
an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the lien and first priority security interest in the Collateral and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and first priority
security interest effective.
(b) On
or
before December 31st in each calendar year, beginning in 2007, the Issuing
Entity shall furnish to the Indenture Trustee an Opinion of Counsel at the
expense of the Issuing Entity either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
rerecording 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 in the Collateral 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 in the Collateral until December
31
in the following calendar year.
Section
3.07 Performance
of Obligations. (a) The Issuing Entity shall
punctually perform and observe all of its obligations and agreements contained
in this Indenture, the Basic Documents and in the instruments and agreements
included in the Trust Estate.
(b) The
Issuing Entity may contract with other Persons to assist it in performing its
duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer’s Certificate of the Issuing
Entity shall be deemed to be action taken by the Issuing Entity.
(c) The
Issuing Entity shall not take any action or permit any action to be taken by
others which would release any Person from any of such Person’s covenants or
obligations under any of the documents relating to the Mortgage Loans or under
any instrument included in the Trust Estate, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Master Servicer is
expressly permitted to take in the Xxxxx Fargo Servicing Agreement.
(d) The
Issuing Entity may retain an administrator and may enter into contracts with
other Persons for the performance of the Issuing Entity’s obligations hereunder,
and performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuing Entity.
Section
3.08 Negative
Covenants. So long as any Notes are Outstanding or the
Majority Certificateholder owns 100% of the Securities, the Issuing Entity
shall
not:
(i) except
as
expressly permitted by this Indenture, sell, transfer, exchange or otherwise
dispose of the Trust Estate;
(ii) claim
any
credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments
under the Code) or assert any claim against any present or former Noteholder,
by
reason of the payment of the taxes levied or assessed upon any part of the
Trust
Estate;
(iii) (A)
permit the validity or effectiveness of this Indenture to be impaired, or permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the Trust Estate
or any part thereof or any interest therein or the proceeds thereof or (C)
permit the lien of this Indenture not to constitute a valid first priority
security interest in the Trust Estate; or
(iv) waive
or
impair, or fail to assert rights under, the Mortgage Loans, or impair or cause
to be impaired the Issuing Entity’s interest in the Mortgage Loans, the Mortgage
Loan Purchase Agreement or in any Basic Document, if any such action would
materially and adversely affect the interests of the Noteholders.
Section
3.09 Annual
Statement as to Compliance. The Issuing Entity will deliver to
the Indenture Trustee, by March 1 of each year commencing with the calendar
year
2008, an Officer’s Certificate stating, as to the Authorized Officer signing
such Officer’s Certificate, that:
(i) a
review
of the activities of the Issuing Entity during the previous calendar year and
of
its performance under this Indenture and the Trust Agreement has been made
under
such Authorized Officer’s supervision; and
(ii) to
the
best of such Authorized Officer’s knowledge, based on such review, the Issuing
Entity has complied with all conditions and covenants under this Indenture
and
the provisions of the Trust Agreement throughout such year, or, if there has
been a default in its compliance with any such condition or covenant, specifying
each such default known to such Authorized Officer and the nature and status
thereof.
Section
3.10 [Reserved].
Section
3.11 Representations
and Warranties Concerning the Mortgage Loans. The Indenture
Trustee, as pledgee of the Mortgage Loans, has the benefit of the
representations and warranties made by the Mortgage Loan Seller in the Mortgage
Loan Purchase Agreement concerning the Mortgage Loan Seller and the
representations and warranties made by the Underlying Sellers under the related
Sale Agreements, and the Mortgage Loans to the same extent as though such
representations and warranties were made directly to the Indenture Trustee.
If a
Responsible Officer of the Indenture Trustee has actual knowledge of any breach
of any representation or warranty made by the Mortgage Loan Seller in the
Mortgage Loan Purchase Agreement or by the Underlying Sellers under the related
Sale Agreements, the Indenture Trustee shall promptly notify the Mortgage Loan
Seller or the related Underlying Seller, as applicable, to cure such defect
or
repurchase or substitute for the related Mortgage Loan. Alesco Financial Inc.
will guarantee the Mortgage Loan Seller’s obligations to repurchase Mortgage
Loans as to which there has been a breach.
Section
3.12 Investment
Company Act. The Issuing Entity shall not become an “investment
company” or be under the “control” of an “investment company” as such terms are
defined in the Investment Company Act of 1940, as amended (or any successor
or
amendatory statute), and the rules and regulations thereunder (taking into
account not only the general definition of the term “investment company” but
also any available exceptions to such general definition); provided, however,
that the Issuing Entity shall be in compliance with this Section 3.11 if it
shall have obtained an order exempting it from regulation as an “investment
company” so long as it is in compliance with the conditions imposed in such
order.
Section
3.13 Issuing
Entity May Consolidate, etc. (a) The Issuing Entity
shall not consolidate or merge with or into any other Person,
unless:
(i) the
Person (if other than the Issuing Entity) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws
of the United States of America or any state or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee and the Securities Administrator, in form
reasonably satisfactory to the Indenture Trustee and the Securities
Administrator, the due and punctual payment of the principal of and interest
on
all Notes, and all amounts payable to the Indenture Trustee and the Securities
Administrator, the payment to the Securities Administrator of all amounts due
to
the Certificateholders, and the performance or observance of every agreement
and
covenant of this Indenture on the part of the Issuing Entity to be performed
or
observed, all as provided herein;
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) each
of
the Rating Agencies shall have notified the Issuing Entity that such transaction
shall not cause the rating of the Notes to be reduced, qualified, suspended
or
withdrawn or to be considered by either Rating Agencies to be below investment
grade;
(iv) the
Issuing Entity shall have received an Opinion of Counsel (and shall have
delivered a copy thereof to the Indenture Trustee and the Securities
Administrator) to the effect that such transaction will not (A) result in a
“significant modification” of the Class I-A-1, Class I-A-2, Class II-A-1, Class
II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1 and Class IV-A-2 Notes or
any
other classes of Notes with respect to which a “will be debt” opinion has been
rendered by nationally recognized tax counsel and furnished to the Securities
Administrator under Treasury Regulation Section 1.1001-3, or adversely affect
the indebtedness status of such Notes and (B) cause the Trust to be subject
to
an entity level tax for federal income tax purposes;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuing Entity shall have delivered to the Indenture Trustee and the Securities
Administrator an Officer’s Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for or
relating to such transaction have been complied with (including any filing
required by the Exchange Act), and that such supplemental indenture is
enforceable.
(b) The
Issuing Entity shall not convey or transfer any of its properties or assets,
including those included in the Trust Estate, to any Person,
unless:
(1) such
conveyance or transfer is made in connection with a REMIC Conversion;
or
(2) the
following conditions are satisfied:
(i) the
Person that acquires by conveyance or transfer the properties and assets of
the
Issuing Entity, the conveyance or transfer of which is hereby restricted, shall
(A) be a United States citizen or a Person organized and existing under the
laws
of the United States of America or any state thereof, (B) expressly assume,
by
an indenture supplemental hereto, executed and delivered to the Indenture
Trustee and the Securities Administrator, in form satisfactory to the Indenture
Trustee and the Securities Administrator, the due and punctual payment of the
principal of and interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuing Entity
to be performed or observed, all as provided herein, (C) expressly agree by
means of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of the
Holders of the Notes, (D) unless otherwise provided in such supplemental
indenture, expressly agree to indemnify, defend and hold harmless the Issuing
Entity and the Indenture Trustee and the Securities Administrator against and
from any loss, liability or expense arising under or related to this Indenture
and the Notes and (E) expressly agree by means of such supplemental indenture
that such Person (or if a group of Persons, then one specified Person) shall
make all filings with the Commission (and any other appropriate Person) required
by the Exchange Act in connection with the Notes;
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) each
of
the Rating Agencies shall have notified the Issuing Entity that such transaction
shall not cause the ratings of the Notes to be reduced, qualified, suspended
or
withdrawn;
(iv) the
Issuing Entity shall have received an Opinion of Counsel (and shall have
delivered a copy thereof to the Indenture Trustee and the Securities
Administrator) to the effect that such transaction will not (A) result in a
“significant modification” of the Class I-A-1, Class I-A-2, Class II-A-1, Class
II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1 and Class IV-A-2 Notes or
any
other Classes of Notes with respect to which a “will be debt” opinion has been
rendered by nationally recognized tax counsel and furnished to the Securities
Administrator under Treasury Regulation Section 1.1001-3, or adversely affect
the indebtedness status of such Notes, and (B) cause the Trust to be subject
to
an entity level tax for federal income tax purposes;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuing Entity shall have delivered to the Indenture Trustee and the Securities
Administrator an Officer’s Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by
the Exchange Act).
Section
3.14 Successor
or Transferee. (a) Upon any consolidation or merger of
the Issuing Entity in accordance with Section 3.13(a), the Person formed by
or
surviving such consolidation or merger (if other than the Issuing Entity) shall,
following the Issuing Entity’s satisfaction of all of the conditions precedent
set forth therein with respect thereto, succeed to, and be substituted for,
and
may exercise every right and power of, the Issuing Entity under this Indenture
with the same effect as if such Person had been named as the Issuing Entity
herein.
(b) Upon
a
conveyance or transfer of all the assets and properties of the Issuing Entity
pursuant to Section 3.13(b), the Issuing Entity, following its satisfaction
of
all of the conditions precedent set forth herein with respect thereto, will
be
released from every covenant and agreement of this Indenture to be observed
or
performed on the part of the Issuing Entity with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee and
the
Securities Administrator of such conveyance or transfer.
Section
3.15 No
Other Business. The Issuing Entity shall not engage in any
business other than as set forth with respect thereto in the Trust Agreement
and
other than financing, purchasing, owning and selling and managing the Mortgage
Loans and the issuance of the Certificates and consummation of a REMIC
Conversion in the manner contemplated by this Indenture and the Basic Documents
and all activities incidental thereto.
Section
3.16 No
Borrowing. The Issuing Entity shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes under this Indenture.
Section
3.17 Guarantees,
Loans, Monthly Advances and Other Liabilities. Except as
contemplated by this Indenture or the Basic Documents, the Issuing Entity shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another’s payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase
or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
Section
3.18 Capital
Expenditures. The Issuing Entity shall not make any expenditure
(by long-term or operating lease or otherwise) for capital assets (either realty
or personalty).
Section
3.19 Determination
of Note Index.
Semi-annually,
on each Interest Determination Date beginning on the Interest Determination
Date
in November 2010, the Securities Administrator will determine the Six-Month
LIBOR Note Index for the Class I-A-1 Notes and Class I-A-2 Notes for the related
Payment Date. Annually, on each Interest Determination Date beginning on the
Interest Determination Date in November 2011 in the case of the Class II-A-1
Notes and Class II-A-2 Notes and beginning in November 2013 in the case of
the
Class III-A-1 Notes and Class III-A-2 Notes, the Securities Administrator will
determine the One-Year LIBOR Note Index for the related Payment
Date. Annually, on each Interest Determination Date beginning on the
Interest Determination Date in November 2016, the Securities Administrator
will
determine the One-Year U.S. Treasury Note Index for the Class IV-A-1 Notes
and
Class IV-A-2 Notes for the related Payment Date.
The
establishment of the Six-Month LIBOR Note Index, One-Year LIBOR Note Index
and
One-Year U.S. Treasury Note Index on each Interest Determination Date by the
Securities Administrator and the Securities Administrator’s calculation of the
rate of interest applicable to the Notes for the related Interest Accrual Period
shall (in the absence of manifest error) be final and binding.
Section
3.20 Restricted
Payments. The Issuing Entity 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 Issuing Entity
or
otherwise with respect to any ownership or equity interest or security in or
of
the Issuing Entity, (ii) redeem, purchase, retire or otherwise acquire for
value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuing Entity may make, or cause to be made, (x) distributions and payments
to the Owner Trustee, the Indenture Trustee, the Securities Administrator,
the
Master Servicer, the Servicers, the Noteholders and the Certificateholders
as
contemplated by, and to the extent funds are available for such purpose under
this Indenture and the Basic Documents and (y) payments to the Master Servicer
pursuant to the Sale and Servicing Agreement and the Servicer pursuant to the
terms of the Xxxxx Fargo Servicing Agreement. The Issuing Entity will not,
directly or indirectly, make payments to or distributions from the Payment
Account except in accordance with this Indenture and the Basic
Documents.
Section
3.21 Notice
of Events of Default. The Issuing Entity shall give the Indenture
Trustee, the Securities Administrator and each Rating Agencies prompt written
notice of each Event of Default hereunder.
Section
3.22 Further
Instruments and Acts. Upon request of the Indenture Trustee, the
Issuing Entity will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section
3.23 Certain
Representations Regarding the Trust Estate.
(a) With
respect to that portion of the Collateral described in clauses (a) through
(c)
of the definition of Trust Estate, the Issuing Entity represents to the
Indenture Trustee that:
(i) This
Indenture creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Indenture Trustee, which
security interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from the Issuing Entity.
(ii) The
Collateral constitutes “deposit accounts,” “instruments” or “certificated
securities,” as applicable within the meaning of the applicable
UCC.
(iii) The
Issuing Entity owns and has good and marketable title to the Collateral, free
and clear of any lien, claim or encumbrance of any Person.
(iv) The
Issuing Entity has caused or will have caused, within ten days of the Closing
Date, the filing of all appropriate financing statements in the proper filing
office in the appropriate jurisdictions under applicable law in order to perfect
the security interest in the Collateral granted to the Indenture Trustee
hereunder.
(v) Other
than the security interest granted to the Indenture Trustee pursuant to this
Indenture, or the conveyances that the Issuing Entity would be required to
make
following a TMP Trigger Event, the Issuing Entity has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Collateral. The Issuing Entity has not authorized the filing of and
is not aware of any financing statements against the Issuing Entity that include
a description of collateral covering the Collateral other than any financing
statement relating to the security interest granted to the Indenture Trustee
hereunder or that has been terminated.
(vi) The
Collateral is not in the name of any Person other than the Issuing Entity or
the
Indenture Trustee. The Issuing Entity has in its possession all
original copies of the security certificates that constitute or evidence the
Collateral. The security certificates that constitute or evidence the
Collateral do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Indenture
Trustee. The Issuing Entity has not consented to the bank maintaining
the Collateral to comply with instructions of any Person other than the
Indenture Trustee. All financing statements filed or to be filed against the
Issuing Entity in favor of the Indenture Trustee in connection herewith
describing the Collateral contain a statement to the following effect: “A
purchase of or security interest in any collateral described in this financing
statement will violate the rights of the Secured Party.”
(vii) The
foregoing representations may not be waived and shall survive the issuance
of
the Notes.
Section
3.24 Allocation
of Realized Losses. (a) On or prior to each Payment
Date, the Master Servicer shall determine, based solely on information provided
to it by the Servicer the amount of any Realized Loss in respect of each
Mortgage Loan that occurred during the immediately preceding calendar
month.
(b) With
respect to any Notes (other than the Class X Notes) on any Payment Date, the
principal portion of each Realized Loss on a Mortgage Loan shall be allocated
as
follows:
first,
to the Class B-6 Notes until the Note Principal Balance thereof has been reduced
to zero;
second,
to the Class B-5 Notes until the Note Principal Balance thereof has been reduced
to zero;
third,
to the Class B-4 Notes until the Note Principal Balance thereof has been reduced
to zero;
fourth,
to the Class B-3 Notes until the Note Principal Balance thereof has been reduced
to zero;
fifth,
to the Class B-2 Notes until the Note Principal Balance thereof has been reduced
to zero;
sixth,
to the Class B-1 Notes until the Note Principal Balance thereof has been reduced
to zero;
seventh,
to the extent that such Realized Losses related to the Group I Mortgage Loans
exceed amounts on deposit in the Reserve Fund, to the Class I-A-2 Notes, and
then, to the Class I-A-1 Notes, in each case until its Note Principal Balance
has been reduced to zero; to the extent that such Realized Losses related to
the
Group II Mortgage Loans exceed amounts on deposit in the Reserve Fund, to the
Class II-A-2 Notes, and then, to the Class II-A-1 Notes, in each case until
its
Note Principal Balance has been reduced to zero; to the extent that such
Realized Losses related to the Group III Mortgage Loans exceed amounts on
deposit in the Reserve Fund, to the Class III-A-2 Notes, and then, to the Class
III-A-1 Notes, in each case until its Note Principal Balance has been reduced
to
zero; and to the extent that such Realized Losses related to the Group IV
Mortgage Loans exceed amounts on deposit in the Reserve Fund, to the Class
IV-A-2 Notes, and then, to the Class IV-A-1 Notes, in each case until its Note
Principal Balance has been reduced to zero.
(c) Notwithstanding
the foregoing clause (b), no such allocation of any Realized Loss shall be
made
on a Payment Date to any Class or Classes of Senior Notes to the extent that
such allocation would result in the reduction of the aggregate Note Principal
Balance of all of the related Classes of Notes as of such Payment Date, after
giving effect to all distributions and prior allocations of Realized Losses
on
such date, to an amount less than the aggregate Scheduled Principal Balance
of
the related Mortgage Loans as of the related Due Date (such limitation, the
“Loss Allocation Limitation”).
(d) The
principal portion of any Realized Losses allocated to a Class of Notes shall
be
allocated among the Notes of such Class (other than the Class X Notes) in
proportion to their respective Note Principal Balances. Any allocation of
Realized Losses shall be accomplished by reducing the Note Principal Balance
of
the Notes on the related Payment Date.
(e) Realized
Losses shall be allocated on the Payment Date in the month following the month
in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Payment
Date.
(f) On
each Payment Date, the Securities
Administrator shall determine the Subordinate Writedown Amount. Any such
Subordinate Writedown Amount shall effect a corresponding reduction in the
Note
Principal Balance of (i) with respect to the Subordinate Writedown Amount,
if
prior to the Cross-Over Date, the Class B-6, Class B-5, Class B-4, Class B-3,
Class B-2 and Class B-1 Notes, in that order, and (ii) from and after the
Cross-Over Date, to the Senior Notes, in accordance with priorities set forth
in
clause (b) above, in each case, on such Payment Date after giving effect to
distributions made on such Payment Date.
(g) The
interest portion of any Realized Losses with respect to the Mortgage Loans
occurring on or prior to the Cross-Over Date will be borne sequentially to
the
Class B-6, Class B-5, Class B-4, Class B-3, Class B-2, Class B-1 and Class
X
Notes, in that order.
(i) In
addition, in the event that the Securities Administrator receives any Subsequent
Recoveries from the Servicer or Master Servicer, the Securities Administrator
shall deposit such funds into the Payment Account pursuant to Section
4.02 of the Sale and Servicing Agreement. If, after taking into
account such Subsequent Recoveries, the amount of a Realized Loss is reduced,
the amount of such Subsequent Recoveries will be applied to increase the Note
Principal Balance of the Notes with the highest payment priority to which
Realized Losses have been allocated, but not by more than the amount of Realized
Losses previously allocated to that Class or Classes of Notes pursuant to this
Section 3.24. The amount of any Subsequent Recoveries following the
application set forth in the immediately preceding sentence will be applied
to
sequentially increase the Note Principal Balance of the Notes, beginning with
the Class of Notes with the next highest payment priority, up to the amount
of
such Realized Losses previously allocated to such Class or Classes of Notes
pursuant to this Section 3.24. Holders of such Notes will not be
entitled to any payments in respect of Accrued Note Interest on the amount
of
such increases for any Interest Accrual Period preceding the Payment Date on
which such increase occurs. Any such increases shall be applied to
the Note Principal Balance of the Notes of such Class in accordance with its
respective Percentage Interest.
ARTICLE
IV
THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
Section
4.01 The
Notes. Each Class of Class I-A-1, Class I-A-2, Class II-A-1,
Class II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1 and Class IV-A-2 Notes
shall be registered in the name of a nominee designated by the Depository.
Beneficial Owners will hold interests in the Class I-A-1, Class I-A-2, Class
II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1 and Class
IV-A-2 Notes through the book-entry facilities of the Depository in minimum
initial Note Principal Balances of $25,000 and integral multiples of $1 in
excess thereof. Registered Holders will hold interests in the Class X
Notes in physical form in minimum initial Notional Amount of $25,000 and
integral multiples of $1 in excess thereof. Registered Holders will
hold interests in the Class X, Class B-1, Class B-2, Class B-3, Class B-4,
Class
B-5 and Class B-6 Notes in physical form in minimum initial Note Principal
Balances of $25,000 and integral multiples of $1 in excess thereof.
The
Indenture Trustee and Securities Administrator may for all purposes (including
the making of payments due on the Notes) deal with the Depository as the
authorized representative of the Beneficial Owners with respect to the Notes
for
the purposes of exercising the rights of Holders of the Notes hereunder. Except
as provided in the next succeeding paragraph of this Section 4.01, the rights
of
Beneficial Owners with respect to the Notes shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except as provided in Section 4.08
hereof, Beneficial Owners shall not be entitled to definitive certificates
for
the Notes as to which they are the Beneficial Owners. Requests and directions
from, and votes of, the Depository as Holder of the Notes shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners.
The
Securities Administrator may establish a reasonable record date in connection
with solicitations of consents from or voting by Noteholders and give notice
to
the Depository of such record date. Without the consent of the Issuing Entity
and the Securities Administrator, no Note may be transferred by the Depository
except to a successor Xxxxxxxxxx that agrees to hold such Note for the account
of the Beneficial Owners.
In
the
event the Depository Trust Company resigns or is removed as Depository, the
Depositor may appoint a successor Depository. If no successor
Depository has been appointed within 30 days of the effective date of the
Depository’s resignation or removal, each Beneficial Owner shall be entitled to
certificates representing the Notes it beneficially owns in the manner
prescribed in Section 4.08.
The
Notes
shall, on original issue, be executed on behalf of the Issuing Entity by the
Owner Trustee, not in its individual capacity but solely as Owner Trustee,
authenticated by the Securities Administrator and delivered by the Securities
Administrator to or upon the order of the Issuing Entity.
Section
4.02 Registration
of and Limitations on Transfer and Exchange of Notes; Appointment of Securities
Administrator to Act as Note Registrar and Certificate
Registrar. The Issuing Entity shall cause to be kept at the
Corporate Trust Office of the Securities Administrator a Note Register in which,
subject to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Notes and of transfers
and
exchanges of Notes as herein provided.
Subject
to the restrictions and limitations set forth below, upon surrender for
registration of transfer of any Note at the Corporate Trust Office of the
Securities Administrator, the Issuing Entity shall execute and the Securities
Administrator shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes in authorized initial Note
Principal Balances evidencing the same Class and aggregate Percentage
Interests.
No
transfer, sale, pledge or other disposition of any Privately Offered Note or
interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements
of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities
laws. If a transfer of any Privately Offered Note is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or a transfer thereof to the Depositor or one of its
Affiliates), then the Securities Administrator shall refuse to register such
transfer unless (i) it receives (and upon receipt, may conclusively rely upon)
a
certificate substantially in the form attached as Exhibit C hereto (provided,
however, that in the case of the Book-Entry Notes, the Noteholder and the
Noteholder’s prospective transferee will be deemed to have made the
representations set forth in such certification) or (ii) (a) it receives a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Securities Administrator and the Indenture Trustee that such transfer
may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the Securities Act and any applicable state securities
laws
or is being made pursuant to the Securities Act and any applicable state
securities laws, which Opinion of Counsel shall not be an expense of the
Indenture Trustee, the Owner Trustee, the Depositor, the Seller, the Master
Servicer, any Servicer or the Securities Administrator and (b) the transferee
executes a representation letter, substantially in the form of Exhibit D
attached hereto, and transferor executes a representation letter, substantially
in the form of Exhibit E hereto, each acceptable to and in form and substance
satisfactory to the Securities Administrator and the Indenture Trustee
certifying the facts surrounding such transfer, which representation letters
shall not be an expense of the Indenture Trustee, the Owner Trustee, the
Depositor, the Seller, the Master Servicer, any Servicer or the Securities
Administrator. None of the Issuing Entity, the Depositor, the
Indenture Trustee or the Securities Administrator is obligated to register
or
qualify any Notes under the Securities Act or any other securities law or to
take any action not otherwise required under this Indenture to permit the
transfer of any Note or interest therein without registration or
qualification. Any Noteholder desiring to effect a transfer of Notes
or interests therein shall, and does hereby agree to, indemnify the Issuing
Entity, the Depositor, the Owner Trustee, the Indenture Trustee and the
Securities Administrator against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state laws
or in accordance with any restrictions on transfer set forth in this
Indenture. Notwithstanding the foregoing, the provisions of this
paragraph shall not apply to the initial transfer of the Notes by the Depositor
or any Affiliate thereof.
No
transfer, sale, pledge or other disposition of any Privately Offered Notes
shall
be made, and the Securities Administrator shall refuse to register any such
transfer, sale, pledge or other disposition, unless and until (1) the proposed
transferee shall have delivered to the Owner Trustee, the Securities
Administrator and the Indenture Trustee (I) in the case of a transfer, sale,
pledge or disposition, excluding a pledge to secure indebtedness or
a transfer, sale, pledge or disposition pursuant to any
repurchase agreement (but not excluding a disposition following a default
under
such indebtedness or repurchase transaction), (i) a certificate substantially
in
the form of Exhibit F hereto certifying that,
following such transfer, sale, pledge or disposition, the
proposed transferee will be either (A) a Single Owner or (B) a Proportionate
Owner and (ii) an opinion of nationally recognized tax counsel (which opinion
shall not be an expense of the Trust), addressed to the Securities
Administrator, the Owner Trustee and the Indenture Trustee, to the effect
that such transfer, sale, pledge or disposition will not cause the
Trust to be (x) treated as an association taxable as a corporation for federal
income tax purposes or (y) taxable as a “publicly traded partnership” as defined
in Treasury Regulation Section 1.7704-1 for federal income tax purposes,
(II) an
opinion of nationally recognized tax counsel addressed to the Securities
Administrator, the Owner Trustee and the Indenture Trustee (which opinion
shall
not be an expense of the Trust) to the effect that such transfer, sale, pledge
or disposition will not cause the Trust to be (x) treated as an association
taxable as a corporation for federal income tax purposes, (y) treated as
a
taxable mortgage pool for federal income tax purposes or (z) taxable as a
“publicly traded partnership” as defined in Treasury Regulation Section 1.7704-1
for federal income tax purposes, or (III) an opinion of nationally recognized
tax counsel addressed to the Securities Administrator, the Owner Trustee
and the
Indenture Trustee (which opinion shall not be an expense of the Trust) to
the
effect that such transfer, sale, pledge or disposition will constitute
a TMP Trigger Event, and (2) in the case of any transfer, sale, pledge or
other
disposition with respect to which the proposed transferee delivers the opinion
described in the immediately preceding clause (III), the REMIC Conversion
associated with such TMP Trigger Event (and all conditions precedent thereto,
including the contribution to the Issuing Entity or provisions for payment
to
various parties of certain additional funds by such proposed transferor or
proposed transferee pursuant to Article XI of the Indenture) has been
consummated. The provisions of this paragraph shall not apply to the initial
transfer of the Privately Offered Notes to the Depositor (or an affiliate
thereof).
Subject
to the foregoing and Section 4.08, Notes may be exchanged for other Notes of
like tenor and in authorized initial Note Principal Balances evidencing the
same
Class and aggregate Percentage Interests upon surrender of the Notes to be
exchanged at the Corporate Trust Office of the Securities Administrator.
Whenever any Notes are so surrendered for exchange, the Issuing Entity shall
execute and the Securities Administrator shall authenticate and deliver the
Notes which the Noteholder making the exchange such Noteholder is entitled
to
receive. Each Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Securities Administrator) be duly endorsed
by, or be accompanied by a written instrument of transfer in form reasonably
satisfactory to the Securities Administrator duly executed by the Holder thereof
or his attorney duly authorized in writing with such signature guaranteed by
a
commercial bank or trust company located or having a correspondent located
in
the city of New York. Notes delivered upon any such transfer or exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Notes surrendered.
Subject
to the foregoing and Section 4.08, in connection with a REMIC Conversion, each
Noteholder shall surrender all of its Notes to the Securities Administrator
in
exchange for REMIC Class A Notes pursuant to Section 8.06 of like tenor and
in
authorized initial note principal balances evidencing the same class designation
and aggregate percentage interests upon surrender of the Notes to be exchanged
at the Corporate Trust Office of the Securities Administrator. Whenever any
Notes are so surrendered for exchange, the Issuing Entity shall execute and
the
Securities Administrator shall authenticate and deliver the REMIC Class A Notes
which the Noteholder making the exchange is entitled to receive. Each Note
presented or surrendered for registration of transfer or exchange shall (if
so
required by the Securities Administrator) be duly endorsed by, or be accompanied
by a written instrument of transfer in form reasonably satisfactory to the
Securities Administrator, the Holder thereof or his attorney duly authorized
in
writing with such signature guaranteed by a commercial bank or trust company
located or having a correspondent located in the city of New York. Notes
delivered upon any such transfer or exchange will evidence the same obligations
in substance, and will be entitled to the same rights and privileges in
substance, as the Notes surrendered.
No
service charge shall be made for any registration of transfer or exchange of
Notes, but the Securities Administrator shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
The
Issuing Entity hereby appoints the Securities Administrator as (i) certificate
registrar to keep at its Corporate Trust Office a Certificate Register pursuant
to Section 3.08 of the Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for
the
registration of Certificates and of transfers and exchanges thereof pursuant
to
Section 3.03 of the Trust Agreement and (ii) Note Registrar under this
Indenture. The Securities Administrator hereby accepts such
appointments.
No
Person
shall become a Holder of Privately Offered Notes until it establishes its
non-foreign status by submitting to the Securities Administrator an IRS Form
W-9
and the Certificate of Non-Foreign Status set forth in Exhibit G
hereto.
Section
4.03 Mutilated,
Destroyed, Lost or Stolen Notes. If (i) any mutilated Note is
surrendered to the Securities Administrator, or the Securities Administrator
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, and (ii) there is delivered to the Securities Administrator such security
or indemnity as may be required by it to hold the Issuing Entity, the Indenture
Trustee and the Securities Administrator harmless, then, in the absence of
notice to the Issuing Entity or the Securities Administrator that such Note
has
been acquired by a bona fide purchaser, and provided that the requirements
of
Section 8-405 of the UCC are met, the Issuing Entity shall execute, and upon
its
request the Securities Administrator shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note; provided, however, that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become or within seven days shall
be
due and payable, instead of issuing a replacement Note, the Issuing Entity
may
pay such destroyed, lost or stolen Note when so due or payable without surrender
thereof. If, after the delivery of such replacement Note or payment
of a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuing
Entity and the Securities Administrator shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered
or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred
by
the Issuing Entity, the Indenture Trustee or the Securities Administrator in
connection therewith.
Upon
the
issuance of any replacement Note under this Section 4.03, the Issuing Entity
may
require the payment by the Holder of such Note of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in relation thereto and
any
other reasonable expenses (including the fees and expenses of the Securities
Administrator) connected therewith.
Every
replacement Note issued pursuant to this Section 4.03 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuing Entity, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by
anyone, and shall be entitled to all the benefits of this Indenture equally
and
proportionately with any and all other Notes duly issued hereunder.
The
provisions of this Section 4.03 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
4.04 Persons
Deemed Owners. Prior to due presentment for registration of
transfer of any Note, the Issuing Entity, the Indenture Trustee, the Securities
Administrator and any agent of the Issuing Entity or the Securities
Administrator may treat the Person in whose name any Note is registered (as
of
the day of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Issuing Entity, the Indenture Trustee, the Securities Administrator or any
agent
of the Issuing Entity, the Securities Administrator or the Indenture Trustee
shall be affected by notice to the contrary.
Section
4.05 Cancellation. All
Notes surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Securities Administrator,
be
delivered to the Securities Administrator and shall be promptly cancelled by
the
Securities Administrator. The Issuing Entity may at any time deliver to the
Securities Administrator for cancellation any Notes previously authenticated
and
delivered hereunder which the Issuing Entity may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly cancelled by the
Securities Administrator. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 4.05, except as
expressly permitted by this Indenture. All cancelled Notes may be held or
disposed of by the Securities Administrator in accordance with its standard
retention or disposal policy as in effect at the time unless the Issuing Entity
shall direct by an Issuer Request that they be destroyed or returned to it;
provided, however, that such Issuer Request is timely and the Notes have not
been previously disposed of by the Securities Administrator.
Section
4.06 Book-Entry
Notes. The Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2,
Class III-A-1, Class III-A-2, Class IV-A-1 and Class IV-A-2 Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the initial
Depository, by, or on behalf of, the Issuing Entity. The Notes shall initially
be registered on the Note Register in the name of Cede & Co., the nominee of
the initial Depository, and no Beneficial Owner will receive a Definitive Note
representing such Beneficial Owner’s interest in such Note, except as provided
in Section 4.08. With respect to such Notes, unless and until definitive, fully
registered Notes (the “Definitive Notes”) have been issued to Beneficial Owners
pursuant to Section 4.08:
(i) the
provisions of this Section 4.06 shall be in full force and effect;
(ii) the
Indenture Trustee and the Securities Administrator shall be entitled to deal
with the Depository for all purposes of this Indenture (including the payment
of
principal of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole holder of the Notes, and shall have no
obligation to the Beneficial Owners of the Notes;
(iii) to
the
extent that the provisions of this Section 4.06 conflict with any other
provisions of this Indenture, the provisions of this Section 4.06 shall
control;
(iv) the
rights of Beneficial Owners shall be exercised only through the Depository
and
shall be limited to those established by law and agreements between such Owners
of Notes and the Depository and/or the Depository Participants. Unless and
until
Definitive Notes are issued pursuant to Section 4.08, the initial Depository
will make book-entry transfers among the Depository Participants and receive
and
transmit payments of principal of and interest on the Notes to such Depository
Participants; and
(v) whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders of Notes evidencing a specified percentage of the
Note
Principal Balances of the Notes, the Depository shall be deemed to represent
such percentage with respect to the Notes only to the extent that it has
received instructions to such effect from Beneficial Owners and/or Depository
Participants owning or representing, respectively, such required percentage
of
the beneficial interest in the Notes and has delivered such instructions to
the
Securities Administrator and the Indenture Trustee.
None
of
the Depositor, the Issuing Entity, the Master Servicer, the Seller, the
Securities Administrator, the Indenture Trustee and the Owner Trustee shall
have
any liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in the Book-Entry Notes or for
maintaining, supervising or reviewing any records relating to beneficial
ownership interests or transfers thereof.
The
Class
X, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Notes
will be registered in full definitive form.
Section
4.07 Notices
to Depository. Whenever a notice or other communication to the
Note Holders is required under this Indenture, unless and until Definitive
Notes
shall have been issued to Beneficial Owners pursuant to Section 4.08, the
Indenture Trustee or Securities Administrator, as applicable, shall give all
such notices and communications specified herein to be given to Holders of
the
Notes to the Depository, and shall have no obligation to the Beneficial
Owners.
Section
4.08 Definitive
Notes. If (i) the Depositor advises the Securities Administrator
in writing that the Depository is no longer willing or able to properly
discharge its responsibilities with respect to the Book-Entry Notes and the
Depositor is unable to locate a qualified successor within 30 days or (ii)
the
Depositor, at its option (with the consent of the Securities Administrator,
such
consent not to be unreasonably withheld) elects to terminate the book-entry
system through the Depository, then the Securities Administrator shall request
that the Depository notify all Beneficial Owners of the occurrence of any such
event and of the availability of Definitive Notes to Beneficial Owners
requesting the same. Upon surrender to the Securities Administrator
of the typewritten Notes representing the Book-Entry Notes by the Depository,
accompanied by registration instructions, the Issuing Entity shall execute
and
the Securities Administrator shall authenticate the Definitive Notes in
accordance with the instructions of the Depository. None of the
Issuing Entity, the Securities Administrator shall be liable for any delay
in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of
Definitive Notes, the Securities Administrator shall recognize the Holders
of
the Definitive Notes as Noteholders.
In
addition, if an Event of Default has occurred and is continuing, each Note
Owner
materially adversely affected thereby may at its option request a Definitive
Note evidencing such Noteholder's interest in the related Class of
Notes. In order to make such request, such Noteholder shall, subject
to the rules and procedures of the Depository, provide the Depository or the
related Depository Participant with directions for the Securities Administrator
to exchange or cause the exchange of the Noteholder's interest in such Class
of
Notes for an equivalent interest in fully registered definitive
form. Upon receipt by the Securities Administrator of instructions
from the Depository directing the Securities Administrator to effect such
exchange (such instructions to contain information regarding the Class of Notes
and the Note Principal Balance being exchanged, the Depository Participant
account to be debited with the decrease, the registered holder of and delivery
instructions for the Definitive Note, and any other information reasonably
required by the Securities Administrator), (i) the Securities Administrator
shall instruct the Depository to reduce the related Depository Participant's
account by the aggregate Note Principal Balance of the Definitive Note, (ii)
the
Securities Administrator shall execute, authenticate and deliver, in accordance
with the registration and delivery instructions provided by the Depository,
a
Definitive Note evidencing such Noteholder's interest in such Class of Notes
and
(iii) the Issuing Entity shall execute and the Securities Administrator shall
authenticate a new Book-Entry Note reflecting the reduction in the Note
Principal Balance of such Class of Notes by the amount of the Definitive
Notes.
Section
4.09 Tax
Treatment. The Issuing Entity has entered into this Indenture,
and the Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class III-A-1,
Class III-A-2, Class IV-A-1 and Class IV-A-2 Notes shall be issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, such Classes of Notes will qualify as indebtedness.
The
Issuing Entity and the Securities Administrator (in accordance with Section
6.07
hereof), by entering into this Indenture, and each Class I-A-1, Class I-A-2,
Class II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1 and
Class
IV-A-2 Noteholder, by its acceptance of its Note (and each Beneficial Owner
by
its acceptance of an interest in the applicable Book-Entry Note), agree to
treat
such Classes of Notes for federal, state and local income, single business
and
franchise tax purposes as indebtedness.
Section
4.10 Satisfaction
and Discharge of Indenture. This Indenture shall cease to be of
further effect with respect to the Notes except as to (i) rights of registration
of transfer and exchange, (ii) substitution of mutilated, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal
thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.06, 3.09, 3.17, 3.19
and 3.20, (v) the rights, obligations and immunities of the Indenture Trustee
and Securities Administrator hereunder (including the rights of the Securities
Administrator under Section 6.08 and the obligations of the Securities
Administrator under Section 4.11), and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Securities Administrator payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuing Entity, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes and shall release and deliver, or cause the related
Custodian to deliver, the Collateral to or upon the order of the Issuing Entity,
when
(A) Any
of
the following occur:
(1) all
Notes
theretofore authenticated and delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been replaced or paid as provided in
Section 4.03 hereof and (ii) Notes for whose payment money has theretofore
been
deposited in trust or segregated and held in trust by the Issuing Entity and
thereafter repaid to the Issuing Entity or discharged from such trust, as
provided in Section 3.03) have been delivered to the Securities Administrator
for cancellation;
(2) all
Notes
not theretofore delivered to the Securities Administrator for
cancellation
|
a.
|
have
become due and payable,
|
|
b.
|
will
become due and payable at the Final Scheduled Payment Date within
one
year, or
|
|
c.
|
have
been called for early redemption and the Trust has been terminated
pursuant to Section 8.07 hereof;
|
and
the
Issuing Entity, in the case of a., b. or c. above, has irrevocably deposited
or
caused to be irrevocably deposited with the Securities Administrator cash or
direct obligations of or obligations guaranteed by the United States of America
(which will mature prior to the date such amounts are payable), in trust for
such purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Notes then outstanding not theretofore delivered to the
Securities Administrator for cancellation when due on the Final Scheduled
Payment Date or other final Payment Date and has delivered to the Securities
Administrator and the Indenture Trustee a verification report from a nationally
recognized accounting firm certifying that the amounts deposited with the
Securities Administrator are sufficient to pay and discharge the entire
indebtedness of such Notes, or, in the case of c. above, the Issuing Entity
shall have complied with all requirements of Section 8.07 hereof;
or
(3) all
Notes
have been called for surrender in exchange for the corresponding Classes of
REMIC Class A Notes and REMIC Privately Offered Certificates pursuant to Section
8.06 in connection with a REMIC Conversion as described in Article
XI.
(B) the
Issuing Entity has paid or caused to be paid all other sums payable hereunder;
and
(C) the
Issuing Entity has delivered to the Indenture Trustee an Officer’s Certificate
and an Opinion of Counsel, each meeting the applicable requirements of Section
10.01 hereof, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with and, if the Opinion of Counsel relates to a deposit made in connection
with
Section 4.10(A)(2)b. above, such opinion shall further be to the effect that
such deposit will constitute an “in-substance defeasance” within the meaning of
Revenue Ruling 85-42, 1985-1 C.B. 36, and in accordance therewith, the Issuing
Entity will be the owner of the assets deposited in trust for federal income
tax
purposes.
Section
4.11 Application
of Trust Money. All monies deposited with the Securities
Administrator pursuant to Section 4.10 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to
the
payment, either directly or through any paying agent or the certificate paying
agent as designee of the Issuing Entity, as the Securities Administrator may
determine, to the Holders of Securities, of all sums due and to become due
thereon for principal and interest or otherwise; but such monies need not be
segregated from other funds except to the extent required herein or required
by
law.
Section
4.12 [Reserved].
Section
4.13 Repayment
of Monies Held by Securities Administrator. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes,
all
monies then held by any Person other than the Securities Administrator under
the
provisions of this Indenture with respect to such Notes shall, upon demand
of
the Issuing Entity, be paid to the Securities Administrator to be held and
applied according to Section 3.03 and thereupon such Person shall be released
from all further liability with respect to such monies.
Section
4.14 Temporary
Notes. Pending the preparation of any Definitive Notes, the
Issuing Entity may execute and upon its written direction, the Securities
Administrator may authenticate and make available for delivery, temporary Notes
that are printed, lithographed, typewritten, photocopied or otherwise produced,
in any denomination, substantially of the tenor of the Definitive Notes in
lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If
temporary Notes are issued, the Issuing Entity will cause Definitive Notes
to be
prepared without unreasonable delay. After the preparation of the Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the Corporate Trust Office of the Securities
Administrator, without charge to the Holder. Upon surrender for cancellation
of
any one or more temporary Notes, the Issuing Entity shall execute and the
Securities Administrator shall authenticate and make available for delivery,
in
exchange therefor, Definitive Notes of authorized denominations and of like
tenor, class and aggregate principal amount. Until so exchanged, such temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as Definitive Notes.
Section
4.15 ERISA
Treatment.
No
Note
may be sold or transferred to a Person unless such Person certifies in the
form
of Exhibit E to this Agreement (which in the case of the Book-Entry Notes,
such
Person will be deemed to have made the representations contained in such
certificates, respectively), which certification the Securities Administrator
may rely upon without further inquiry or investigation, that:
(i) Such
Person is neither (A) an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code (each,
a
“Plan”), nor (B) any Person who is directly or indirectly purchasing such Note
or interest therein on behalf of, as named fiduciary of, as trustee of, or
with
“Plan Assets” (as defined under the DOL Regulation at 29 C.F.R. Section
2510.3-101) of a Plan;
(ii) Except
in the case of a Class X Note or Class B Note (A) such Person is a Plan or
a
Person purchasing such Note with Plan Assets and represents that, as of the
date
of the transfer, the Notes are rated investment grade or better, (B) such Person
believes that the Notes are properly treated as indebtedness without substantial
equity features for purposes of the DOL Regulations, and agrees to so treat
the
Notes, and (C) the acquisition and holding of the Note will not give rise to
a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code; or
(iii) Such
Person has provided the Securities Administrator with an Opinion of Counsel,
which Opinion of Counsel will not be at the expense of the Trust Estate, the
Depositor, the Issuing Entity, the Owner Trustee, the Indenture Trustee or
the
Securities Administrator, which establishes to the satisfaction of the
Securities Administrator that the purchase, holding and transfer of such Note
or
interest therein is permissible under applicable law, will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section 4975 of
the
Code and will not subject the Issuing Entity, the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Depositor or the Indenture Trustee
to
any obligation in addition to those undertaken in the Indenture.
Notwithstanding
the foregoing, neither an Opinion of Counsel nor a certification will be
required in connection with the initial transfer of any such Note by the
Depositor to an Affiliate of the Depositor (in which case, the Depositor or
any
Affiliate thereof shall be deemed to have represented that such Affiliate is
not
a Plan or any Person investing “plan assets” of any Plan) and the Securities
Administrator shall be entitled to conclusively rely upon a representation
(which, upon the request of the Securities Administrator, shall be a written
representation) from the Depositor of the status of such transferee as an
Affiliate of the Depositor.
ARTICLE
V
DEFAULT
AND REMEDIES
Section
5.01 Events
of Default. The Issuing Entity shall deliver to the Indenture
Trustee, within five days after learning of the occurrence of a Default, written
notice in the form of an Officer’s Certificate of any event which with the
giving of notice and the lapse of time would become an Event of Default under
clause (ii), (iii) or (iv) of the definition of “Event of Default”, its status
and what action the Issuing Entity is taking or proposes to take with respect
thereto. The Indenture Trustee shall not be deemed to have knowledge of any
Default or Event of Default unless a Responsible Officer has actual knowledge
thereof or unless written notice of such Default or Event of Default is received
by a Responsible Officer and such notice references the Notes, the Trust Estate
or this Indenture.
Section
5.02 Acceleration
of Maturity; Rescission and Annulment. If an Event of Default
should occur and be continuing, then and in every such case the Indenture
Trustee at the written direction of the Holders of Notes representing not less
than a majority of the aggregate Note Principal Balance of the Notes may declare
the Notes to be immediately due and payable, by a notice in writing to the
Issuing Entity (and to the Indenture Trustee if such notice is given by
Noteholders), and upon any such declaration the unpaid Note Principal Balance
of
the Notes, together with accrued and unpaid interest thereon through the date
of
acceleration, shall become immediately due and payable.
At
any
time after such declaration of acceleration of maturity with respect to an
Event
of Default has been made and before a judgment or decree for payment of the
money due has been obtained by the Indenture Trustee as hereinafter in this
Article V provided, Holders of the Notes representing not less than a majority
of the aggregate Note Principal Balance of each Class of Notes, by written
notice to the Issuing Entity and the Indenture Trustee, may, subject to Section
5.12, waive the related Event of Default and rescind and annul such declaration
and its consequences if:
(i) the
Issuing Entity has paid or deposited with the Indenture Trustee or Securities
Administrator a sum sufficient to pay:
(A) all
payments of principal of and interest on the Notes and all other amounts that
would then be due hereunder or under the Notes if the Event of Default giving
rise to such acceleration had not occurred;
(B) all
sums
paid or advanced by the Indenture Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee
and
its agents and counsel; and
(ii) all
Events of Default, other than the nonpayment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.12.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereto.
Section
5.03 Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) The
Issuing Entity covenants that if (i) default is made in the payment of any
interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment
of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, the Issuing Entity shall, upon demand of the Indenture
Trustee, acting at the direction of the Holders of a majority of the aggregate
Note Principal Balances of the Notes, pay to the Securities Administrator,
for
the benefit of the Holders of Notes, the whole amount then due and payable
on
the Notes for principal and interest, with interest at the applicable Note
Interest Rate upon the overdue principal, and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of
the Indenture Trustee and its agents and counsel.
(b) In
case
the Issuing Entity shall fail forthwith to pay such amounts upon such demand,
the Indenture Trustee, in its own name and as trustee of an express trust,
subject to the provisions of Section 10.15 hereof, may institute a Proceeding
for the collection of the sums so due and unpaid, and may prosecute such
Proceeding to judgment or final decree, and may enforce the same against the
Issuing Entity or other obligor upon the Notes and collect in the manner
provided by law out of the property of the Issuing Entity or other obligor
upon
the Notes, wherever situated, the monies adjudged or decreed to be
payable.
(c) If
an
Event of Default occurs and is continuing, the Indenture Trustee, subject to
the
provisions of Section 10.15 hereof, may, as more particularly provided in
Section 5.04 hereof, in its discretion, proceed to protect and enforce its
rights and the rights of the Noteholders by such appropriate Proceedings as
directed in writing by the Holders of a majority of the aggregate Note Principal
Balances of each Class of Notes, to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture
or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Indenture Trustee by
this Indenture or by law.
(d) In
case
there shall be pending, relative to the Issuing Entity or any other obligor
upon
the Notes or any Person having or claiming an ownership interest in the Trust
Estate, Proceedings under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or
in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for
or
taken possession of the Issuing Entity or its property or such other obligor
or
Person, or in case of any other comparable judicial Proceedings relative to
the
Issuing Entity or other obligor upon the Notes, or to the creditors or property
of the Issuing Entity or such other obligor, the Indenture Trustee, as directed
in writing by the Holders of a majority of the aggregate Note Principal Balances
of each Class of Notes, irrespective of whether the principal of any Notes
shall
then be due and payable as therein expressed or by declaration or otherwise
and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered,
by
intervention in such Proceedings or otherwise:
(i) to
file
and prove a claim or claims for the whole amount of principal and interest
owing
and unpaid in respect of the Notes and to file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of negligence, willful misconduct or
bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of Notes in any election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;
(iii) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Noteholders and of the Indenture Trustee on their behalf, and
(iv) to
file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee or the Holders
of
Notes allowed in any judicial proceedings relative to the Issuing Entity, its
creditors and its property;
and
any
trustee, receiver, liquidator, custodian or other similar official in any such
Proceeding is hereby authorized by each of such Noteholders to make payments
to
the Securities Administrator, and, in the event that the Indenture Trustee
shall
consent to the making of payments directly to such Noteholders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee.
(e) Nothing
herein contained shall be deemed to authorize the Indenture Trustee to authorize
or consent to or vote for or accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Indenture Trustee
to vote in respect of the claim of any Noteholder in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All
rights of action and of asserting claims under this Indenture, or under any
of
the Notes, may be enforced by the Indenture Trustee without the possession
of
any of the Notes or the production thereof in any trial or other Proceedings
relative thereto, and any such action or proceedings instituted by the Indenture
Trustee shall be brought in its own name as trustee of an express trust, and
any
recovery of judgment, subject to the payment of the expenses, disbursements
and
compensation of the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the ratable benefit of
the
Holders of the Notes, subject to Section 5.05 hereof.
In
any
Proceedings brought by the Indenture Trustee (and also any Proceedings involving
the interpretation of any provision of this Indenture to which the Indenture
Trustee shall be a party), the Indenture Trustee shall be held to represent
all
the Holders of the Notes, and it shall not be necessary to make any Noteholder
a
party to any such Proceedings.
Section
5.04 Remedies;
Priorities. (a) If an Event of Default shall have
occurred and be continuing and if an acceleration has been declared and not
rescinded pursuant to Section 5.02 hereof, the Indenture Trustee, subject to
the
provisions of Section 10.15 hereof, may, and shall, at the written direction
of
the Holders of a majority of the aggregate Note Principal Balances of the Notes,
do one or more of the following (subject to Section 5.05 hereof):
(i) institute
Proceedings in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Notes or under this Indenture
with
respect thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuing Entity and any other obligor upon such
Notes monies adjudged due;
(ii) institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture with respect to the Trust Estate;
(iii) exercise
any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture Trustee
and the Holders of the Notes; and
(iv) sell
the
Trust Estate or any portion thereof or rights or interest therein, at one or
more public or private sales called and conducted in any manner permitted by
law;
provided,
however, that the Indenture Trustee may not sell or otherwise liquidate the
Trust Estate following an Event of Default, unless (A) the Indenture Trustee
obtains the consent of the Holders of 100% of the aggregate Note Principal
Balance of the Notes then outstanding, (B) the proceeds of such sale or
liquidation distributable to the Holders of the Notes are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for principal
and interest or (C) the Indenture Trustee determines that the Mortgage Loans
will not continue to provide sufficient funds for the payment of principal
of
and interest on the applicable Notes as they would have become due if the Notes
had not been declared due and payable, and the Indenture Trustee obtains the
consent of the Holders of 66 2/3% of the aggregate Note Principal Balance of
each Class of Notes then outstanding, voting separately. In
determining such sufficiency or insufficiency with respect to clause (B) and
(C), the Indenture Trustee may, but need not, obtain and rely upon an opinion
(obtained at the expense of the Trust) of an Independent investment banking
or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
Notwithstanding the foregoing, any Sale of the Trust Estate shall be made
subject to the continued servicing of the Mortgage Loans by the Servicer (other
than any Servicer as to which an Event of Servicer Termination has occurred
and
is continuing) as provided in the Sale and Servicing Agreement.
(b) If
the
Indenture Trustee or the Securities Administrator collects any money or property
pursuant to this Article V, the Securities Administrator shall pay out the
money
or property in the following order:
FIRST:
to
the Indenture Trustee, the Securities Administrator, Master Servicer, the Owner
Trustee, the Custodians and the Servicers for amounts due and not previously
paid pursuant to the Indenture and the other Basic Documents,
SECOND:
to the Noteholders, in the manner and priority set forth under Section 3.03
of
this Agreement, and
THIRD:
to
the Securities Administrator for distribution to the holders of the
Certificates.
The
Securities Administrator may fix a record date and Payment Date for any payment
to Noteholders pursuant to this Section 5.04. At least 15 days before such
record date, the Securities Administrator shall mail to each Noteholder a notice
that states the record date, the Payment Date and the amount to be
paid.
Section
5.05 Optional
Preservation of the Trust Estate. If the Notes have been declared
to be due and payable under Section 5.02 following an Event of Default and
such
declaration and its consequences have not been rescinded and annulled, the
Indenture Trustee may elect to take and maintain possession of the Trust Estate.
It is the desire of the parties hereto and the Noteholders that there be at
all
times sufficient funds for the payment of principal of and interest on the
Notes
and other obligations of the Issuing Entity, and the Indenture Trustee shall
take such desire into account when determining whether or not to take and
maintain possession of the Trust Estate. In determining whether to take and
maintain possession of the Trust Estate, the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such
purpose.
Section
5.06 Limitation
of Suits. So long as the Majority Certificateholder owns 100% of
the Securities, no Holder of any Note shall have any right to institute any
Proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder. No Holder of any Note shall have any right to institute
any Proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless and subject to the foregoing and the provisions of Section 10.15
hereof:
(i) such
Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;
(ii) the
Holders of not less than 25% of the aggregate Note Principal Balance of the
Notes have made a written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(iii) such
Holder or Holders have offered to the Indenture Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in complying with
such request;
(iv) the
Indenture Trustee, for 60 days after its receipt of such notice of request
and
offer of indemnity, has failed to institute such Proceedings; and
(v) no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Holders of a majority of the Note
Principal Balances of the Notes.
It
is
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.
No
Holder
of any Note shall have any right to institute any Proceeding, judicial or
otherwise with respect to a TMP Trigger Event, with respect to the meeting
of
the conditions for a REMIC Conversion or with respect to a REMIC
Conversion.
Subject
to the last paragraph of Section 5.11 herein, in the event the Indenture Trustee
shall receive conflicting or inconsistent requests and indemnity from two or
more Holders of Notes, each representing less than a majority of the Note
Principal Balances of the Notes, the Indenture Trustee shall take such action
as
requested by the Holders representing the highest amount (in the aggregate)
of
the Note Principal Balances, notwithstanding any other provisions of this
Indenture.
Section
5.07 Unconditional
Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on
such Note on or after the respective due dates thereof expressed in such Note
or
in this Indenture and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such
Holder. Notwithstanding the foregoing, in the event of a REMIC
Conversion, Holders of Notes shall receive in a mandatory exchange for such
Notes, the corresponding classes of REMIC Class A Notes and REMIC Privately
Offered Certificates, as further described in Section 8.06 hereof, whose
principal and interest entitlements shall not be determined by this Indenture
but rather by the provisions of the REMIC Class A Indenture and Pooling and
Servicing Agreement, as applicable.
Section
5.08 Restoration
of Rights and Remedies. If the Indenture Trustee or any
Noteholder has instituted any Proceeding to enforce any right or remedy under
this Indenture and such Proceeding has been discontinued or abandoned for any
reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuing Entity, the Indenture
Trustee and the Noteholders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee
and
the Noteholders shall continue as though no such Proceeding had been
instituted.
Section
5.09 Rights
and Remedies Cumulative. No right or remedy herein conferred upon
or reserved to the Indenture Trustee or to the Noteholders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the
extent permitted by law, be cumulative and in addition to every other right
and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other
appropriate right or remedy.
Section
5.10 Delay
or Omission Not a Waiver. No delay or omission of the Indenture
Trustee or any Holder of any Note to exercise any right or remedy accruing
upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and
remedy given by this Article V or by law to the Indenture Trustee or to the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may
be.
Section
5.11 Control
By Noteholders. The Holders of a majority of the aggregate Note
Principal Balances of Notes shall have the right to direct the time, method
and
place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred
on
the Indenture Trustee; provided that:
(i) such
direction shall not be in conflict with any rule of law or with this
Indenture;
(ii) any
direction to the Indenture Trustee to sell or liquidate the Trust Estate shall
be by Holders of Notes representing not less than 100% of the aggregate Note
Principal Balance of the Notes or the Holders of 66 2/3% of the aggregate Note
Principal Balance of each Class of Notes then outstanding, voting separately
as
set forth in Section 5.04(a) hereof; and
(iii) the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction of the Holders of Notes
representing a majority of the Note Principal Balances of the
Notes.
Notwithstanding
the rights of Noteholders set forth in this Section 5.11 the Indenture Trustee
need not take any action that it determines might involve it in
liability.
Section
5.12 Waiver
of Past Defaults. Prior to the declaration of the acceleration of
the maturity of the Notes as provided in Section 5.02 hereof, the Holders of
Notes representing not less than a majority of the aggregate Note Principal
Balance of each Class of Notes may waive any past Event of Default and its
consequences except an Event of Default (a) with respect to payment of principal
of or interest on any of the Notes, or (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder
of
each Note. In the case of any such waiver, the Issuing Entity, the
Indenture Trustee and the Holders of the Notes shall be restored to their former
positions and rights hereunder, respectively, but no such waiver shall extend
to
any subsequent or other Event of Default or impair any right consequent
thereto.
Upon
any
such waiver, any Event of Default arising therefrom shall be deemed to have
been
cured and not to have occurred for every purpose of this Indenture; but no
such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereto.
Section
5.13 Undertaking
for Costs. All parties to this Indenture agree, and each Holder
of any Note and each Beneficial Owner of any interest therein by such Xxxxxx’s
or Beneficial Owner’s acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of
any
right or remedy under this Indenture, or in any suit against the Indenture
Trustee for any action taken, suffered or omitted by it as Indenture Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by
such party litigant; but the provisions of this Section 5.13 shall not apply
to
(a) any suit instituted by the Indenture Trustee, (b) any suit instituted by
any
Noteholder, or group of Noteholders, in each case holding in the aggregate
more
than 10% of the Note Principal Balances of the Notes or (c) any suit instituted
by any Noteholder for the enforcement of the payment of principal of or interest
on any Note on or after the respective due dates expressed in such Note and
in
this Indenture.
Section
5.14 Waiver
of Stay or Extension Laws. The Issuing Entity covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture;
and
the Issuing Entity (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not
hinder, delay or impede the execution of any power herein granted to the
Indenture Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
Section
5.15 Sale
of Trust Estate. (a) The power to effect any sale or
other disposition (a “Sale”) of any portion of the Trust Estate pursuant to
Section 5.04 hereof is expressly subject to the provisions of Sections 5.05
and
5.11(ii) hereof and this Section 5.15. The power to effect any such Sale shall
not be exhausted by any one or more Sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall have been sold or all amounts payable on the Notes and under this
Indenture shall have been paid. The Indenture Trustee may from time to time
postpone any public Sale by public announcement made at the time and place
of
such Sale. The Indenture Trustee hereby expressly waives its right to any amount
fixed by law as compensation for any Sale.
(b) The
Indenture Trustee shall not in any private Sale sell the Trust Estate, or any
portion thereof, unless
(1) the
Holders of all Notes consent to or direct the Indenture Trustee to make, such
Sale, or
(2) the
proceeds of such Sale would be not less than the entire amount which would
be
payable to the Noteholders under the Notes, in full payment thereof in
accordance with Section 5.02 hereof, on the Payment Date next succeeding the
date of such Sale, or
(3) the
Indenture Trustee determines that the conditions for retention of the Trust
Estate set forth in Section 5.05 hereof cannot be satisfied (in making any
such
determination, the Indenture Trustee may rely upon an opinion of an Independent
investment banking firm obtained and delivered as provided in Section 5.05
hereof), and the Holders of Notes representing at least 100% of the Note
Principal Balances of the Notes consent to such Sale; or
(4) such
Sale
occurs following notice of a TMP Trigger Event in accordance with the terms
and
conditions described in Section 11.01 of this Indenture.
The
purchase by the Indenture Trustee of all or any portion of the Trust Estate
at a
private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
(c) Subject
to this Section 5.15, unless the Holders representing at least 100% of the
aggregate Note Principal Balance of the Notes or the Holders of 66 2/3% of
the
aggregate Note Principal Balance of each Class of Notes then outstanding, voting
separately as set forth in Section 5.04(a) hereof, have otherwise consented
or
directed the Indenture Trustee, at any public Sale of all or any portion of
the
Trust Estate at which a minimum bid equal to or greater than the amount
described in paragraph (2) of subsection (b) of this Section 5.15 has not been
established by the Indenture Trustee and no Person bids an amount equal to
or
greater than such amount, the Indenture Trustee, as trustee for the benefit
of
the Holders of the Notes, shall 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.
(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 Notes or claims for interest thereon
in
lieu of cash up to the amount which shall, upon distribution of the net proceeds
of such sale, be payable thereon, and such Notes, in case the amounts so payable
thereon shall be less than the amount due thereon, shall be returned to the
Holders thereof after being appropriately stamped to show such partial
payment;
(2) the
Indenture Trustee may bid for and acquire the property offered for Sale in
connection with any Sale thereof, and, subject to any requirements of, and
to
the extent permitted by, applicable law in connection therewith, may purchase
all or any portion of the Trust Estate in a private sale, and, in lieu of paying
cash therefor, may make settlement for the purchase price by crediting the
gross
Sale price against the sum of (A) the amount which would be distributable to
the
Holders of the Notes and Holders of Certificates 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, prepared by the Issuing Entity and satisfactory to the Indenture
Trustee, transferring its interest in any portion of the Trust Estate in
connection with a Sale thereof; and
(4) the
Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact
of the Issuing Entity to transfer and convey its interest in any portion of
the
Trust Estate in connection with a Sale thereof, and to take all action necessary
to effect such Sale.
(e) So
long
as the Majority Certificateholder owns 100% of the Securities, the Majority
Certificateholder shall not consent to any Sale of the Trust Estate as set
forth
herein other than a Sale following a TMP Trigger Event.
Section
5.16 Action
on Notes. The Indenture Trustee’s right to seek and recover
judgment on the Notes or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect
to
this Indenture. Neither the lien of this Indenture nor any rights or remedies
of
the Indenture Trustee or the Noteholders shall be impaired by the recovery
of
any judgment by the Indenture Trustee against the Issuing Entity or by the
levy
of any execution under such judgment upon any portion of the Trust Estate or
upon any of the assets of the Issuing Entity. Any money or property collected
by
the Indenture Trustee or the Securities Administrator shall be applied by the
Securities Administrator in accordance with Section 5.04(b) hereof.
ARTICLE
VI
THE
INDENTURE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section
6.01 Duties
of Indenture Trustee and Securities
Administrator. (a) If an Event of Default has occurred
and is continuing, the Indenture Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default of which the Indenture Trustee
has
actual knowledge or has received written notice, in the case of the Indenture
Trustee and, at any time, in the case of the Securities
Administrator:
(i) the
Indenture Trustee and the Securities Administrator undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture
and
the other Basic Documents to which it is a party and no implied covenants or
obligations shall be read into this Indenture and the other Basic Documents
against the Indenture Trustee or the Securities Administrator; and
(ii) in
the
absence of bad faith on its part, the Indenture Trustee and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon certificates, reports,
documents, Issuer Requests or other instruments or opinions furnished to each
of
the Indenture Trustee and the Securities Administrator and conforming to the
requirements of this Indenture or the other Basic Documents; however, the
Indenture Trustee and the Securities Administrator shall examine the
certificates, reports, documents, Issuer Requests or other instruments and
opinions to determine whether or not they conform on their face to the
requirements of this Indenture.
(c) The
Indenture Trustee and the Securities Administrator may not be relieved from
liability for each of its own negligent action, its own negligent failure to
act
or its own willful misconduct, except that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section
6.01;
(ii) neither
the Indenture Trustee nor the Securities Administrator 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 or the Securities Administrator, as
applicable, was negligent in ascertaining the pertinent facts; and
(iii) neither
the Indenture Trustee nor the Securities Administrator shall be liable with
respect to any action it takes or omits to take in good faith in accordance
with
a direction received by it from Noteholders, the Certificateholders or from
the
Issuing Entity, which they are entitled to give under the Basic
Documents.
(d) The
Indenture Trustee shall not be liable for interest on any money received by
it
except as set forth in the Basic Documents and as the Indenture Trustee may
agree in writing with the Issuing Entity.
(e) Money
held in trust by the Indenture Trustee need not be segregated from other trust
funds except to the extent required by law or the terms of this Indenture or
the
Trust Agreement.
(f) No
provision of this Indenture shall require the Indenture Trustee or the
Securities Administrator to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in
the
exercise of any of its rights or powers, if it shall have reasonable grounds
to
believe that repayment of such funds or indemnity satisfactory to it against
such risk or liability is not reasonably assured to it.
(g) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section.
(h) The
Indenture Trustee shall not be deemed to have notice or knowledge of any Default
or Event of Default unless a Responsible Officer of the Indenture Trustee has
actual knowledge thereof or unless written notice of any such event that is
in
fact an Event of Default or Default is received by the Indenture Trustee at
its
Corporate Trust Office and such notice references the Notes or Certificates
generally, the Issuing Entity, the Trust Estate or this Indenture.
(i) The
Securities Administrator (i) may not be an originator, Master Servicer,
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is a bank or trust company organized under the laws of the United
States or any state thereof, (ii) must be authorized to exercise corporate
trust
powers under the laws of its jurisdiction of organization, and (iii) must be
rated at least “A/F1” by Fitch, if Fitch is a Rating Agency, or the equivalent
rating by S&P or Xxxxx’x. If no successor Securities
Administrator shall have been appointed and shall have accepted appointment
within 60 days after the Securities Administrator ceases to be the Securities
Administrator pursuant to Section 6.09, then the Indenture Trustee when acting
as Securities Administrator shall perform the duties of the Securities
Administrator pursuant to this Agreement. The Indenture Trustee shall
be entitled to all compensation, reimbursement of expenses and indemnifications
that the Securities Administrator would have been entitled to if it had
continued to act hereunder, provided, however, that the Indenture Trustee shall
not be (i) liable for any acts or omissions of the Securities Administrator,
or
(ii) responsible for expenses of the Securities Administrator. The Indenture
Trustee shall notify the Rating Agencies of any change of Securities
Administrator.
Section
6.02 Rights
of Indenture Trustee and Securities
Administrator. (a) The Indenture Trustee and the
Securities Administrator 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
and the Securities Administrator need not investigate any fact or matter stated
in the document.
(b) Before
the Indenture Trustee or the Securities Administrator acts or refrains from
acting, it may require an Officer’s Certificate or an Opinion of Counsel.
Neither the Indenture Trustee nor the Securities Administrator shall be liable
for any action it takes or omits to take in good faith in reliance on and in
accordance with an Officer’s Certificate or Opinion of Counsel.
(c) Neither
the Indenture Trustee nor the Securities Administrator shall be liable for
any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
(d) The
Indenture Trustee or the Securities Administrator may consult with counsel,
and
the written advice or Opinion of Counsel (which shall not be at the expense
of
the Indenture Trustee or the Securities Administrator) with respect to legal
matters relating to this Indenture, the other Basic Documents and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the written advice or opinion of such
counsel.
(e) For
the
limited purpose of effecting any action to be undertaken by each of the
Indenture Trustee and the Securities Administrator, but not specifically as
a
duty of the Indenture Trustee or the Securities Administrator in the Indenture,
each of the Indenture Trustee and the Securities Administrator may execute
any
of the trusts or powers hereunder or perform any duties hereunder, either
directly or by or through agents, attorneys, custodians or nominees appointed
with due care, and shall not be responsible for any willful misconduct or
negligence on the part of any agent, attorney, custodian or nominee so
appointed.
(f) The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self-interest for (i) serving as investment adviser, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain
of the Permitted Investments, (ii) using Affiliates to effect transactions
in
certain Permitted Investments and (iii) effecting transactions in certain
Permitted Investments. Such compensation shall not be considered an amount
that
is reimbursable or payable to the Securities Administrator (i) as part of the
compensation hereunder or (ii) out of Available Funds.
(g) Anything
in this Indenture to the contrary notwithstanding, in no event shall the
Indenture Trustee or the Securities Administrator be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including
but
not limited to lost profits), even if the Indenture Trustee or the Securities
Administrator has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(h) None
of
the Securities Administrator, the Issuing Entity or the Indenture Trustee shall
be responsible for the acts or omissions of the other, it being understood
that
this Indenture shall not be construed to render them partners, joint venturers
or agents of one another.
(i) Neither
the Indenture Trustee nor the Securities Administrator shall be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or indemnity reasonably satisfactory to it against such risk
or
liability is not reasonably assured to it, and none of the provisions contained
in this Indenture shall in any event require the Indenture Trustee or the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under the Xxxxx
Fargo Servicing Agreement, except during such time, if any, as the Indenture
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Master Servicer in accordance with the terms of the
Xxxxx
Fargo Servicing Agreement.
(j) Except
for those actions that the Indenture Trustee or the Securities Administrator
are
required to take hereunder, neither the Indenture Trustee nor the Securities
Administrator shall have any obligation or liability to take any action or
to
refrain from taking any action hereunder in the absence of written direction
as
provided hereunder.
(k) Neither
the Indenture Trustee nor the Securities Administrator shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Indenture, other than its obligation to give notices pursuant to this Indenture,
or to institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the Noteholders pursuant
to
the provisions of this Indenture, unless such Noteholders shall have offered
to
the Indenture Trustee or the Securities Administrator, as applicable, reasonable
security or indemnity against the costs, expenses and liabilities which may
be
incurred therein or thereby. Nothing contained herein shall, however,
relieve the Indenture Trustee of the obligation, upon the occurrence of an
Event
of Default of which a Responsible Officer of the Indenture Trustee has actual
knowledge (which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Indenture and to use the same degree of care
and
skill in their exercise as a prudent person would exercise under the
circumstances in the conduct of his own affairs.
(l) Neither
the Indenture Trustee nor the Securities Administrator shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing
to
do so by Holders of Notes representing not less than 25% of the Note Principal
Balance of the Notes and provided that the payment within a reasonable time
to
the Indenture Trustee or the Securities Administrator, as applicable, of the
costs, expenses or liabilities likely to be incurred by it in the making of
such
investigation is, in the opinion of the Indenture Trustee or the Securities
Administrator, as applicable, reasonably assured to the Indenture Trustee by
the
security afforded to it by the terms of this Indenture. The Indenture Trustee
or
the Securities Administrator may require reasonable indemnity against such
expense or liability as a condition to taking any such action. The reasonable
expense of every such examination shall be paid by the Noteholders requesting
the investigation.
(m) Should
the Indenture Trustee or the Securities Administrator deem the nature of any
action required on its part to be unclear, the Indenture Trustee or the
Securities Administrator, respectively, may require prior to such action that
it
be provided by the Depositor with reasonable further instructions.
(n) The
right
of the Indenture Trustee or the Securities Administrator to perform any
discretionary act enumerated in this Indenture shall not be construed as a
duty,
and neither the Indenture Trustee nor the Securities Administrator shall be
accountable for other than its negligence or willful misconduct in the
performance of any such act.
(o) Neither
the Indenture Trustee nor the Securities Administrator shall be required to
give
any bond or surety with respect to the execution of the trust created hereby
or
the powers granted hereunder.
(p) Neither
the Indenture Trustee nor the Securities Administrator shall have any duty
to
conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Mortgage Loan by the Seller pursuant to this
Indenture or the Mortgage Loan Purchase Agreement, as applicable, or the
eligibility of any Mortgage Loan for purposes of this Indenture.
(q) The
Indenture Trustee shall not be deemed to have notice or actual knowledge of
any
Default or Event of Default unless actually known to a Responsible Officer
of
the Indenture Trustee or written notice thereof (making reference to this
Indenture or the Notes) is received by the Indenture Trustee at the Corporate
Trust Office.
Section
6.03 Individual
Rights of Indenture Trustee. The Indenture Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuing Entity or its Affiliates with the same
rights it would have if it were not Indenture Trustee, subject to the
requirements of the Trust Indenture Act. Any note registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Indenture Trustee
must comply with Section 6.12 hereof.
Section
6.04 [Reserved].
Section
6.05 Indenture
Trustee’s and Securities Administrator’s Disclaimer. Neither the
Indenture Trustee nor the Securities Administrator shall be responsible for
and
makes no representation as to the validity or adequacy of this Indenture, the
Notes or any other Basic Document, it shall not be accountable for the Issuing
Entity’s use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuing Entity in the Indenture or in any document issued
in connection with the sale of the Notes or in the Notes other than the
Securities Administrator’s certificate of authentication.
Section
6.06 Notice
of Event of Default. Subject to Section 5.01, the Indenture
Trustee shall promptly mail to each Noteholder notice of the Event of Default
after it is known to a Responsible Officer of the Indenture Trustee, unless
such
Event of Default shall have been waived or cured. Except in the case of an
Event
of Default in payment of principal of or interest on any Note, the Indenture
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the best
interests of Noteholders.
Section
6.07 Reports
to Holders and Tax Administration.
The
Securities Administrator shall deliver to each Noteholder such information
as
may be required by the Internal Revenue Service or by federal or state law
or
rules or regulations to enable such holder to prepare its federal and state
income tax returns.
The
Securities Administrator shall prepare and file (or cause to be prepared and
filed), on behalf of the Owner Trustee, all tax returns (if any) and information
reports and tax elections and such annual or other reports of the Issuing Entity
as are necessary for preparation of tax returns and information reports, each
as
provided in Section 5.03 of the Trust Agreement, including without limitation
Form 1099. All tax returns and information reports shall be signed by
the Owner Trustee, or to the extent permitted by law, the Securities
Administrator, as provided in Section 5.03 of the Trust Agreement.
Section
6.08 Compensation. An
annual fee shall be paid to the Indenture Trustee by the Master Servicer
pursuant to a separate agreement between the Indenture Trustee and the Master
Servicer. The fee of the Securities Administrator will also be paid
by the Master Servicer. In addition, the Indenture Trustee and the
Securities Administrator will each be entitled to recover from the Payment
Account pursuant to Section 4.03 of the Sale and Servicing Agreement all
reasonable out-of-pocket expenses, disbursements and advances and the expenses
of the Indenture Trustee and the Securities Administrator, respectively, in
connection with any breach of this Indenture or any claim or legal action
(including any pending or threatened claim or legal action) or otherwise
incurred or made by the Indenture Trustee or the Securities Administrator,
respectively, in the administration of the trusts hereunder (including the
reasonable compensation, expenses and disbursements of its counsel) except
any
such expense, disbursement or advance as may arise from its own negligence
or
intentional misconduct or which is the responsibility of the Noteholders as
provided herein. Such compensation and reimbursement obligation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust. Additionally, each of the Indenture
Trustee and the Securities Administrator (including in their individual
capacity) and any director, officer, employee or agent of the Indenture Trustee
or the Securities Administrator shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable attorney's
fees and expenses) incurred in the administration of this Indenture (other
than
its ordinary out of pocket expenses incurred hereunder) or in connection with
any claim or legal action relating to (a) the Basic Documents or (b) the Notes,
other than any loss, liability or expense incurred by reason of its own
negligence or intentional misconduct, or which is the responsibility of the
Noteholders as provided herein.
The
Issuing Entity's payment obligations to the Indenture Trustee and Securities
Administrator pursuant to this Section 6.08 shall survive the discharge of
this
Indenture and the termination or resignation of the Indenture Trustee or
Securities Administrator. When the Indenture Trustee or the
Securities Administrator incurs expenses after the occurrence of an Event of
Default with respect to the Issuing Entity, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar
law.
Section
6.09 Replacement
of Indenture Trustee and the Securities Administrator. No
resignation or removal of the Indenture Trustee or the Securities Administrator
and no appointment of a successor Indenture Trustee or a successor Securities
Administrator shall become effective until the acceptance of appointment by
the
successor Indenture Trustee pursuant to this Section 6.09. The Indenture Trustee
or the Securities Administrator may resign at any time by so notifying the
Issuing Entity. In the event that the Indenture Trustee determines that a
conflict of interest exists between the Holders of the Class A Notes and the
Holders of any Class of Subordinate Notes, then the Indenture Trustee shall
be
entitled to resign as the indenture trustee for all Classes of Notes other
than
the Class A Notes. In such event the Holders of a majority of Note
Principal Balances of all of the Subordinate Notes shall designate a separate
indenture trustee to represent their interests hereunder. Holders of
a majority of Note Principal Balances of each Class of Notes may remove the
Indenture Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. The Issuing Entity shall remove the Indenture
Trustee or the Securities Administrator, as applicable, if:
(i) the
Indenture Trustee or the Securities Administrator fails to comply with or
qualify pursuant to the provisions of Section 6.12 hereof;
(ii) the
Indenture Trustee or the Securities Administrator is adjudged a bankrupt or
insolvent;
(iii) a
receiver or other public officer takes charge of the Indenture Trustee or the
Securities Administrator or its property;
(iv) the
Indenture Trustee or the Securities Administrator otherwise becomes incapable
of
acting; or
(v) the
Master Servicer is terminated pursuant to Section 5.01 of the Xxxxx Fargo
Servicing Agreement.
If
the
Indenture Trustee or the Securities Administrator resigns or is removed or
if a
vacancy exists in the office of the Indenture Trustee or the Securities
Administrator for any reason (the Indenture Trustee or the Securities
Administrator in such event being referred to herein as the retiring Indenture
Trustee or the retiring Securities Administrator ), the Issuing Entity shall
promptly appoint a successor Indenture Trustee or successor Securities
Administrator.
Each
of a
successor Indenture Trustee or successor Securities Administrator shall deliver
a written acceptance of its appointment to the retiring Indenture Trustee or
the
retiring Securities Administrator, as applicable, and to the Issuing
Entity. Thereupon, the resignation or removal of the retiring
Indenture Trustee or the retiring Securities Administrator shall become
effective, and the successor Indenture Trustee or successor Securities
Administrator shall have all the rights, powers and duties of the Indenture
Trustee or the Securities Administrator, as applicable, under this
Indenture. The successor Indenture Trustee or successor Securities
Administrator shall each mail a notice of its succession to
Noteholders. The retiring Indenture Trustee or the retiring
Securities Administrator shall promptly transfer all property held by it as
Indenture Trustee or Securities Administrator, as applicable, to the successor
Indenture Trustee or successor Securities Administrator.
If
a
successor Indenture Trustee or successor Securities Administrator does not
take
office within 60 days after the retiring Indenture Trustee or the retiring
Securities Administrator, as applicable, resigns or is removed, the retiring
Indenture Trustee or the retiring Securities Administrator, the Issuing Entity
or the Holders of a majority of Note Principal Balances of the Notes may
petition any court of competent jurisdiction for the appointment of a successor
Indenture Trustee or successor Securities Administrator.
Notwithstanding
the replacement of the Indenture Trustee or the Securities Administrator
pursuant to this Section, the Issuing Entity's obligations under Section 6.07
shall continue for the benefit of the retiring Indenture Trustee or the retiring
Securities Administrator.
Section
6.10 Successor
Indenture Trustee and Securities Administrator by Xxxxxx. If the
Indenture Trustee or the Securities Administrator consolidates with, merges
or
converts into, or transfers all or substantially all of its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation, without any further act, shall
be the successor Indenture Trustee or successor Securities Administrator, as
applicable; provided, that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.12 hereof. The Indenture
Trustee and the Securities Administrator shall provide the Rating Agencies
and
the Issuing Entity with prior written notice, and the Noteholders with prompt
written notice, of any such transaction.
If
at the
time such successor or successors by merger, conversion or consolidation to
the
Securities Administrator shall succeed to the trusts created by this Indenture
and any of the Notes shall have been authenticated but not delivered, any such
successor to the Securities Administrator may adopt the certificate of
authentication of any predecessor securities administrator and deliver such
Notes so authenticated; and if at that time any of the Notes shall not have
been
authenticated, any successor to the Securities Administrator may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the
successor to the Securities Administrator.
Section
6.11 Appointment
of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of
this Indenture, at any time, for the purpose of meeting any legal requirement
of
any jurisdiction in which any part of the Trust Estate may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the
Trust Estate, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Trust Estate, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.12 hereof.
(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate
or
any portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Indenture Trustee;
(ii) no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
(iii) the
Indenture Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any
notice, request or other writing given to the Indenture Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance
of
the trusts conferred, shall be vested with the estates or property specified
in
its instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating
to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any
separate trustee or co-trustee may at any time constitute the Indenture Trustee,
its agent or attorney-in-fact with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Indenture
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment
of a
new or successor trustee.
Section
6.12 Eligibility;
Disqualification. The Indenture Trustee shall at all times be an
entity that meets the requirements of Section 3(c)(3) under the Investment
Company Act of 1940 applicable to a trustee, and shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition and it or its parent shall have a long-term debt
rating of Baa3 or better by Xxxxx’x.
Each
of
the Indenture Trustee and the Securities Administrator hereunder shall at all
times be a corporation or an association organized and doing business under
the
laws of any state or the United States of America, authorized under such laws
to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. In case at any time the Indenture Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provisions
of
this Section, the Trustee or the Securities Administrator, as the case may
be,
shall resign immediately in the manner and with the effect specified in Section
6.09 hereof.
The
Securities Administrator and any successor Securities Administrator (i) may
not
be an Originator, the Master Servicer, a subservicer, the Depositor or an
affiliate of the Depositor unless the Securities Administrator is an
institutional trust department, (ii) must be authorized to exercise corporate
trust powers under the laws of its jurisdiction of organization, and (iii)
must
at all times be rated at least "A/F1" by Fitch if Fitch is a rating
agency.
The
Indenture Trustee shall notify the Rating Agencies of any change of Securities
Administrator. Any resignation or removal of the Indenture Trustee or the
Securities Administrator and appointment of a successor trustee or trust
administrator, as the case may be, pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor indenture trustee or securities administrator as provided in Section
6.09 hereof. Notwithstanding the foregoing, in the event the Securities
Administrator advises the Indenture Trustee that it is unable to continue to
perform its obligations pursuant to the terms of this Indenture prior to the
appointment of a successor, the Indenture Trustee shall be obligated to perform
such obligations until a new securities administrator is appointed. Such
performance shall be without prejudice to any claim by a party hereto or
beneficiary hereof resulting from the Securities Administrator's breach of
its
obligations hereunder. As compensation therefore, the Indenture Trustee shall
be
entitled to all fees the Securities Administrator would have been entitled
to if
it had continued to act hereunder.
Section
6.13 Representations
and Warranties. The Securities Administrator hereby represents
that:
(i) The
Securities Administrator is duly organized and validly existing as a national
banking association in good standing under the laws of the United States with
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted;
(ii) The
Securities Administrator has the power and authority to execute and deliver
this
Indenture and to carry out its terms; and the execution, delivery and
performance of this Indenture have been duly authorized by the Securities
Administrator by all necessary corporate action;
(iii) The
consummation of the transactions contemplated by this Indenture and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or bylaws of
the
Securities Administrator or any agreement or other instrument to which the
Securities Administrator is a party or by which it is bound; and
(iv) To
the
Securities Administrator’s knowledge, there are no proceedings or investigations
pending or threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Securities
Administrator or its properties: (A) asserting the invalidity of this Indenture,
(B) seeking to prevent the consummation of any of the transactions contemplated
by this Indenture or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Securities Administrator
of its obligations under, or the validity or enforceability of, this
Indenture.
Section
6.14 Representations
and Warranties. The Indenture Trustee hereby represents
that:
(i) The
Indenture Trustee is duly organized and validly existing as a national banking
association in good standing under the laws of the United States with power
and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted;
(ii) The
Indenture Trustee has the power and authority to execute and deliver this
Indenture and to carry out its terms; and the execution, delivery and
performance of this Indenture have been duly authorized by the Indenture Trustee
by all necessary corporate action;
(iii) The
consummation of the transactions contemplated by this Indenture and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or bylaws of
the
Indenture Trustee or any agreement or other instrument to which the Indenture
Trustee is a party or by which it is bound; and
(iv) To
the
Indenture Trustee’s knowledge, there are no proceedings or investigations
pending or threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Indenture
Trustee or its properties: (A) asserting the invalidity of this Indenture,
(B)
seeking to prevent the consummation of any of the transactions contemplated
by
this Indenture or (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Indenture Trustee of its obligations
under, or the validity or enforceability of, this Indenture.
Section
6.15 Directions
to Indenture Trustee and the Securities Administrator.
(a) the
Indenture Trustee is hereby directed to accept the pledge of the Mortgage Loans
and hold the assets of the Trust in trust for the Noteholders;
(b) the
Securities Administrator is hereby directed to (i) authenticate and deliver
the
Notes substantially in the form prescribed by Exhibits A-1, A-2 and A-3 to
this
Indenture in accordance with the terms of this Indenture; and (ii) to take
all
other actions as shall be required to be taken by the Securities Administrator
pursuant to the terms of this Indenture and the other Basic
Documents.
Section
6.16 The
Agents. The provisions of this Indenture relating to the
limitations of the Indenture Trustee’s liability and to its rights and
protections shall inure also to the Securities Administrator.
ARTICLE
VII
NOTEHOLDERS’
LISTS AND REPORTS
Section
7.01 Issuing
Entity To Furnish Securities Administrator and Indenture Trustee Names and
Addresses of Noteholders. The Issuing Entity will furnish or
cause to be furnished to the Securities Administrator and the Indenture Trustee
(a) not more than five days after each Record Date, a list, in such form as
the
Securities Administrator may reasonably require, of the names and addresses
of
the Holders of Notes as of such Record Date, and (b) at such other times as
the
Securities Administrator may request in writing, within 30 days after receipt
by
the Issuing Entity of any such request, a list of similar form and content
as of
a date not more than 10 days prior to the time such list is furnished; provided,
however, that so long as the Securities Administrator is the Note Registrar,
no
such list shall be required to be furnished to the Securities
Administrator.
Section
7.02 Preservation
of Information; Communications to Noteholders. (a) The
Securities Administrator shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Securities Administrator as provided in
Section 7.01 hereof and the names and addresses of Holders of Notes received
by
the Securities Administrator. The Securities Administrator may destroy any
list
furnished to it as provided in such Section 7.01 upon receipt of a new list
so
furnished.
(b) Noteholders
may communicate with other Noteholders with respect to their rights under this
Indenture or under the Notes.
Section
7.03 Financial
Information. For so long as any of the Notes bearing a
restrictive legend remains outstanding and is a “restricted security” within the
meaning of Rule 144(a)(3) under the Securities Act, the Issuing Entity shall,
during any period in which it is not subject to Section 13 or 15(d) of the
Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) under such
Act, cause the Securities Administrator to make available to any Holder of
any
such Note in connection with any sale thereof and to any prospective purchaser
of any such Note from such Holder, in each case upon request, the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
Securities Act that is in the Securities Administrator’s possession or
reasonably obtainable by it, if requested, from the Master Servicer (and to
the
extent such information is in the Master Servicer’s possession or is reasonably
obtainable by it from the Servicer).
Unless
the Issuing Entity otherwise determines, the fiscal year of the Issuing Entity
shall end on December 31 of each year.
Section
7.04 Statements
to Noteholders. (a) With respect to each Payment Date,
the Securities Administrator shall make available via the Securities
Administrator’s website, initially located at xxx.xxxxxxx.xxx, to each
Noteholder and each Certificateholder, the Depositor, the Issuing Entity, the
Seller, the Owner Trustee, the Securities Administrator and the Rating Agencies,
a statement setting forth the following information as to the Notes, to the
extent applicable:
(i) the
applicable Record Dates, accrual periods and Determination Dates for calculating
payments and general Payment Dates;
(ii) with
respect to each Loan Group, the total cashflows received and the general sources
thereof;
(iii) the
amount, if any, of fees or expenses accrued and paid with an identification
of
the payee and the general purpose of such fees including the related amount
of
the Servicing Fees paid to or retained by the related Servicer for the related
Due Period;
(iv) the
amount of the related distribution to holders of the Notes (by Class) allocable
to principal, separately identifying (A) the aggregate amount of any Principal
Prepayments included therein and (B) the aggregate of all scheduled payments
of
principal included therein;
(v) the
Current Principal Balance of the Notes before and after giving effect to the
distribution of principal and allocation of Realized Losses on such Payment
Date;
(vi) with
respect to each Loan Group, the number and Scheduled Principal Balance of all
the Mortgage Loans for the following Payment Date, together with updated pool
composition information;
(vii) the
Note
Interest Rates for each class of Notes for such Payment Date;
(viii) the
amounts held in the Reserve Fund;
(ix) with
respect to any mortgage loan that was liquidated during the preceding calendar
month, the loan number and Scheduled Principal Balance of, and Realized Loss
on,
such mortgage loan as of the end of the prior calendar month;
(x) with
respect to each Loan Group, the total number and principal balance of any real
estate owned, or REO, properties as of the end of the prior calendar
month;
(xi) with
respect to each Loan Group, the cumulative Realized Losses through the end
of
the preceding month;
(xii) with
respect to each Loan Group, the number and aggregate outstanding Scheduled
Principal Balance of the mortgage loans, using the MBA method of calculation,
that are, (1) 30 days delinquent, (2) 60 days delinquent and (3) 90 days or
more
delinquent, in each case as of the close of business on the last day of the
calendar month preceding such Payment Date;
(xiii) with
respect to each Loan Group and if applicable, material modifications, extensions
or waivers to pool asset terms, fees, penalties or payments during the payment
period or that have become material over time; and
(xiv) with
respect to each Loan Group and if applicable, the special hazard amount, fraud
loss amount and bankruptcy amount, if applicable, as of the close of business
on
the applicable Payment Date.
The
Securities Administrator may conclusively rely upon the information provided
by
the Master Servicer to the Securities Administrator in its preparation of
monthly statements to Noteholders.
The
Securities Administrator will make the monthly statements provided for in this
section (and, at its option, any additional files containing the same
information in an alternative format) available each month to Noteholders,
each
Noteholder and each Certificateholder, the Depositor, the Issuing Entity, the
Seller, the Owner Trustee and the Rating Agencies via the Securities
Administrator's website. The Securities Administrator’s website shall
initially be located at “xxx.xxxxxxx.xxx.” Assistance in using the website can
be obtained by calling the Securities Administrator’s customer service desk at
(000) 000-0000. Parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by calling
the
Securities Administrator’s customer service desk and indicating
such. The Securities Administrator may have the right to change the
way the monthly statements are distributed in order to make such distribution
more convenient and/or more accessible to the above parties and the Securities
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes.
The
Securities Administrator shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the monthly statement, and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
ARTICLE
VIII
ACCOUNTS,
DISBURSEMENTS AND RELEASES
Section
8.01 Collection
of Money. Except as otherwise expressly provided herein, the
Securities Administrator 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 Securities Administrator pursuant to this Indenture. The Securities
Administrator shall apply all such money received by it as provided in this
Indenture. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event
of
Default under this Indenture and any right to proceed thereafter as provided
in
Article V.
Section
8.02 Officer’s
Certificate. The Indenture Trustee and the Securities
Administrator shall receive at least seven Business Days’ notice when requested
by the Issuing Entity to take any action pursuant to Section 8.07 hereof,
accompanied by copies of any instruments to be executed, and the Indenture
Trustee shall also require, as a condition to such action, an Officer’s
Certificate, in form and substance 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.
Section
8.03 Termination
Upon Distribution to Noteholders. This Indenture and the
respective obligations and responsibilities of the Issuing Entity, the
Securities Administrator and the Indenture Trustee created hereby shall
terminate upon the distribution to Noteholders, Certificateholders, the
Securities Administrator and the Indenture Trustee of all amounts required
to be
distributed pursuant to Article III; provided, however, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Section
8.04 Termination
Upon REMIC Conversion. Notwithstanding anything to the contrary herein, this
Indenture and the respective obligations and responsibilities of the Issuer,
the
Securities Administrator and the Indenture Trustee created hereby shall
terminate upon the surrender of Notes by the Holders thereof in exchange for
the
corresponding classes of REMIC Class A Notes and REMIC Privately Offered
Certificates in connection with the REMIC Conversion pursuant to Section 8.06
below and Article XI hereof and the discharge of this Indenture pursuant to
Section 4.10 hereof.
Section
8.05 Release
of Trust Estate. (a) Subject to the payment of its
fees and expenses, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property
from
the lien of this Indenture, or convey the Indenture Trustee’s interest in the
same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture, including for the purposes of any purchase of
a
Mortgage Loan by the Majority Certificateholder pursuant to Section 8.07 of
this
Indenture and for the purposes of consummating a REMIC Conversion. No
party relying upon an instrument executed by the Indenture Trustee as provided
in Article VIII hereunder shall be bound to ascertain the Indenture Trustee’s
authority, inquire into the satisfaction of any conditions precedent, or see
to
the application of any monies.
(b) The
Indenture Trustee shall, at such time as (i) it is notified by the Securities
Administrator that there are no Notes Outstanding and (ii) all sums then due
and
unpaid to the Indenture Trustee pursuant to this Indenture have been paid,
release any remaining portion of the Trust Estate that secured the Notes from
the lien of this Indenture.
(c) The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.05 only upon receipt of a request from the Issuing
Entity or in conjunction with a Sale or other transfer of such property required
to occur in connection with a REMIC Conversion, as described in Section 11.01
hereof.
Section
8.06 Surrender
of Notes Upon Final Payment or Receipt of REMIC Securities. By acceptance of
any Note, the Holder thereof agrees to surrender such Note to the Securities
Administrator promptly prior to such Noteholder’s receipt of the final payment
thereon or promptly upon receipt of the corresponding class of REMIC Class
A
Note or REMIC Privately Offered Certificate in connection with a REMIC
Conversion as described in Article XI hereof.
Section
8.07 Optional
Redemption of the Mortgage Loans. (a) The Majority
Certificateholder shall have the option to purchase the assets of the Trust
and
thereby cause the redemption of the Notes, in whole, but not in part, on or
after the Payment Date on which the aggregate Scheduled Principal Balance of
the
Mortgage Loans as of the end of the prior Due Period is less than 10% of the
Cut-off Date Balance. The aggregate redemption price (the “Redemption
Price”) for the Notes will be equal to 100% of the aggregate outstanding Note
Principal Balance of the Notes as of the Payment Date on which the proposed
redemption will take place in accordance with the foregoing, together with
accrued and unpaid interest thereon at the applicable Note Interest Rate through
such Payment Date (including any related Net Interest Shortfall and Basis Risk
Shortfall Carryover Amount), plus an amount sufficient to pay in full all
amounts owing to the Indenture Trustee, the Master Servicer and the Securities
Administrator, pursuant to any Basic Document (which amounts shall be specified
in writing upon request of the Issuing Entity, the Indenture Trustee, the Master
Servicer and the Securities Administrator, as applicable).
(b) In
order
to exercise the foregoing option, the Majority Certificateholder shall provide
written notice of its exercise of such option to the Securities Administrator,
the Issuing Entity, the Owner Trustee and the Master Servicer at least 15 days
prior to its exercise. Following receipt of the notice, the Securities
Administrator shall provide written notice to the Noteholders of the final
payment on the Notes. In addition, the Majority Certificateholder shall, not
less than one Business Day prior to the proposed Payment Date on which such
redemption is to be made, deposit the Redemption Price specified in (a) above
with the Securities Administrator, who shall deposit the Redemption Price into
the Payment Account and shall, on the Payment Date after receipt of the funds,
apply such funds to make final payments of principal and interest on the Notes
in accordance with Section 3.03 hereof and payment to the Securities
Administrator and the Master Servicer as set forth in (a) above, and this
Indenture shall be discharged subject to the provisions of Section 4.10 hereof.
If for any reason the amount deposited by the Majority Certificateholder is
not
sufficient to make such redemption or such redemption cannot be completed for
any reason, (a) the amount so deposited by the Majority Certificateholder with
the Securities Administrator shall be immediately returned to the Majority
Certificateholder in full and shall not be used for any other purpose or be
deemed to be part of the Trust Estate and (b) the Note Principal Balance of
the
Notes shall continue to bear interest at the related Note Interest
Rate.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental
Indentures Without Consent of Noteholders. (a) Without
the consent of the Holders of any Notes but with prior notice to the Rating
Agencies, the Issuing Entity, the Indenture Trustee and the Securities
Administrator, when authorized by an Issuer Request, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Indenture Trustee and the Securities Administrator, for
any
of the following purposes:
(i) to
correct or amplify the description of any property at any time subject to the
lien of this Indenture, or better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to be subjected to the lien
of this Indenture, or to subject to the lien of this Indenture additional
property;
(ii) to
evidence the succession, in compliance with the applicable provisions hereof,
of
another person to the Issuing Entity, and the assumption by any such successor
of the covenants of the Issuing Entity herein and in the Notes
contained;
(iii) to
add to
the covenants of the Issuing Entity, for the benefit of the Holders of the
Notes, or to surrender any right or power herein conferred upon the Issuing
Entity;
(iv) to
convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee;
(v) to
cure
any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision herein,
in the Prospectus Supplement or in any supplemental indenture;
(vi) to
revise
any provisions to reflect the obligations of the parties to this Agreement
as
they relate to Regulation AB,
(vii) to
make
any other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that such action shall
not
materially and adversely affect the interests of the Holders of the Notes;
provided further, that such supplemental indenture will be deemed to not
materially and adversely affect the interests of the Holders of the Notes if
a
Rating Confirmation is received with respect to such supplemental
indenture;
(viii) to
evidence and provide for the acceptance of the appointment hereunder by a
successor trustee with respect to the Notes and to add to or change any of
the
provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to
the
requirements of Article VI hereof;
(ix) to
reduce
the rating requirements in clause (i) of the definition of Eligible Accounts
in
Appendix A to this Indenture; or
(x) to
modify, eliminate or add to the provisions hereof to such extent as shall be
necessary to effect, facilitate or reinforce a REMIC Conversion and all
activities related thereto or required therefor;
provided,
however, that no such indenture supplements shall be entered into unless
the Indenture Trustee and the Securities Administrator shall have received
(A)
an Opinion of Counsel not at the expense of the Indenture Trustee or
the Securities Administrator as to the enforceability of any such indenture
supplement and to the effect that (i) such indenture supplement is permitted
hereunder and such indenture supplement will not materially and adversely affect
the Holders of the Notes (other than in the case of clause (viii) above) and
(ii) entering into such indenture supplement will not result in a “significant
modification” of the Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class
III-A-1, Class III-A-2, Class IV-A-1 and Class IV-A-2 Notes and any other
Classes of Notes with respect to which a "will be debt" opinion has been
rendered by nationally recognized tax counsel and furnished to the Securities
Administrator under Treasury Regulation Section 1.1001-3 (other than in the
case
of clause (x) above) or adversely affect the indebtedness status of such Notes
or (B) the Depositor obtains a letter from each Rating Agency stating that
such
supplemental indenture would not result in the downgrading or withdrawal of
the
respective ratings then assigned to the Notes.
The
Indenture Trustee and the Securities Administrator are hereby authorized to
join
in the execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein
contained.
(b) The
Issuing Entity, the Securities Administrator and the Indenture Trustee, when
authorized by an Issuer Request, in the case of the Securities Administrator
and
the Indenture Trustee may, also without the consent of any of the Holders of
the
Notes and prior notice to the Rating Agencies, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to,
or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under
this
Indenture; provided, however, that such action as evidenced by an Opinion of
Counsel addressed to the Indenture Trustee, the Securities Administrator and
the
Owner Trustee, (i) is permitted by this Indenture, (ii) shall not adversely
affect in any material respect the interests of any Noteholder (in lieu of
this
opinion, the Depositor may obtain a letter from each Rating Agency stating
that
such supplemental indenture would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Notes) and (iii) shall not cause
the
Issuing Entity to be subject to an entity level tax for federal income tax
purposes.
Section
9.02 Supplemental
Indentures With Consent of Noteholders. The Issuing Entity, the
Securities Administrator and the Indenture Trustee, when authorized by an Issuer
Request in the case of the Securities Administrator and the Indenture Trustee,
also may, with prior notice to the Rating Agencies and, with the consent Holders
of not less than a majority of the Note Principal Balance of each Class of
Notes
affected thereby, by Act (as defined in Section 10.03 hereof) of such Holders
delivered to the Issuing Entity, the Securities Administrator and the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however,
that
no such supplemental indenture shall, without the consent of the Holder of
each
Note affected thereby:
(i) change
the date of payment of any installment of principal of or interest on any Note,
or reduce the principal amount thereof or the interest rate thereon, change
the
provisions of this Indenture relating to the application of collections on,
or
the proceeds of the sale of, the Trust Estate and to payment of principal of
or
interest on the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article
V,
to the payment of any such amount due on the Notes on or after the respective
due dates thereof;
(ii) reduce
the percentage of the Note Principal Balances of the Notes, or any Class of
Notes, the consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any waiver
of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(iii) modify
or
alter the provisions of the proviso to the definition of the term “Outstanding”
or modify or alter the exception in the definition of the term
“Holder”;
(iv) reduce
the percentage of the Note Principal Balances of the Notes, or any Class of
Notes, required to direct the Indenture Trustee to direct the Issuing Entity
to
sell or liquidate the Trust Estate pursuant to Section 5.04 hereof;
(v) modify
any provision of this Section 9.02 except to increase any percentage specified
herein or to provide that certain additional provisions of this Indenture or
the
Basic Documents cannot be modified or waived without the consent of the Holder
of each Note affected thereby;
(vi) modify
any of the provisions of this Indenture in such manner as to affect the
calculation of the amount of any payment of interest or principal due on any
Note on any Payment Date (including the calculation of any of the individual
components of such calculation); or
(vii) permit
the creation of any lien ranking prior to or on a parity with the lien of this
Indenture with respect to any part of the Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note of the
security provided by the lien of this Indenture;
and
provided, further, that such action shall not, as evidenced by an
Opinion of Counsel addressed to the Indenture Trustee, the Securities
Administrator and the Owner Trustee, cause the Issuing Entity to be subject
to
an entity level tax for federal income tax purposes.
Any
such
action shall not adversely affect in any material respect the interest of any
Holder (other than a Holder who shall consent to such supplemental indenture)
as
evidenced by an Opinion of Counsel (provided by the Person requesting such
supplemental indenture) delivered to the Indenture Trustee and the Securities
Administrator.
It
shall
not be necessary for any Act of Noteholders under this Section 9.02 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Promptly
after the execution by the Issuing Entity, the Securities Administrator and
the
Indenture Trustee of any supplemental indenture pursuant to this Section 9.02,
the Securities Administrator shall mail to the Holders of the Notes to which
such amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the
Securities Administrator 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 permitting the
additional trusts created by, any supplemental indenture permitted by this
Article IX or the modification thereby of the trusts created by this Indenture,
the Indenture Trustee and the Securities Administrator shall be entitled to
receive, and subject to Sections 6.01 and 6.02 hereof, shall be fully protected
in relying upon, an Opinion of Counsel not at the expense of the Indenture
Trustee or the Securities Administrator stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee and the Securities Administrator each may, but shall not
be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee’s or the Securities Administrator’s own rights, duties,
liabilities or immunities under this Indenture or otherwise.
Section
9.04 Effect
of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and shall
be deemed to be modified and amended in accordance therewith with respect to
the
Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Securities Administrator, the Issuing Entity and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and
all
purposes.
Section
9.05 Conformity
with Trust Indenture Act. Every amendment of this Indenture and
every supplemental indenture executed pursuant to this Article IX shall conform
to the requirements of the Trust Indenture Act as then in effect so long as
this
Indenture shall then be qualified under the Trust Indenture Act.
Section
9.06 Reference
in Notes to Supplemental Indentures. Notes authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article IX may, and if required by the Securities Administrator shall, bear
a
notation in form approved by the Securities Administrator as to any matter
provided for in such supplemental indenture. If the Issuing Entity or the
Securities Administrator shall so determine, new Notes so modified as to
conform, in the opinion of the Securities Administrator and the Issuing Entity,
to any such supplemental indenture may be prepared and executed by the Issuing
Entity and authenticated and delivered by the Securities Administrator in
exchange for Outstanding Notes.
ARTICLE
X
MISCELLANEOUS
Section
10.01 Compliance
Certificates and Opinions, etc. (a) Upon any
application or request by the Issuing Entity to the Indenture Trustee or the
Securities Administrator to take any action under any provision of this
Indenture, the Issuing Entity shall furnish to the Indenture Trustee and the
Securities Administrator (i) an Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and (ii) an Opinion of Counsel 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, no additional certificate or opinion need be
furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a
statement that each signatory of such certificate or opinion has read or has
caused to be read such covenant or condition and the definitions herein relating
thereto;
(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 or opinion are
based;
(3) a
statement that, in the opinion of each such signatory, such signatory has made
such examination or investigation as is necessary to enable such signatory
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with;
(4) a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with; and
(5) if
the
signatory of such certificate or opinion is required to be Independent, the
statement required by the definition of the term “Independent”.
(b) (i)
Prior
to the deposit of any Collateral or other property or securities with the
Indenture Trustee that is to be made the basis for the release of any property
or securities subject to the lien of this Indenture, the Issuing Entity shall,
in addition to any obligation imposed in Section 10.01 (a) or elsewhere in
this
Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying
or stating the opinion of each person signing such certificate as to the fair
value (within 90 days prior to such deposit) to the Issuing Entity of the
Collateral or other property or securities to be so deposited and a report
from
a nationally recognized accounting firm verifying such value.
(ii) Whenever
the Issuing Entity is required to furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuing Entity shall also deliver
to
the Indenture Trustee an Independent Certificate from a nationally recognized
accounting firm as to the same matters, if the fair value of the securities
to
be so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then current fiscal year
of
the Issuing Entity, as set forth in the certificates delivered pursuant to
clause (i) above and this clause (ii), is 10% or more of the Note Principal
Balances of the Notes, but such a certificate need not be furnished with respect
to any securities so deposited, if the fair value thereof as set forth in the
related Officer’s Certificate is less than $25,000 or less than one percent of
the then outstanding Note Principal Balances of the Notes.
(iii) Whenever
any property or securities are to be released from the lien of this Indenture,
the Issuing Entity shall also furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days prior to such release) of
the
property or securities proposed to be released and stating that in the opinion
of such person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever
the Issuing Entity is required to furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of any signer thereof as to the
matters described in clause (iii) above, the Issuing Entity shall also furnish
to the Indenture Trustee an Independent Certificate as to the same matters
if
the fair value of the property or securities and of all other property or
securities released from the lien of this Indenture since the commencement
of
the then-current calendar year, as set forth in the certificates required by
clause (iii) above and this clause (iv), equals 10% or more of the Note
Principal Balances of the Notes, but such certificate need not be furnished
in
the case of any release of property or securities if the fair value thereof
as
set forth in the related Officer’s Certificate is less than $25,000 or less than
one percent of the then outstanding Note Principal Balances of the
Notes.
Section
10.02 Form
of Documents Delivered to Indenture Trustee or the Securities
Administrator. In any case where several matters are required to
be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any
certificate or opinion of an Authorized Officer of the Issuing Entity may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of,
or representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based
are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or
opinion of, or representations by, an officer or officers of the Seller or
the
Issuing Entity, stating that the information with respect to such factual
matters is in the possession of the Seller or the Issuing Entity, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Whenever
in this Indenture, in connection with any application or certificate or report
to the Indenture Trustee, it is provided that the Issuing Entity shall deliver
any document as a condition of the granting of such application, or as evidence
of the Issuing Entity’s compliance with any term hereof, it is intended that the
truth and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of the Issuing Entity to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however,
be
construed to affect the Indenture Trustee’s right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section
10.03 Acts
of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by
such Noteholders in person or by agents duly appointed in writing; and except
as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuing Entity. Such instrument
or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Indenture
Trustee and the Issuing Entity, if made in the manner provided in this Section
10.03 hereof.
(b) The
fact
and date of the execution by any person of any such instrument or writing may
be
proved in any manner that the Indenture Trustee deems sufficient.
(c) The
ownership of Notes shall be proved by the Note Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
Trustee, the Securities Administrator or the Issuing Entity in reliance thereon,
whether or not notation of such action is made upon such Note.
Section
10.04 Notices
etc., to Indenture Trustee Issuing Entity, Securities Administrator and Rating
Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or permitted
by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or act of Noteholders is
to be
made upon, given or furnished to or filed with:
(i) the
Indenture Trustee by any Noteholder, by the Securities Administrator or by
the
Issuing Entity shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Indenture Trustee at the Corporate
Trust Office. The Indenture Trustee shall promptly transmit any notice received
by it from the Noteholders to the Issuing Entity;
(ii) the
Securities Administrator by any Noteholder, by the Indenture Trustee or by
the
Issuing Entity shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Securities Administrator at Xxxxx
Fargo Bank, N.A., P.O. Box 98, Columbia Maryland 21046 (or, in the case of
overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attn:
Bear Xxxxxxx ARM Trust 2007-2, or such other address as may hereafter be
furnished to the other parties hereto in writing. The Securities Administrator
shall promptly transmit any notice received by it from the Noteholders to the
Issuing Entity; or
(iii) the
Issuing Entity by the Indenture Trustee, the Securities Administrator or by
any
Noteholder shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing and mailed first-class, postage prepaid to the
Issuing Entity addressed to: Bear Xxxxxxx ARM 2007-2, in care of Wilmington
Trust Company, Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000; Attention: Corporate Trust Services, or at any
other address previously furnished in writing to the Indenture Trustee by the
Issuing Entity. The Issuing Entity shall promptly transmit any notice received
by it from the Noteholders to the Indenture Trustee.
Notices
required to be given to the Rating Agencies by the Issuing Entity, the Indenture
Trustee, the Securities Administrator or the Owner Trustee shall be in writing,
mailed first-class postage pre-paid: in the case of Moody’s, to Moody’s, at the
following address: Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; in the case of Fitch, Xxx Xxxxx Xxxxxx Xxxxx - 00xx Xxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, in the case of Standard & Poor’s, 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other
parties.
Section
10.05 Notices
to Noteholders; Waiver. Where this Indenture provides for notice
to Noteholders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if made, given, furnished or filed in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by
such event, at such Person’s address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so
mailed to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Noteholders shall be filed with the Indenture Trustee but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.
In
case,
by reason of the suspension of regular mail service as a result of a strike,
work stoppage or similar activity, it shall be impractical to mail notice of
any
event to Noteholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall
be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving
of such notice.
Where
this Indenture provides for notice to the Rating Agencies, failure to give
such
notice shall not affect any other rights or obligations created hereunder,
and
shall not under any circumstance constitute an Event of Default.
Section
10.06 Conflict
with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof that is required to be
included in this Indenture by any of the provisions of the Trust Indenture
Act,
such required provision shall control.
The
provisions of TIA §§ 310 through 317 that impose duties on any Person (including
the provisions automatically deemed included herein unless expressly excluded
by
this Indenture) are a part of and govern this Indenture, whether or not
physically contained herein.
Section
10.07 Effect
of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section
10.08 Successors
and Assigns. All covenants and agreements in this Indenture and
the Notes by the Issuing Entity shall bind its successors and assigns, whether
so expressed or not. All agreements of the Indenture Trustee in this Indenture
shall bind its successors, co-trustees and agents.
Section
10.09 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
10.10 Legal
Holidays. In any case where the date on which any payment is due
shall not be a Business Day, then (notwithstanding any other provision of the
Notes or this Indenture) payment need not be made on such date, but may be
made
on the next succeeding Business Day with the same force and effect as if made
on
the date on which nominally due, and no interest shall accrue for the period
from and after any such nominal date.
Section
10.11 GOVERNING
LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAWS, WHICH SHALL APPLY HERETO), AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section
10.12 Counterparts. This
Indenture may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
10.13 Recording
of Indenture. If this Indenture is subject to recording in any
appropriate public recording offices, such recording is to be effected by the
Issuing Entity and at its expense accompanied by an Opinion of Counsel at its
expense (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any
other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
Section
10.14 Issuing
Entity Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuing Entity, the Owner
Trustee or the Securities Administrator 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 Issuing Entity or
(iii)
any partner, owner, beneficiary, agent, officer, director, employee or agent
of
the Securities Administrator, the Owner Trustee in its individual capacity,
any
holder of a beneficial interest in the Issuing Entity, the Securities
Administrator, 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 Issuing Entity hereunder,
the Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Article VI, VII and VIII of the Trust
Agreement.
Section
10.15 No
Petition. The Indenture Trustee and the Securities Administrator,
by entering into this Indenture, each Noteholder, by accepting a Note and each
Certificateholder, by accepting a Certificate, hereby covenant and agree that
they will not at any time prior to one year from the date of termination hereof,
institute against the Depositor or the Issuing Entity, or join in any
institution against the Depositor or the Issuing Entity of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under 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; provided however, that nothing herein shall prohibit
the
Indenture Trustee from filing proofs of claim in any proceeding.
Section
10.16 Inspection. The
Issuing Entity agrees that, at its expense, on reasonable prior notice, it
shall
permit any representative of the Indenture Trustee or the Securities
Administrator, during the Issuing Entity’s normal business hours, to examine all
the books of account, records, reports and other papers of the Issuing Entity,
to make copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Issuing Entity’s
affairs, finances and accounts with the Issuing Entity’s officers, employees,
and Independent certified public accountants, all at such reasonable times
and
as often as may be reasonably requested. The Indenture Trustee shall cause
its
representatives to hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee or the Securities Administrator may reasonably determine
that
such disclosure is consistent with its obligations hereunder.
ARTICLE
XI
TMP
TRIGGER EVENT AND REMIC CONVERSION
Section
11.01 Events
to Occur Upon TMP Trigger Event and Prior to REMIC Conversion. (a) Upon the
receipt by the Owner Trustee, the Depositor, the Securities Administrator and
the Indenture Trustee of a certification substantially in the form of Exhibit
F
hereto in connection with a proposed transfer of any Privately Offered Notes
or
Certificates certifying that such transfer will cause a TMP Trigger Event,
the
following actions shall be promptly taken by the parties identified below in
preparation for a REMIC Conversion:
(i) the
Issuing Entity shall direct the Master Servicer (A) to cause the related
Servicer, pursuant to the Sale and Servicing Agreement and the related Servicing
Agreement, to purchase from the Issuing Entity (or with respect to the Mortgage
Loans serviced by Xxxxx Fargo but not originated by the Xxxxx Fargo, to purchase
on behalf of the Depositor, if so requested by the Depositor), or on behalf
of
the Issuing Entity to sell to a third party, any REO Property and other
Non-REMIC-Eligible Assets at their then fair market values, and remit the
proceeds used for such purchase or collected from such sale to the Master
Servicer, and (B) to remit such proceeds received from the related Servicer
to
the Securities Administrator for deposit in the Payment Account;
(ii) the
Issuing Entity shall direct the Indenture Trustee to execute instruments to
release the REO Properties and other Non-REMIC-Eligible Assets liquidated
pursuant to clause (i) above from the lien of this Indenture in accordance
with
Section 8.05 and on behalf of the Issuing Entity to transfer such portion of
the
Trust Estate to the related Servicer;
(iii) the
Issuing Entity shall determine the extent to which, if any, that the purchase
price of the REO Properties and Non-REMIC-Eligible Assets liquidated pursuant
to
clause (i) above would result in the allocation of a Realized Loss to any Class
of Notes, and shall require the proposed transferor or proposed transferee
of
the Privately Offered Notes or Certificates causing the TMP Trigger Event to,
and such proposed transferor or proposed transferee hereby agrees to, contribute
the amount of any such Realized Loss to the Issuing Entity;
(iv) the
Issuing Entity shall require the proposed transferor of the Privately Offered
Notes causing the TMP Trigger Event to, and such proposed transferor or proposed
transferee hereby agrees to, make provisions for payment satisfactory to the
Owner Trustee, the Securities Administrator, the Seller and the Indenture
Trustee and any other relevant party for any initial or ongoing administrative
expenses (including the reasonable fees and expenses of their respective counsel
and other professional advisors) associated with the REMIC Conversion and any
REMIC created thereby and for any taxes possibly payable as a result of the
classification of the Issuing Entity for federal income tax purposes as a
“taxable mortgage pool”;
(v) On
the
Special Payment Date, the Securities Administrator shall distribute the proceeds
from the liquidation of the REO Properties and Non-REMIC-Eligible Assets
pursuant to clause (i) above to the related Noteholders in the manner and order
of priority set forth for the distribution of Available Funds in Article III;
and
(vi) the
Issuing Entity shall provide to each of the Rating Agencies prior written notice
of the TMP Trigger Event and impending REMIC Conversion and drafts of new
documents relating to the REMIC Conversion and any REMIC created thereby,
including, but not limited to, legal opinions described in Section
11.02(a)(vi).
Section
11.02 REMIC
Conversion. (a) Upon the satisfaction of each of the requirements set forth
in Section 11.01 above, the following actions shall be promptly taken by the
parties identified below to consummate the REMIC Conversion (each such action
to
be deemed to occur simultaneously):
(i) Each
of
the parties to the new documents relating to the REMIC Conversion and any REMIC
created thereby, including, but not limited to, the REMIC Class A Indenture
and
the Underlying REMIC Trust Pooling and Servicing Agreement, shall execute and
complete such documents;
(ii) Pursuant
to the Underlying Trust REMIC Pooling and Servicing Agreement, the Issuing
Entity shall cause the formation of the new Underlying REMIC Trust, the
contribution to such Underlying REMIC Trust of the then remaining assets in
the
Trust Estate, the making of one or more REMIC elections with respect to all
or a
portion of such assets and the issuance to it of new REMIC Certificates by
such
Underlying REMIC Trust in physical form with denominations similar to that
specified for the Class of Notes with the corresponding designations as provided
in Section 4.01 hereof;
(iii) Pursuant
to the REMIC Class A Indenture, the Issuing Entity shall cause a REMIC election
to be made with respect to the REMIC Class A Certificates received from the
Underlying REMIC Trust pursuant to clause (ii) above and issue new REMIC Class
A
Notes secured by such REMIC Class A Certificates in book-entry form to be
registered in the name of a nominee designated by the Depository with
denominations similar to that specified for the Class of Class A Notes with
the
corresponding designations as provided in Section 4.01 hereof;
(iv) Pursuant
to Section 8.06 hereof, the Issuing Entity shall require the Holders of the
Class A Notes to surrender their Notes in exchange for the corresponding classes
of the REMIC Class A Notes newly issued by the Issuing Entity pursuant to clause
(iii) above and require the Holders of the Class X Notes and Class B Notes
to
surrender their Notes in exchange for the corresponding classes of the REMIC
Privately Offered Certificates received from the Underlying REMIC Trust pursuant
to clause (ii) above;
(v) Pursuant
to Sections 4.10 and 8.04 hereof, this Indenture shall be discharged, and the
assets remaining in the Trust Estate shall be released from the lien of this
Indenture; and
(vi) The
Issuing Entity shall cause Opinions of Counsel (at the expense of the proposed
transferor or proposed transferee of the Privately Offered Notes or Certificates
causing the TMP Trigger Event) to be rendered to the Owner Trustee, the
Depositor, the Securities Administrator, the Rating Agencies and the Indenture
Trustee stating, among other things, that for federal income tax purposes each
REMIC created under the Underlying REMIC Trust Agreement and REMIC Class A
Indenture will qualify as a “real estate mortgage investment conduit” and each
REMIC Security will qualify as a “regular interest” in a REMIC.
Section
11.03 Acts
in Furtherance of REMIC Conversion. Each of the parties hereto acknowledges
and agrees that the purpose of this Article XI is to facilitate a REMIC
Conversion upon notice of a TMP Trigger Event. Therefore, each of the
parties hereto agree that it shall comply with reasonable requests made by
any
of the other parties hereto or the proposed transferor or proposed transferee
of
the Privately Offered Notes or Certificates causing the TMP Trigger Event to
consummate any such REMIC Conversion, including entering into a REMIC Pooling
and Servicing Agreement and a REMIC Class A Indenture in form and substance
satisfactory to the Owner Trustee, Indenture Trustee, Securities Administrator
and the Depositor. Pursuant to Section 9.01 hereof, this Indenture may be
amended or supplemented at any time as necessary to facilitate, effect or
reinforce the consummation of any such REMIC Conversion.
IN
WITNESS WHEREOF, the Issuing Entity, the Securities Administrator and the
Indenture Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
|
BEAR XXXXXXX
ARM TRUST
2007-2, as
Issuing Entity
|
|||
|
BY:
Wilmington Trust Company, not in its
individual
capacity but solely as Owner Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxxx X. Xxxxx
|
||
| Title: | Vice President | ||
|
XXXXX
FARGO BANK, N.A., as
Securities
Administrator
|
|||
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxx | ||
| Title: | Assistant Vice President | ||
|
Citibank,
N.A., as Indenture Trustee
|
|||
|
|
By:
|
/s/
Xxxxx Xxxx
|
|
| Name: |
Xxxxx
Xxxx
|
||
| Title: | Vice President | ||
|
STATE
OF MARYLAND
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF BALTIMORE
|
)
|
|
On
the
11th day of September 2007 before me, a notary public in and for said State,
personally appeared _______________________, known to me to be a(n)
_______________________of Xxxxx Fargo Bank, N.A., the entity that executed
the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF _____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ___________
|
)
|
|
On
this
11th day of September 2007, before me personally appeared
_______________________ to me known, who being by me duly sworn, did depose
and
say, that he/she is a(n) _______________________ of the Owner Trustee, one
of
the entities described in and which executed the above instrument; and that
he
signed her name thereto by like order.
|
Notary
Public
|
|
|
NOTARY
PUBLIC
|
[NOTARIAL
SEAL]
|
STATE
OF __________________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ________________
|
)
|
|
On
this
11th day of September 2007, before me personally appeared
_______________________ to me known, who being by me duly sworn, did depose
and
say, that she is a(n) _______________________ of the Indenture Trustee, one
of
the corporations described in and which executed the above instrument; and
that
he signed his name thereto by like order.
|
Notary
Public
|
|
NOTARY
PUBLIC
|
[NOTARIAL
SEAL]
EXHIBIT
A-1
FORM
OF
CLASS A NOTES
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE SECURITIES ADMINISTRATOR 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
HOLDER OF THIS NOTE OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE DEEMED
TO
HAVE MADE THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF THE
INDENTURE.
THIS
NOTE IS A NON-RECOURSE OBLIGATION OF THE ISSUING ENTITY, AND IS LIMITED IN
RIGHT
OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE
INDENTURE REFERRED TO BELOW. THE ISSUING ENTITY IS NOT OTHERWISE PERSONALLY
LIABLE FOR PAYMENTS ON THIS NOTE.
PRINCIPAL
OF THIS NOTE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
BY
ACCEPTANCE OF THIS NOTE, THE HOLDER HEREOF AGREES TO SURRENDER THIS NOTE TO
THE
SECURITIES ADMINISTRATOR PROMPTLY UPON RECEIPT OF THE CORRESPONDING CLASS OF
REMIC CLASS A NOTES IN CONNECTION WITH A REMIC CONVERSION AS DESCRIBED IN THE
INDENTURE.
BEAR
XXXXXXX ARM TRUST 2007-2
MORTGAGE-BACKED
NOTES, SERIES 2007-2
CLASS
[I][II][III][IV]-A-[1][2]
|
AGGREGATE
NOTE PRINCIPAL
BALANCE:
$[________________]
|
NOTE
INTEREST
RATE:
Adjustable Rate
|
|
INITIAL
NOTE PRINCIPAL
BALANCE
OF THIS NOTE: $[_____________]
|
NOTE
NO. 1
|
|
CUSIP
NO: [_______________]
|
|
BEAR
XXXXXXX ARM TRUST 2007-2 (the “Issuing Entity”), a Delaware statutory trust, for
value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of $[____________________] in monthly installments on the
twenty-fifth day of each month or, if such day is not a Business Day, the next
succeeding Business Day (each a “Payment Date”), commencing in July 2007 and
ending on or before the Payment Date occurring in December 25, 2046 (the “Final
Scheduled Payment Date”) and to pay interest on the Note Principal Balance of
this Note (this “Note”) outstanding from time to time as provided
below.
This
Note
is one of a duly authorized issue of the Issuing Entity’s Mortgage-Backed Notes,
Series 2007-2 (the “Notes”), issued under an Indenture dated as of June 29, 2007
(the “Indenture”), among the Issuing Entity, Xxxxx Fargo Bank, N.A., as
Securities Administrator (the “Securities Administrator”) and Citibank, N.A., as
indenture trustee (the “Indenture Trustee”, which term includes any successor
Indenture Trustee under the Indenture) to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Issuing Entity, the Indenture Trustee, and the Holders
of the Notes and the terms upon which the Notes are to be authenticated and
delivered. All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Payments
of principal and interest on this Note will be made on each Payment Date to
the
Noteholder of record as of the related Record Date. The “Note Principal Balance”
of a Note as of any date of determination is equal to the initial Note Principal
Balance thereof, minus (i) all amounts distributed in respect of principal
with
respect to such Class of Notes, (ii) the aggregate amount of any reductions
in
the Note Principal Balance thereof deemed to have occurred in connection with
allocations of Realized Losses on all prior Payment Dates in accordance with
the
Indenture, taking account of its applicable Loss Allocation Limitation, plus
(iii) any Subsequent Recoveries allocated thereto.
The
principal of, and interest on, this Note are due and payable as described in
the
Indenture, 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 Issuing Entity with respect to this Note shall be equal
to
this Note’s pro rata share of the aggregate payments on all Class
[I][II][III][IV]-A-[1][2] Notes as described above, and shall be applied as
between interest and principal as provided in the Indenture.
All
principal and interest accrued on the Notes, if not previously paid, will become
finally due and payable at the Final Scheduled Payment Date.
The
Mortgage Loans are subject to purchase in whole, but not in part, by the
Majority Certificateholder on any Payment Date on or after the Payment Date
on
which the aggregate Scheduled Principal Balance of the Mortgage Loans is less
than 10% of the aggregate Scheduled Principal Balance of the Mortgage Loans
as
of the Cut-off Date.
The
Issuing Entity 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 will be the sole source of payments on the Class
[I][II][III][IV]-A-[1][2] 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 as provided in the Indenture and (ii)
such Holder shall have no recourse to the Issuing Entity, the Owner Trustee,
the
Indenture Trustee, the Depositor, the Seller, the Master Servicer, the
Securities Administrator or any of their respective affiliates, or to the assets
of any of the foregoing entities, except the assets of the Issuing Entity
pledged to secure the Class [I][II][III][IV]-A-[1][2] Notes
pursuant to the Indenture and the rights conveyed to the Issuing Entity under
the Indenture.
Any
payment of principal or interest payable on this Note which is punctually paid
on the applicable Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the Record Date for such Payment
Date by check mailed to such person’s address as it appears in the Note Register
on such Record Date, except for the final installment of principal and interest
payable with respect to such Note, which shall be payable as provided below.
Notwithstanding the foregoing, upon written request with appropriate
instructions by the Holder of this Note delivered to the Securities
Administrator at least five Business Days prior to the Record Date, 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. All reductions in the principal amount of a Note
effected by payments of principal made on any Payment Date shall be binding
upon
all Holders of this 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 payment of this Note shall be payable
upon presentation and surrender thereof on or after the Payment Date thereof
at
the office designated by the Securities Administrator or the office or agency
of
the Issuing Entity maintained by it for such purpose pursuant to the
Indenture.
Subject
to the foregoing provisions, each Note delivered under the Indenture, upon
registration of transfer of or in exchange for or in lieu of any other Note,
shall carry the right to unpaid principal and interest that were carried by
such
other Note.
If
an
Event of Default as defined in the Indenture shall occur and be continuing
with
respect to the Notes, the Notes may become or be declared due and payable in
the
manner and with the effect provided in the Indenture. If any such acceleration
of maturity occurs prior to the payment of the entire unpaid Note Principal
Balance of the Notes, the amount payable to the Holder of this Note will be
equal to the sum of the unpaid Note Principal Balance of this Note, together
with accrued and unpaid interest thereon as described in the Indenture. The
Indenture provides that, notwithstanding the acceleration of the maturity of
the
Notes, under certain circumstances specified therein, all amounts collected
as
proceeds of the Trust Estate securing the Notes or otherwise shall continue
to
be applied to payments of principal of and interest on the Notes as if they
had
not been declared due and payable.
The
Holder of this Note or Beneficial Owner of any interest herein is deemed to
have
made the representations in Section 4.15 of the Indenture.
By
acceptance of this Note, the Holder hereof agrees to surrender this Note to
the
Securities Administrator promptly upon receipt of the corresponding class of
REMIC Class A Notes in connection with a REMIC Conversion as described in the
Indenture.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note may be registered on the Note Register of the Issuing
Entity. Upon surrender for registration of transfer of, or presentation of
a
written instrument of transfer for, this Note at the office or agency designated
by the Issuing Entity pursuant to the Indenture, accompanied by proper
instruments of assignment in form satisfactory to the Securities Administrator,
one or more new Notes of any authorized denominations and of a like aggregate
then outstanding Note Principal Balance, will be issued to the designated
transferee or transferees.
Prior
to
the due presentment for registration of transfer of this Note, the Issuing
Entity, the Indenture Trustee, the Securities Administrator and any agent of
the
Issuing Entity, the Securities Administrator or the Indenture Trustee may treat
the Person in whose name this Note is registered as the owner of such Note
(i)
on the applicable Record Date for the purpose of making payments and interest
of
such Note, and (ii) on any other date for all other purposes whatsoever, as
the
owner hereof, whether or not this Note be overdue, and none of the Issuing
Entity, the Securities Administrator, the Indenture Trustee nor any such agent
of the Issuing Entity, the Securities Administrator or the Indenture Trustee
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 Issuing Entity
and the rights of the Holders of the Notes under the Indenture at any time
by
the Issuing Entity and the Holders of a majority of each Class of Notes affected
thereby. The Indenture also contains provisions permitting the Holders of Notes
representing not less than a majority of the aggregate Note Principal Balance
of
the Notes, to waive any past Event of Default and its consequences except an
Event of Default (a) with respect to payment of principal of or interest on
any
of the Notes, or (b) in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of each
Note. Any such waiver by the Holder, at the time of the giving thereof, of
this
Note (or any one or more predecessor Notes) shall bind the Holder of every
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 such
Note. The Indenture also permits the Issuing Entity, the Indenture Trustee
and
the Securities Administrator, following prior notice to the Rating Agencies,
to
amend or waive certain terms and conditions set forth in the Indenture without
the consent of the Holders of the Notes issued thereunder.
Initially,
the Notes will be registered in the name of Cede & Co. as nominee of DTC,
acting in its capacity as the Depository for the Notes. The Notes will be
delivered by the clearing agency in denominations as provided in the Indenture
and subject to certain limitations therein set forth. The Notes are exchangeable
for a like aggregate then outstanding Note Principal Balance of Notes of
different authorized denominations, as requested by the Holder surrendering
same.
Unless
the Certificate of Authentication hereon has been executed by the Securities
Administrator by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
Anything
herein to the contrary notwithstanding, except as expressly provided in the
Basic Documents, neither the Owner Trustee in its individual capacity, nor
any
of its respective partners, beneficiaries, agents, officers, directors,
employees, or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest
on,
or performance of, or omission to perform, any of the covenants, obligations
or
indemnifications contained in this Note, it being expressly understood that
said
covenants, obligations and indemnifications have been made solely by the Trust
to the extent of the assets of the Trust. The holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, the Holder shall have no claim against any of the foregoing for
any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Trust Estate for any and all liabilities, obligations and
undertakings contained in this Note.
AS
PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS 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.
IN
WITNESS WHEREOF, the Issuing Entity has caused this instrument to be duly
executed.
Dated:
June 29, 2007
|
BEAR
XXXXXXX ARM TRUST 2007-2
|
|||||||||||||
|
BY:
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely in its
capacity
as Owner Trustee
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
SECURITIES
ADMINISTRATOR’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Class [I][II][III][IV]-A-[1][2] Notes referred to in the
within-mentioned Indenture.
|
BY:
|
XXXXX
FARGO BANK, N.A., as
Securities
Administrator
|
||||||||||||
|
BY
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of the Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
|
TEN
COM
|
--
|
as
tenants in common
|
|
TEN
ENT
|
--
|
as
tenants by the entireties
|
|
JT
TEN
|
--
|
as
joint tenants with right of survivorship and not as tenants in
common
|
|
UNIF
GIFT MIN ACT
|
--
|
____________
Custodian
|
|
(Cust) (Minor)
|
||
|
under
Uniform Gifts to Minor Act
|
||
|
(State)
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
(Please
print or typewrite name and address, including zip code, 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 by __________________________________
NOTICE:
The signature(s) to this assignment must correspond with the name as it appears
upon the face of the within Note in every particular, without alteration or
enlargement or any change whatsoever. Signature(s) must be guaranteed by a
commercial bank or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
EXHIBIT
A-2
FORM
OF
CLASS X NOTES
THIS
NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS I-A-1, CLASS I-A-2, CLASS
II-A-1, CLASS II-A-2, CLASS III-A-1, CLASS III-A-2, CLASS IV-A-1 AND CLASS
IV-A-2 NOTES AS DESCRIBED IN THE INDENTURE.
THIS
NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF THE INDENTURE.
NO
TRANSFER OF THIS NOTE SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 4.15
OF
THE INDENTURE.
NO
TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS NOTE OR INTEREST THEREIN
SHALL BE MADE, AND THE SECURITIES ADMINISTRATOR SHALL REFUSE TO REGISTER
ANY
SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION, UNLESS AND UNTIL (1) THE
PROPOSED TRANSFEREE SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE SECURITIES
ADMINISTRATOR AND THE INDENTURE TRUSTEE (I) IN THE CASE OF A TRANSFER, SALE,
PLEDGE OR DISPOSITION, EXCLUDING A PLEDGE TO SECURE INDEBTEDNESS OR A TRANSFER,
SALE, PLEDGE OR DISPOSITION PURSUANT TO ANY REPURCHASE AGREEMENT (BUT NOT
EXCLUDING A DISPOSITION FOLLOWING A DEFAULT UNDER SUCH INDEBTEDNESS OR
REPURCHASE TRANSACTION), (i) A CERTIFICATE CERTIFYING THAT, FOLLOWING SUCH TRANSFER,
SALE, PLEDGE OR DISPOSITION, THE PROPOSED TRANSFEREE WILL BE EITHER (A) A
SINGLE OWNER OR (B) A PROPORTIONATE OWNER AND (ii)
AN OPINION OF
NATIONALLY RECOGNIZED TAX COUNSEL (WHICH OPINION SHALL NOT BE AN EXPENSE
OF THE
TRUST), ADDRESSED TO THE SECURITIES ADMINISTRATOR, THE OWNER TRUSTEE AND
THE
INDENTURE TRUSTEE, TO THE EFFECT THAT SUCH TRANSFER, SALE, PLEDGE OR
DISPOSITION WILL NOT CAUSE THE TRUST TO BE (X) TREATED AS AN ASSOCIATION
TAXABLE
AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES OR (Y) TAXABLE AS A “PUBLICLY
TRADED PARTNERSHIP” AS DEFINED IN TREASURY REGULATION SECTION 1.7704-1 FOR
FEDERAL INCOME TAX PURPOSES,
(II)
AN
OPINION OF NATIONALLY RECOGNIZED TAX COUNSEL ADDRESSED TO THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE (WHICH OPINION
SHALL
NOT BE AN EXPENSE OF THE TRUST) TO THE EFFECT THAT SUCH
TRANSFER, SALE, PLEDGE OR DISPOSITION WILL NOT CAUSE THE TRUST TO BE
(X)
TREATED
AS AN ASSOCIATION TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES,
(Y) TREATED AS A TAXABLE MORTGAGE POOL FOR FEDERAL INCOME TAX PURPOSES
OR
(Z)
TAXABLE
AS A “PUBLICLY TRADED PARTNERSHIP” AS DEFINED IN TREASURY REGULATION SECTION
1.7704-1 FOR FEDERAL INCOME TAX PURPOSES,
OR
(III) AN
OPINION OF NATIONALLY RECOGNIZED TAX COUNSEL ADDRESSED TO THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE (WHICH OPINION
SHALL
NOT BE AN EXPENSE OF THE TRUST) TO THE EFFECT THAT SUCH TRANSFER,
SALE, PLEDGE OR DISPOSITION WILL CONSTITUTE A TMP TRIGGER EVENT, AND (2)
IN THE CASE OF ANY TRANSFER,
SALE, PLEDGE OR OTHER
DISPOSITION
WITH RESPECT TO WHICH THE PROPOSED TRANSFEREE DELIVERS THE OPINION DESCRIBED
IN
THE IMMEDIATELY PRECEDING CLAUSE (III), THE REMIC CONVERSION ASSOCIATED WITH
SUCH TMP TRIGGER EVENT (AND ALL CONDITIONS PRECEDENT THERETO, INCLUDING THE
CONTRIBUTION TO THE ISSUING ENTITY OR PROVISIONS FOR PAYMENT TO VARIOUS PARTIES
OF CERTAIN ADDITIONAL FUNDS BY SUCH PROPOSED TRANSFEROR OR PROPOSED TRANSFEREE
PURSUANT TO ARTICLE XI OF THE INDENTURE) SHALL HAVE BEEN
CONSUMMATED. NOTWITHSTANDING THE FOREGOING, THIS NOTE MAY BE PLEDGED
TO SECURED INDEBTEDNESS AND MAY BE THE SUBJECT OF REPURCHASE AGREEMENTS TREATED
BY THE ISSUING ENTITY AS SECURED INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES,
PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT, THIS NOTE MAY NOT BE TRANSFERRED
BY
THE RELATED LENDER OR REPURCHASE AGREEMENT COUNTERPARTY UNDER ANY SUCH RELATED
INDEBTEDNESS OR REPURCHASE AGREEMENT UPON A DEFAULT UNDER ANY SUCH INDEBTEDNESS
OR REPURCHASE AGREEMENT, AS APPLICABLE, EXCEPT IN ACCORDANCE WITH THE
FOREGOING.
NO
TRANSFER OF THIS NOTE OR INTEREST THEREIN SHALL BE MADE, AND THE SECURITIES
ADMINISTRATOR SHALL REFUSE TO REGISTER ANY SUCH TRANSFER, UNLESS THE SECURITIES
ADMINISTRATOR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING
AS TO THE PROPOSED TRANSFEREE’S STATUS AS A U.S. PERSON.
THIS
NOTE IS A NON-RECOURSE OBLIGATION OF THE ISSUING ENTITY, AND IS LIMITED IN
RIGHT
OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE
INDENTURE REFERRED TO BELOW. THE ISSUING ENTITY IS NOT OTHERWISE PERSONALLY
LIABLE FOR PAYMENTS ON THIS NOTE.
BY
ACCEPTANCE OF THIS NOTE, THE HOLDER HEREOF AGREES TO SURRENDER THIS NOTE TO
THE
SECURITIES ADMINISTRATOR PROMPTLY UPON RECEIPT OF THE CORRESPONDING CLASS OF
REMIC PRIVATELY OFFERED CERTIFICATES IN CONNECTION WITH A REMIC CONVERSION
AS
DESCRIBED IN THE INDENTURE.
BEAR
XXXXXXX ARM TRUST 2007-2
MORTGAGE-BACKED
NOTES, SERIES 2007-2
CLASS
X
|
AGGREGATE
NOTIONAL AMOUNT: :$[______]
|
NOTE
INTEREST
RATE: Variable
Rate
|
|
INITIAL
NOTIONAL AMOUNT OF THIS NOTE: $[______]
:
|
NOTE
NO. 1
|
|
PERCENTAGE
INTEREST: 100%
|
CUSIP
NO: [______]
|
BEAR
XXXXXXX ARM TRUST 2007-2 (the “Issuing Entity”), a Delaware statutory trust, for
value received, hereby promises to pay to Alesco Loan Holdings, LLC or
registered assigns, interest hereon in monthly installments on the twenty-fifth
day of each month or, if such day is not a Business Day, the next succeeding
Business Day (each a “Payment Date”), commencing in July 2007 and ending on or
before the Payment Date occurring in December 25, 2046 (the “Final Scheduled
Payment Date”) and to pay interest on the Notional Amount of this Note (this
“Note”) outstanding from time to time as provided below.
This
Note
is one of a duly authorized issue of the Issuing Entity’s Mortgage-Backed Notes,
Series 2007-2 (the “Notes”), issued under an Indenture, dated as of June 29,
2007 (the “Indenture”), among the Issuing Entity, Xxxxx Fargo Bank, N.A., as
securities administrator (the “Securities Administrator”) and Citibank, N.A., as
indenture trustee (the “Indenture Trustee”, which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Issuing Entity, the Indenture Trustee and the Holders
of the Notes and the terms upon which the Notes are to be authenticated and
delivered. All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Payments
of interest on this Note will be made on each Payment Date to the Noteholder
of
record as of the related Record Date. The “Notional Amount” of this Note as of
any date of determination shall be calculated as set forth under the
Indenture.
The
interest on this Note are due and payable as described in the Indenture, 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
Issuing Entity with respect to this Note shall be applied as provided in the
Indenture.
The
Mortgage Loans are subject to purchase in whole, but not in part, by the
Majority Certificateholder on any Payment Date on or after the Payment Date
on
which the aggregate Scheduled Principal Balance of the Mortgage Loans is less
than 10% of the aggregate Scheduled Principal Balance of the Mortgage Loans
as
of the Cut-off Date.
By
acceptance of this Note, the Holder hereof agrees to surrender this Note to
the
Securities Administrator promptly upon receipt of the corresponding class of
REMIC Privately Offered Certificates in connection with a REMIC Conversion
as
described in the Indenture.
The
Issuing Entity 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 will be the sole source of payments on the Class X 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 as
provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuing Entity, the Owner Trustee, the Indenture Trustee, the Depositor, the
Seller, the Master Servicer, the Securities Administrator or any of their
respective affiliates, or to the assets of any of the foregoing entities, except
the assets of the Issuing Entity pledged to secure the Class X Notes pursuant
to
the Indenture and the rights conveyed to the Issuing Entity under the
Indenture.
Any
payment of interest payable on this Note which is punctually paid on the
applicable Payment Date shall be paid to the Person in whose name such Note
is
registered at the close of business on the Record Date for such Payment Date
by
check mailed to such person’s address as it appears in the Note Register on such
Record Date, except for the final installment of interest payable with respect
to such Note, which shall be payable as provided below. Notwithstanding the
foregoing, upon written request with appropriate instructions by the Holder
of
this Note delivered to the Securities Administrator at least five Business
Days
prior to the Record Date, any payment of interest, other than the final
installment of interest, shall be made by wire transfer to an account in the
United States designated by such Xxxxxx. All reductions in the principal amount
of a Note (excluding the Class X Notes) effected by payments of principal made
on any Payment Date shall be binding upon all Holders of this 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
payment of this Note shall be payable upon presentation and surrender thereof
on
or after the Payment Date thereof at the Office designated by the Securities
Administrator or the office or agency of the Issuing Entity maintained by it
for
such purpose pursuant to the Indenture.
Subject
to the foregoing provisions, each Note delivered under the Indenture, upon
registration of transfer of or in exchange for or in lieu of any other Note,
shall carry the right to unpaid principal (excluding the Class X Notes) and
interest that were carried by such other Note.
If
an
Event of Default as defined in the Indenture shall occur and be continuing
with
respect to the Notes, the Notes may become or be declared due and payable in
the
manner and with the effect provided in the Indenture. The Indenture provides
that, notwithstanding the acceleration of the maturity of the Notes, under
certain circumstances specified therein, all amounts collected as proceeds
of
the Trust Estate securing the Notes or otherwise shall continue to be applied
to
payments of principal and interest on the Notes as if they had not been declared
due and payable.
The
failure to pay Accrued Note Interest on the Class X Notes, shall not constitute
an Event of Default under the Indenture.
No
transfer, sale, pledge or other disposition of this Note or interest herein
shall be made unless that transfer, sale, pledge or other disposition is exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws, or is otherwise made in accordance
with the Securities Act and such state securities laws. If a transfer
of this Note is to be made without registration under the Securities Act (other
than in connection with the initial issuance thereof or a transfer thereof
by
the Depositor or one of its Affiliates), then the Securities Administrator
shall
refuse to register such transfer unless (i) it receives (and upon receipt,
may
conclusively rely upon) a certificate substantially in the form attached as
Exhibit C to the Indenture or (ii) it receives a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Securities
Administrator and the Indenture Trustee and the transferee executes a
representation letter substantially in the form of Exhibit D attached to the
Indenture, and transferor executes a representation letter substantially in
the
form of Exhibit E attached to the Indenture, each acceptable to and in form
and
substance satisfactory to the Securities Administrator and the Indenture
Trustee. None of the Issuing Entity, the Depositor, the Indenture
Trustee or the Securities Administrator is obligated to register or qualify
any
Notes under the Securities Act or any other securities law or to take any action
not otherwise required under the Indenture to permit the transfer of this Note
or interest herein without registration or qualification. Any
Noteholder desiring to effect a transfer of this Note or interest herein shall,
and does hereby agree to, indemnify the Issuing Entity, the Depositor, the
Owner
Trustee, the Indenture Trustee and the Securities Administrator against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No
transfer of this Class X Note or any interest therein shall be made except
in
accordance with Section 4.15 of the Indenture.
No
transfer, sale, pledge or other disposition of this Class X Note or interest
therein shall be made, and the Securities Administrator shall refuse to register
any such transfer, sale, pledge or other disposition, unless and until (1)
the
proposed transferee shall have delivered to the Owner Trustee, the Securities
Administrator and the Indenture Trustee (I) in the case of a transfer, sale,
pledge or disposition, excluding a pledge to secure indebtedness or a transfer,
sale, pledge or disposition pursuant to any repurchase agreement (but not
excluding a disposition following a default under such indebtedness or
repurchase transaction), (i) a certificate certifying that, following such
transfer, sale, pledge or disposition, the proposed transferee will be either
(A) a Single Owner or (B) a Proportionate Owner and (ii) an opinion of
nationally recognized tax counsel (which opinion shall not be an expense
of the
Trust), addressed to the Securities Administrator, the Owner Trustee and
the
Indenture Trustee, to the effect that such transfer, sale, pledge or
disposition will not cause the Trust to be (x) treated as an association
taxable
as a corporation for federal income tax purposes or (y) taxable as a “publicly
traded partnership” as defined in Treasury Regulation Section 1.7704-1 for
federal income tax purposes, (II) an opinion of nationally recognized tax
counsel addressed to the Securities Administrator, the Owner Trustee and
the
Indenture Trustee (which opinion shall not be an expense of the Trust) to
the
effect that such transfer, sale, pledge or disposition will not cause the
Trust
to be (x) treated as an association taxable as a corporation for federal
income
tax purposes, (y) treated as a taxable mortgage pool for federal income tax
purposes or (z) taxable as a “publicly traded partnership” as defined in
Treasury Regulation Section 1.7704-1 for federal income tax purposes, or
(III)
an opinion of nationally recognized tax counsel addressed to the Securities
Administrator, the Owner Trustee and the Indenture Trustee (which opinion
shall
not be an expense of the Trust) to the effect that such transfer, sale, pledge
or disposition will constitute a TMP Trigger Event, and (2) in the case of
any
transfer, sale, pledge or other disposition with respect to which the proposed
transferee delivers the opinion described in the immediately preceding clause
(III), the REMIC Conversion associated with such TMP Trigger Event (and all
conditions precedent thereto, including the contribution to the Issuing Entity
or provisions for payment to various parties of certain additional funds
by such
proposed transferor or proposed transferee pursuant to Article XI of the
Indenture) shall have been consummated. Notwithstanding the
foregoing, this Class X Note or interest therein may be pledged to secure
indebtedness and may be the subject of repurchase agreements treated by the
Issuing Entity as secured indebtedness for federal income tax purposes, provided
that, for the avoidance of doubt, this Class X Note or interest therein may
not
be transferred by the related lender or repurchase agreement counterparty
under
any such indebtedness or repurchase agreement upon a default under such
indebtedness or repurchase agreement, as applicable, except in accordance
with
the foregoing.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note may be registered on the Note Register of the Issuing
Entity. Upon surrender for registration of transfer of, or presentation of
a
written instrument of transfer for, this Note at the office or agency designated
by the Issuing Entity pursuant to the Indenture, accompanied by proper
instruments of assignment in form satisfactory to the Securities Administrator,
one or more new Notes of any authorized denominations and of a like aggregate
then outstanding Note Principal Balance, will be issued to the designated
transferee or transferees.
Prior
to
the due presentment for registration of transfer of this Note, the Issuing
Entity, the Indenture Trustee, the Securities Administrator and any agent of
the
Issuing Entity, the Securities Administrator or the Indenture Trustee may treat
the Person in whose name this Note is registered as the owner of such Note
(i)
on the applicable Record Date for the purpose of making payments and interest
of
such Note, and (ii) on any other date for all other purposes whatsoever, as
the
owner hereof, whether or not this Note be overdue, and none of the Issuing
Entity, the Securities Administrator, the Indenture Trustee nor any such agent
of the Issuing Entity, the Securities Administrator or the Indenture Trustee
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 Issuing Entity
and the rights of the Holders of the Notes under the Indenture at any time
by
the Issuing Entity and the Holders of a majority of each Class of Notes affected
thereby. The Indenture also contains provisions permitting the Holders of Notes
representing not less than a majority of the aggregate Note Principal Balance
of
the Notes, to waive any past Event of Default and its consequences except an
Event of Default (a) with respect to payment of principal of or interest on
any
of the Notes, or (b) in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of each
Note. Any such waiver by the Holder, at the time of the giving thereof, of
this
Note (or any one or more predecessor Notes) shall bind the Holder of every
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 such
Note. The Indenture also permits the Issuing Entity, the Indenture Trustee
and
the Securities Administrator, following prior notice to the Rating Agencies,
to
amend or waive certain terms and conditions set forth in the Indenture without
the consent of the Holders of the Notes issued thereunder.
The
Notes
are exchangeable for a like aggregate then outstanding Notional Amount of Notes
of different authorized denominations, as requested by the Holder surrendering
same.
Unless
the Certificate of Authentication hereon has been executed by the Securities
Administrator by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
Anything
herein to the contrary notwithstanding, except as expressly provided in the
Basic Documents, neither the Owner Trustee in its individual capacity, nor
any
of its respective partners, beneficiaries, agents, officers, directors,
employees, or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest
on,
or performance of, or omission to perform, any of the covenants, obligations
or
indemnifications contained in this Note, it being expressly understood that
said
covenants, obligations and indemnifications have been made solely by the Trust
to the extent of the assets of the Trust. The holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, the Holder shall have no claim against any of the foregoing for
any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Trust Estate for any and all liabilities, obligations and
undertakings contained in this Note.
AS
PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS 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.
IN
WITNESS WHEREOF, the Issuing Entity has caused this instrument to be duly
executed.
Dated:
June 29, 2007
|
BEAR
XXXXXXX ARM TRUST 2007-2
|
||||||||||||
|
By:
|
WILMINGTON
TRUST COMPANY, not in
its
individual capacity but solely in its
capacity
as Owner Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
Authorized
Signatory
|
||||||||||||
SECURITIES
ADMINISTRATOR’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Class X Notes referred to in the within-mentioned
Indenture.
|
BEAR
XXXXXXX ARM TRUST 2007-2
|
||||||||||||
|
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
|
||||||||||||
|
By:
|
||||||||||||
|
Authorized
Signatory
|
||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of the Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
|
TEN
COM
|
--
|
as
tenants in common
|
|
TEN
ENT
|
--
|
as
tenants by the entireties
|
|
JT
TEN
|
--
|
as
joint tenants with right of survivorship and not as tenants in
common
|
|
UNIF
GIFT MIN ACT
|
--
|
____________
Custodian
|
|
(Cust) (Minor)
|
||
|
under
Uniform Gifts to Minor Act
|
||
|
(State)
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto PLEASE INSERT
SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
(Please
print or typewrite name and address, including zip code, 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 by
|
||||
NOTICE:
The signature(s) to this assignment must correspond with the name as it appears
upon the face of the within Note in every particular, without alteration or
enlargement or any change whatsoever. Signature(s) must be guaranteed by a
commercial bank or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
EXHIBIT
A-3
FORM
OF
CLASS B NOTES
THIS
NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS I-A-1, CLASS I-A-2, CLASS
II-A-1, CLASS II-A-2, CLASS III-A-1, CLASS III-A-2, CLASS IV-A-1, CLASS IV-A-2,
CLASS X, [AND] [,][CLASS B-1], [AND] [,][ [CLASS B-2], [AND] [,][ [CLASS B-3],
[AND] [,][ [CLASS B-4] [AND] [,][ [CLASS B-5] NOTES AS DESCRIBED IN THE
INDENTURE.
THIS
NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF THE INDENTURE.
NO
TRANSFER OF THIS NOTE SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 4.15
OF
THE INDENTURE.
NO
TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS NOTE OR INTEREST THEREIN
SHALL BE MADE, AND THE SECURITIES ADMINISTRATOR SHALL REFUSE TO REGISTER
ANY
SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION, UNLESS AND UNTIL (1) THE
PROPOSED TRANSFEREE SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE SECURITIES
ADMINISTRATOR AND THE INDENTURE TRUSTEE (I) IN THE CASE OF A TRANSFER, SALE,
PLEDGE OR DISPOSITION, EXCLUDING A PLEDGE TO SECURE INDEBTEDNESS OR A TRANSFER,
SALE, PLEDGE OR DISPOSITION PURSUANT TO ANY REPURCHASE AGREEMENT (BUT NOT
EXCLUDING A DISPOSITION FOLLOWING A DEFAULT UNDER SUCH INDEBTEDNESS OR
REPURCHASE TRANSACTION), (i) A CERTIFICATE CERTIFYING THAT, FOLLOWING SUCH TRANSFER,
SALE, PLEDGE OR DISPOSITION, THE PROPOSED TRANSFEREE WILL BE EITHER (A) A
SINGLE OWNER OR (B) A PROPORTIONATE OWNER AND (ii)
AN OPINION OF
NATIONALLY RECOGNIZED TAX COUNSEL (WHICH OPINION SHALL NOT BE AN EXPENSE
OF THE
TRUST), ADDRESSED TO THE SECURITIES ADMINISTRATOR, THE OWNER TRUSTEE AND
THE
INDENTURE TRUSTEE, TO THE EFFECT THAT SUCH TRANSFER, SALE, PLEDGE OR
DISPOSITION WILL NOT CAUSE THE TRUST TO BE (X) TREATED AS AN ASSOCIATION
TAXABLE
AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES OR (Y) TAXABLE AS A “PUBLICLY
TRADED PARTNERSHIP” AS DEFINED IN TREASURY REGULATION SECTION 1.7704-1 FOR
FEDERAL INCOME TAX PURPOSES,
(II)
AN
OPINION OF NATIONALLY RECOGNIZED TAX COUNSEL ADDRESSED TO THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE (WHICH OPINION
SHALL
NOT BE AN EXPENSE OF THE TRUST) TO THE EFFECT THAT SUCH
TRANSFER, SALE, PLEDGE OR DISPOSITION WILL NOT CAUSE THE TRUST TO BE
(X)
TREATED
AS AN ASSOCIATION TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES,
(Y) TREATED AS A TAXABLE MORTGAGE POOL FOR FEDERAL INCOME TAX PURPOSES
OR
(Z)
TAXABLE
AS A “PUBLICLY TRADED PARTNERSHIP” AS DEFINED IN TREASURY REGULATION SECTION
1.7704-1 FOR FEDERAL INCOME TAX PURPOSES,
OR
(III) AN
OPINION OF NATIONALLY RECOGNIZED TAX COUNSEL ADDRESSED TO THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE (WHICH OPINION
SHALL
NOT BE AN EXPENSE OF THE TRUST) TO THE EFFECT THAT SUCH TRANSFER,
SALE, PLEDGE OR DISPOSITION WILL CONSTITUTE A TMP TRIGGER EVENT, AND (2)
IN THE CASE OF ANY TRANSFER,
SALE, PLEDGE OR OTHER
DISPOSITION
WITH RESPECT TO WHICH THE PROPOSED TRANSFEREE DELIVERS THE OPINION DESCRIBED
IN
THE IMMEDIATELY PRECEDING CLAUSE (III), THE REMIC CONVERSION ASSOCIATED WITH
SUCH TMP TRIGGER EVENT (AND ALL CONDITIONS PRECEDENT THERETO, INCLUDING THE
CONTRIBUTION TO THE ISSUING ENTITY OR PROVISIONS FOR PAYMENT TO VARIOUS PARTIES
OF CERTAIN ADDITIONAL FUNDS BY SUCH PROPOSED TRANSFEROR OR PROPOSED TRANSFEREE
PURSUANT TO ARTICLE XI OF THE INDENTURE) SHALL HAVE BEEN
CONSUMMATED. NOTWITHSTANDING THE FOREGOING, THIS NOTE MAY BE PLEDGED
TO SECURED INDEBTEDNESS AND MAY BE THE SUBJECT OF REPURCHASE AGREEMENTS TREATED
BY THE ISSUING ENTITY AS SECURED INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES,
PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT, THIS NOTE MAY NOT BE TRANSFERRED
BY
THE RELATED LENDER OR REPURCHASE AGREEMENT COUNTERPARTY UNDER ANY SUCH RELATED
INDEBTEDNESS OR REPURCHASE AGREEMENT UPON A DEFAULT UNDER ANY SUCH INDEBTEDNESS
OR REPURCHASE AGREEMENT, AS APPLICABLE, EXCEPT IN ACCORDANCE WITH THE
FOREGOING.
NO
TRANSFER OF THIS NOTE OR INTEREST THEREIN SHALL BE MADE, AND THE SECURITIES
ADMINISTRATOR SHALL REFUSE TO REGISTER ANY SUCH TRANSFER, UNLESS THE SECURITIES
ADMINISTRATOR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING
AS TO THE PROPOSED TRANSFEREE’S STATUS AS A U.S. PERSON.
THIS
NOTE IS A NON-RECOURSE OBLIGATION OF THE ISSUING ENTITY, AND IS LIMITED IN
RIGHT
OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE
INDENTURE REFERRED TO BELOW. THE ISSUING ENTITY IS NOT OTHERWISE PERSONALLY
LIABLE FOR PAYMENTS ON THIS NOTE.
PRINCIPAL
OF THIS NOTE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN
ON THE FACE HEREOF.
BY
ACCEPTANCE OF THIS NOTE, THE HOLDER HEREOF AGREES TO SURRENDER THIS NOTE TO
THE
SECURITIES ADMINISTRATOR PROMPTLY UPON RECEIPT OF THE CORRESPONDING CLASS OF
REMIC PRIVATELY OFFERED CERTIFICATES IN CONNECTION WITH A REMIC CONVERSION
AS
DESCRIBED IN THE INDENTURE.
n. BEAR
XXXXXXX ARM TRUST 2007-2
MORTGAGE-BACKED
NOTES, SERIES 2007-2
CLASS
B-[1][2][3][4][5][6]
|
AGGREGATE
NOTE PRINCIPAL
|
NOTE
INTEREST
|
|
BALANCE:
$[_______]
|
RATE: Variable
Rate
|
|
INITIAL
NOTE PRINCIPAL
|
NOTE
NO. 1
|
|
BALANCE
OF THIS NOTE: $[_______]
|
|
|
PERCENTAGE
INTEREST: 100%
|
CUSIP
NO: [_______]
|
BEAR
XXXXXXX ARM TRUST 2007-2 (the “Issuing Entity”), a Delaware statutory trust, for
value received, hereby promises to pay to Alesco Loan Holdings, LLC or
registered assigns, the principal sum of $[______] in monthly installments
on
the twenty-fifth day of each month or, if such day is not a Business Day, the
next succeeding Business Day (each a “Payment Date”), commencing in July 2007
and ending on or before the Payment Date occurring in December 25, 2046 (the
“Final Scheduled Payment Date”) and to pay interest on the Note Principal
Balance of this Note (this “Note”) outstanding from time to time as provided
below.
This
Note
is one of a duly authorized issue of the Issuing Entity’s Mortgage-Backed Notes,
Series 2007-2 (the “Notes”), issued under an Indenture, dated as of June 29,
2007 (the “Indenture”), among the Issuing Entity, Xxxxx Fargo Bank, N.A., as
securities administrator (the “Securities Administrator”) and Citibank, N.A., as
indenture trustee (the “Indenture Trustee”, which term includes any successor
Indenture Trustee), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder
of
the Issuing Entity, the Indenture Trustee and the Holders of the Notes and
the
terms upon which the Notes are to be authenticated and delivered. All terms
used
in this Note which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
Payments
of principal and interest on this Note will be made on each Payment Date to
the
Noteholder of record as of the related Record Date. The “Note Principal Balance”
of a Note as of any date of determination is equal to the initial Note Principal
Balance thereof, minus (i) all amounts distributed in respect of principal
with
respect to such Class of Notes, (ii) the aggregate amount of any reductions
in
the Note Principal Balance thereof deemed to have occurred in connection with
allocations of Realized Losses on all prior Payment Dates in accordance with
the
Indenture, taking account of its applicable Loss Allocation Limitation, and
(iii) such Class’s pro rata share, if any, of the applicable Subordinate
Writedown Amount for previous Payment Dates, plus (iv) any Subsequent Recoveries
allocated thereto.
The
principal of, and interest on, this Note are due and payable as described in
the
Indenture, 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 Issuing Entity with respect to this Note shall be equal
to
this Note’s pro rata share of the aggregate payments on all Class
B-[1][2][3][4][5][6] Notes as described above, and shall be applied as between
interest and principal as provided in the Indenture.
All
principal and interest accrued on the Notes, if not previously paid, will become
finally due and payable at the Final Scheduled Payment Date.
The
Mortgage Loans are subject to purchase in whole, but not in part, by the
Majority Certificateholder on any Payment Date on or after the Payment Date
on
which the aggregate Scheduled Principal Balance of the Mortgage Loans is less
than 10% of the aggregate Scheduled Principal Balance of the Mortgage Loans
as
of the Cut-off Date.
By
acceptance of this Note, the Holder hereof agrees to surrender this Note to
the
Securities Administrator promptly upon receipt of the corresponding class of
REMIC Privately Offered Certificates in connection with a REMIC Conversion
as
described in the Indenture.
The
Issuing Entity 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 will be the sole source of payments on the Class
B-[1][2][3][4][5][6] 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 as provided in the Indenture and (ii) such
Holder shall have no recourse to the Issuing Entity, the Owner Trustee, the
Indenture Trustee, the Depositor, the Seller, the Master Servicer, the
Securities Administrator or any of their respective affiliates, or to the assets
of any of the foregoing entities, except the assets of the Issuing Entity
pledged to secure the Class B-[1][2][3][4][5][6] Notes pursuant to the Indenture
and the rights conveyed to the Issuing Entity under the Indenture.
Any
payment of principal or interest payable on this Note which is punctually paid
on the applicable Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the Record Date for such Payment
Date by check mailed to such person’s address as it appears in the Note Register
on such Record Date, except for the final installment of principal and interest
payable with respect to such Note, which shall be payable as provided below.
Notwithstanding the foregoing, upon written request with appropriate
instructions by the Holder of this Note delivered to the Securities
Administrator at least five Business Days prior to the Record Date, 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. All reductions in the principal amount of a Note
effected by payments of principal made on any Payment Date shall be binding
upon
all Holders of this 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 payment of this Note shall be payable
upon presentation and surrender thereof on or after the Payment Date thereof
at
the Office designated by the Securities Administrator or the office or agency
of
the Issuing Entity maintained by it for such purpose pursuant to the
Indenture.
Subject
to the foregoing provisions, each Note delivered under the Indenture, upon
registration of transfer of or in exchange for or in lieu of any other Note,
shall carry the right to unpaid principal and interest that were carried by
such
other Note.
If
an
Event of Default as defined in the Indenture shall occur and be continuing
with
respect to the Notes, the Notes may become or be declared due and payable in
the
manner and with the effect provided in the Indenture. If any such acceleration
of maturity occurs prior to the payment of the entire unpaid Note Principal
Balance of the Notes, the amount payable to the Holder of this Note will be
equal to the sum of the unpaid Note Principal Balance of this Note, together
with accrued and unpaid interest thereon as described in the Indenture. The
Indenture provides that, notwithstanding the acceleration of the maturity of
the
Notes, under certain circumstances specified therein, all amounts collected
as
proceeds of the Trust Estate securing the Notes or otherwise shall continue
to
be applied to payments of principal of and interest on the Notes as if they
had
not been declared due and payable.
The
failure to pay any Net Interest Shortfall at any time when funds are not
available to make such payment as provided in the Indenture shall not constitute
an Event of Default under the Indenture.
No
transfer, sale, pledge or other disposition of this Note or interest herein
shall be made unless that transfer, sale, pledge or other disposition is exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws, or is otherwise made in accordance
with the Securities Act and such state securities laws. If a transfer
of this Note is to be made without registration under the Securities Act (other
than in connection with the initial issuance thereof or a transfer thereof
by
the Depositor or one of its Affiliates), then the Securities Administrator
shall
refuse to register such transfer unless (i) it receives (and upon receipt,
may
conclusively rely upon) a certificate substantially in the form attached as
Exhibit C to the Indenture or (ii) it receives a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Securities
Administrator and the Indenture Trustee and the transferee executes a
representation letter substantially in the form of Exhibit D attached to the
Indenture, and transferor executes a representation letter substantially in
the
form of Exhibit E attached to the Indenture, each acceptable to and in form
and
substance satisfactory to the Securities Administrator and the Indenture
Trustee. None of the Issuing Entity, the Depositor, the Indenture
Trustee or the Securities Administrator is obligated to register or qualify
any
Notes under the Securities Act or any other securities law or to take any action
not otherwise required under the Indenture to permit the transfer of this Note
or interest herein without registration or qualification. Any
Noteholder desiring to effect a transfer of this Note or interest herein shall,
and does hereby agree to, indemnify the Issuing Entity, the Depositor, the
Owner
Trustee, the Indenture Trustee and the Securities Administrator against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No
transfer of this Class B-[1][2][3][4][5][6] Note or any interest therein shall
be made except in accordance with Section 4.15 of the Indenture.
No
transfer, sale, pledge or other disposition of this Class B-[1][2][3][4][5][6]
Note or interest therein shall be made, and the Securities Administrator
shall
refuse to register any such transfer, sale, pledge or other disposition,
unless
and until (1) the proposed transferee shall have delivered to the Owner Trustee,
the Securities Administrator and the Indenture Trustee (I) in the case of
a
transfer, sale, pledge or disposition, excluding a pledge to secure indebtedness
or a transfer, sale, pledge or disposition pursuant to any repurchase agreement
(but not excluding a disposition following a default under such indebtedness
or
repurchase transaction), (i) a certificate certifying that, following such
transfer, sale, pledge or disposition, the proposed transferee will be either
(A) a Single Owner or (B) a Proportionate Owner and (ii) an opinion of
nationally recognized tax counsel (which opinion shall not be an expense
of the
Trust), addressed to the Securities Administrator, the Owner Trustee and
the
Indenture Trustee, to the effect that such transfer, sale, pledge or
disposition will not cause the Trust to be (x) treated as an association
taxable
as a corporation for federal income tax purposes or (y) taxable as a “publicly
traded partnership” as defined in Treasury Regulation Section 1.7704-1 for
federal income tax purposes, (II) an opinion of nationally recognized tax
counsel addressed to the Securities Administrator, the Owner Trustee and
the
Indenture Trustee (which opinion shall not be an expense of the Trust) to
the
effect that such transfer, sale, pledge or disposition will not cause the
Trust
to be (x) treated as an association taxable as a corporation for federal
income
tax purposes, (y) treated as a taxable mortgage pool for federal income tax
purposes or (z) taxable as a “publicly traded partnership” as defined in
Treasury Regulation Section 1.7704-1 for federal income tax purposes, or
(III)
an opinion of nationally recognized tax counsel addressed to the Securities
Administrator, the Owner Trustee and the Indenture Trustee (which opinion
shall
not be an expense of the Trust) to the effect that that such transfer, sale,
pledge or disposition will constitute a TMP Trigger Event, and (2) in the
case
of any transfer, sale, pledge or other disposition with respect to which
the
proposed transferee delivers the opinion described in the immediately preceding
clause (III), the REMIC Conversion associated with such TMP Trigger Event
(and
all conditions precedent thereto, including the contribution to the Issuing
Entity or provisions for payment to various parties of certain additional
funds
by such proposed transferor or proposed transferee pursuant to Article XI
of the
Indenture) shall have been consummated. Notwithstanding the
foregoing, this Class B-[1][2][3][4][5][6] Note or interest therein may be
pledged to secure indebtedness and may be the subject of repurchase agreements
treated by the Issuing Entity as secured indebtedness for federal income
tax
purposes, provided that, for the avoidance of doubt, this Class
B-[1][2][3][4][5][6] Note or interest therein may not be transferred by the
related lender or repurchase agreement counterparty under any such indebtedness
or repurchase agreement upon a default under such indebtedness or repurchase
agreement, as applicable, except in accordance with the foregoing.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note may be registered on the Note Register of the Issuing
Entity. Upon surrender for registration of transfer of, or presentation of
a
written instrument of transfer for, this Note at the office or agency designated
by the Issuing Entity pursuant to the Indenture, accompanied by proper
instruments of assignment in form satisfactory to the Securities Administrator,
one or more new Notes of any authorized denominations and of a like aggregate
then outstanding Note Principal Balance, will be issued to the designated
transferee or transferees.
Prior
to
the due presentment for registration of transfer of this Note, the Issuing
Entity, the Indenture Trustee, the Securities Administrator and any agent of
the
Issuing Entity, the Securities Administrator or the Indenture Trustee may treat
the Person in whose name this Note is registered as the owner of such Note
(i)
on the applicable Record Date for the purpose of making payments and interest
of
such Note, and (ii) on any other date for all other purposes whatsoever, as
the
owner hereof, whether or not this Note be overdue, and none of the Issuing
Entity, the Securities Administrator, the Indenture Trustee nor any such agent
of the Issuing Entity, the Securities Administrator or the Indenture Trustee
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 Issuing Entity
and the rights of the Holders of the Notes under the Indenture at any time
by
the Issuing Entity and the Holders of a majority of each Class of Notes affected
thereby. The Indenture also contains provisions permitting the Holders of Notes
representing not less than a majority of the aggregate Note Principal Balance
of
the Notes, to waive any past Event of Default and its consequences except an
Event of Default (a) with respect to payment of principal of or interest on
any
of the Notes, or (b) in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of each
Note. Any such waiver by the Holder, at the time of the giving thereof, of
this
Note (or any one or more predecessor Notes) shall bind the Holder of every
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 such
Note. The Indenture also permits the Issuing Entity, the Indenture Trustee
and
the Securities Administrator, following prior notice to the Rating Agencies,
to
amend or waive certain terms and conditions set forth in the Indenture without
the consent of the Holders of the Notes issued thereunder.
The
Notes
are exchangeable for a like aggregate then outstanding Note Principal Balance
of
Notes of different authorized denominations, as requested by the Holder
surrendering same.
Unless
the Certificate of Authentication hereon has been executed by the Securities
Administrator by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
Anything
herein to the contrary notwithstanding, except as expressly provided in the
Basic Documents, neither the Owner Trustee in its individual capacity, nor
any
of its respective partners, beneficiaries, agents, officers, directors,
employees, or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest
on,
or performance of, or omission to perform, any of the covenants, obligations
or
indemnifications contained in this Note, it being expressly understood that
said
covenants, obligations and indemnifications have been made solely by the Trust
to the extent of the assets of the Trust. The holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, the Holder shall have no claim against any of the foregoing for
any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Trust Estate for any and all liabilities, obligations and
undertakings contained in this Note.
AS
PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS 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.
IN
WITNESS WHEREOF, the Issuing Entity has caused this instrument to be duly
executed.
Dated:
June 29, 2007
|
BEAR
XXXXXXX ARM TRUST 2007-2
|
||||||||||||
|
By:
|
WILMINGTON
TRUST COMPANY, not in
its
individual capacity but solely in its
capacity
as Owner Trustee
|
|||||||||||
|
By:
|
||||||||||||
|
Authorized
Signatory
|
||||||||||||
SECURITIES
ADMINISTRATOR’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Class B-[1][2][3][4][5][6] Notes referred to in the within-mentioned
Indenture.
|
By:
|
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
|
||||||
|
By:
|
|||||||
|
Authorized
Signatory
|
|||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of the Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
|
TEN
COM
|
--
|
as
tenants in common
|
|
TEN
ENT
|
--
|
as
tenants by the entireties
|
|
JT
TEN
|
--
|
as
joint tenants with right of survivorship and not as tenants in
common
|
|
UNIF
GIFT MIN ACT
|
--
|
____________
Custodian
|
|
(Cust) (Minor)
|
||
|
under
Uniform Gifts to Minor Act
|
||
|
(State)
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto PLEASE INSERT
SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
(Please
print or typewrite name and address, including zip code, 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 by
|
||||
NOTICE:
The signature(s) to this assignment must correspond with the name as it appears
upon the face of the within Note in every particular, without alteration or
enlargement or any change whatsoever. Signature(s) must be guaranteed by a
commercial bank or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1. In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to
the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the Securities Act of 1933, as amended (the “1933 Act”), or
that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, and that
the
Seller has not offered the Rule 144A Securities to any person other than the
Buyer or another “qualified institutional buyer” as defined in Rule 144A under
the 1933 Act.
2. The
Buyer
warrants and represents to, and covenants with, the Indenture Trustee pursuant
to Section 4.02 of the Indenture (the “Indenture”), dated as of June 29, 2007,
among Bear Xxxxxxx ARM Trust 2007-2, as Issuing Entity, Xxxxx Fargo Bank, N.A.,
as Securities Administrator and Citibank, N.A., as Indenture Trustee, as
follows:
a. The
Buyer
understands that the Rule 144A Securities have not been registered under the
1933 Act or the securities laws of any state.
b. The
Buyer
considers itself a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The
Buyer
has been furnished with all information regarding the Rule 144A Securities
that
it has requested from the Seller, the Indenture Trustee, the Owner Trustee
or
the Master Servicer.
d. Neither
the Buyer nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule
144A Securities or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security from,
or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or
that
would render the disposition of the Rule 144A Securities a violation of Section
5 of the 1933 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
e. The
Buyer
is a “qualified institutional buyer” as that term is defined in Rule 144A under
the 1933 Act and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale
to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule
144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3. The
Buyer
warrants and represents to, and covenants with, the Seller, the Indenture
Trustee, Owner Trustee, the Certificate Registrar, Master Servicer and the
Depositor that either (1) the Buyer is (A) not an employee benefit plan (within
the meaning of Section 3(3) of the Employee Retirement Income Security Act
of
1974, as amended (“ERISA”)), or a plan (within the meaning of Section 4975(e)(1)
of the Internal Revenue Code of 1986 (“Code”)), which (in either case) is
subject to ERISA or Section 4975 of the Code (both a “Plan”), and (B) is not
directly or indirectly purchasing the Rule 144A Securities on behalf of, as
investment manager of, as named fiduciary of, as trustee of, or with “plan
assets” of a Plan, or (2) the Buyer understands that registration of transfer of
any Rule 144A Securities to any Plan, or to any Person acting on behalf of
any
Plan, will not be made unless such Plan delivers an opinion of its counsel,
addressed and satisfactory to the Certificate Registrar, the Owner Trustee,
the
Indenture Trustee, the Master Servicer and the Depositor, to the effect that
the
purchase and holding of the Rule 144A Securities by, on behalf of or with “plan
assets” of any Plan is permissible under applicable law, would not constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code,
and
would not subject the Depositor, the Owner Trustee, the Indenture Trustee,
the
Certificate Registrar or the Master Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition
to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Owner Trustee, the Indenture Trustee or the Master
Servicer.
4. This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
|
Print
Name of Seller
|
Print
Name of Buyer
|
||
|
By:
|
By:
|
||
|
Name:
|
Name:
|
||
|
Title:
|
Title:
|
||
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
||
|
No:
|
No:
|
||
|
Date:
|
Date:
|
||
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $_________1
in securities (except for the excluded securities referred to below) as of
the
end of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
|
Corporation,
etc. The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code.
|
||
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised by
the
State or territorial banking commission or similar official or is
a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least
|
||
|
Savings
and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or
similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
|
||
|
Broker-Dealer.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
||
|
Insurance
Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which
is
subject to supervision by the insurance commissioner or a similar
official
or agency of a State or territory or the District of
Columbia.
|
||
|
State
or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality
of the
State or its political subdivisions, for the benefit of its
employees.
|
||
|
ERISA
Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of
1974.
|
||
|
Investment
Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
|
||
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
|
||
|
Business
Development Company. The Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940.
|
||
|
Trust
Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and
maintained by a State, its political subdivisions, or any agency
or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning
of Title I of the Employee Retirement Income Security Act of 1974,
but is
not a trust fund that includes as participants individual retirement
accounts or H.R. 10 plans.
|
||
3. The
term “securities” as used herein does not include (i) securities of Issuing
Entities that are affiliated with the Buyer, (ii) securities that are part
of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Notes are relying and will continue
to
rely on the statements made herein because one or more sales to the Buyer may
be
in reliance on Rule 144A.
|
Will
the Buyer be purchasing the Rule 144A Securities only for the Buyer’s own
account?
|
|||
|
Yes
|
No
|
6. If
the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7. The
Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of
this certification as of the date of such purchase.
1
Buyer must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Buyer is a
dealer, and, in that case, Buyer must own and/or invest on a discretionary
basis
at least $10,000,000 in securities.
|
Print
Name of Buyer
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name
|
||||||||||||||
|
Title
|
||||||||||||||
|
Date:
|
||||||||||||||
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers That Are Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2.
In
connection with purchases by Xxxxx, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer’s Family of Investment Companies, owned at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer’s Family of
Investment Companies, the cost of such securities was used.
|
_____
|
The
Buyer owned $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer’s most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
|
|
_____
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
|
3. The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The
term “securities” as used herein does not include (i) securities of
Issuing Entitys that are affiliated with the Buyer or are part of the Buyer’s
Family of Investment Companies, (ii) bank deposit Notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate
and
commodity swaps.
5. The
Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer’s
own account.
6. The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
|
Print
Name of Buyer
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name
|
|||||||||||||
|
Title
|
|||||||||||||
|
IF
AN ADVISER:
|
|||||||||||||
|
Print
Name of Buyer
|
|||||||||||||
|
Date:
|
|||||||||||||
EXHIBIT
D
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Wilmington,
Delaware 19890-0001
Xxxxx
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
|
|
Re:
|
Bear
Xxxxxxx ARM Trust,
Mortgage-Backed Notes, Series 2007-2, [Class X] [Class
B] (the
“Notes”)
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Notes, we certify that
(a) we understand that the Notes are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Notes, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase
of
the Notes and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Notes, (d) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act
of
1974, as amended, or a plan that is subject to Section 4975 of the Internal
Revenue Code of 1986, as amended, nor are we acting on behalf of any such plan
or we have delivered an opinion of counsel as required by the Indenture, (e)
we
are acquiring the Notes for investment for our own account and not with a view
to any distribution of such Notes (but without prejudice to our right at all
times to sell or otherwise dispose of the Notes in accordance with clause (g)
below), (f) we have not offered or sold any Notes to, or solicited offers to
buy
any Notes from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in
a
violation of Section 5 of the Act, and (h) we will not sell, transfer or
otherwise dispose of any Notes unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we
will
at our expense provide an Opinion of Counsel satisfactory to the addressees
of
this certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Note has executed and delivered to you a certificate to substantially the same
effect as this certificate, and (3) the purchaser or transferee has otherwise
complied with any conditions for transfer set forth in the
Indenture.
|
Very
truly yours,
|
|||||||
|
[TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
EXHIBIT
E
TRANSFEROR
CERTIFICATE
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Wilmington,
Delaware 19890-0001
Xxxxx
Fargo Bank, National Association
Sixth
Street and Marquette Avenue
Minneapolis,
MN 55479
|
|
Re:
|
Proposed
Transfer of [Class A]
[Class X] [Class B] Bear Xxxxxxx ARM Trust 2007-2
|
Gentlemen:
This
certification is being made by ____________________ (the “Transferor”) in
connection with the proposed Transfer to _____________________ (the
“Transferee”) of the [Class A Notes][Class X Notes] [Class B Notes] (the
“Notes”) issued pursuant to the Indenture, dated June 29, 2007, being referred
to herein as the “Indenture”) among Bear Xxxxxxx ARM Trust 2007-2, as Issuing
Entity, Xxxxx Fargo Bank, N.A., as securities administrator and Citibank, N.A.
as indenture trustee (the “Indenture”). Initially capitalized terms used but not
defined herein have the meanings assigned to them in the Indenture. The
Transferor hereby certifies, represents and warrants to, and covenants with,
the
Owner Trustee and the Indenture Trustee that:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Note, any interest in any Note or
any
other similar security to any person in any manner, (b) has solicited any offer
to buy or to accept a pledge, disposition or other transfer of any Note, any
interest in any Note or any other similar security from any person in any
manner, (c) has otherwise approached or negotiated with respect to any Note,
any
interest in any Note or any other similar security with any person in any
manner, (d) has made any general solicitation by means of general advertising
or
in any other manner, or (e) has taken any other action, that (as to any of
(a)
through (e) above) would constitute a distribution of the Notes under the
Securities Act of 1933 (the “Act”), that would render the disposition of any
Note a violation of Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant thereto. The Transferor
will not act in any manner set forth in the foregoing sentence with respect
to
any Note. The Transferor has not and will not sell or otherwise transfer any
of
the Notes, except in compliance with the provisions of the
Indenture.
|
Date:
|
||||||
|
Authorized
Officer
|
||||||
|
Signature
|
||||||
|
Name
|
||||||
|
Title
|
||||||
EXHIBIT
F
FORM
OF TRANSFEREE CERTIFICATE
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Wilmington,
Delaware 19890-0001
Citibank,
N.A.,
as
Indenture Trustee
000
Xxxxxxxxx Xxxxxx, 00xx Floor
New
York,
New York 10013
Xxxxx
Fargo Bank, National Association
Sixth
Street and Marquette Avenue
Minneapolis,
MN 55479
Re: Proposed
Transfer of [Class X] [Class B] Notes, Bear Xxxxxxx ARM Trust
2007-2
Gentlemen:
This
certification is being made by _________ (the “Transferee”) in connection with
the proposed transfer, sale, pledge or disposition (the “Transfer”) of a
[Class X] [Class B] Note issued pursuant to the Indenture, dated as of June
29,
2007 (the “Indenture”), among Bear Xxxxxxx ARM Trust 2007-2, as Issuing Entity,
Xxxxx Fargo Bank, N.A., as securities administrator (the “Securities
Administrator”), and Citibank, N.A., as indenture trustee (the “Indenture
Trustee”). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Indenture.
The
Transferee hereby certifies, represents and warrants to, and covenants with,
the
Owner Trustee, the Securities Administrator and the Indenture Trustee
that:
|
|
(i)
|
the
Transfer is not a Transfer to secure indebtedness or a Transfer
pursuant to any repurchase agreement (other than a Transfer following
a default under such indebtedness or repurchase transaction),
and,
|
|
|
(ii)
|
(x)
|
following such Transfer, the
Transferee (check only one of the applicable clauses (i) or (ii)
below)
|
____(i) will
be a Single Owner; or
____(ii) will
be a Proportionate Owner, and
(y) such
Transfer will not cause the Trust to be treated as an association taxable
as a
corporation for federal income tax purposes, or taxable as a “publicly traded
partnership” as defined in Treasury Regulation Section 1.7704-1 for federal
income tax purposes, as evidenced by an opinion of nationally recognized
tax
counsel addressed and provided to the Securities Administrator, the Owner
Trustee and the Indenture Trustee (at the expense of the proposed transferor
or
proposed transferee).
|
Date:
|
||||||
|
Authorized
Officer
|
||||||
|
Signature
|
||||||
|
Name
|
||||||
|
Title
|
||||||
EXHIBIT
G
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 4.02 of the Indenture, dated as of June 29, 2007 (the “Indenture”),
among Bear Xxxxxxx ARM Trust 2007-2, as issuing entity (the “Issuing Entity”),
Citibank, N.A., as indenture trustee (the “Indenture Trustee”), and Xxxxx Fargo
Bank, N.A., as securities administrator (the “Securities Administrator”), in
connection with the acquisition of, transfer to or possession by the
undersigned, whether as Beneficial Owner for U.S. Federal income tax purposes
(the “Beneficial Owner”), or nominee on behalf of the Beneficial Owner of the
Class ____ Notes, Series 2007-2 (the “Note”). Capitalized terms used but not
defined in this certificate have the respective meanings given them in the
Indenture.
Each
Holder must complete Part I, Part II (if the Holder is a nominee), and in all
cases sign and otherwise complete Part III.
In
addition, each Holder shall submit with the certificate an IRS Form W-9 relating
to such Holder.
To
confirm to the Issuing Entity that the provisions of Sections 871, 881 or 1446
of the Internal Revenue Code (relating to withholding tax on foreign partners)
do not apply in respect of the Note held by the undersigned, the undersigned
hereby certifies:
|
Part
I -
|
Complete
Either A or B
|
|
|
A.
|
Individual
as Beneficial Owner
|
|
|
1.
|
I
am (The Beneficial Owner is) not a non-resident alien for purposes
of U.S.
income taxation;
|
|
|
2.
|
My
(The Beneficial Owner's) name and home address
are:
|
;
and
|
|
3.
|
My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
|
B. Corporate,
Partnership or Other Entity as the Beneficial Owner
|
|
1.
|
(Name
of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
Regulations;
|
|
|
2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
|
;
and
|
|
3.
|
The
Beneficial Owner's U.S. employer identification number is
.
|
|
Part
II -
|
Nominees
|
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
an
IRS
Form W-9
a
form
such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Securities Administrator at least thirty (30) days prior to the
date
that the form relied upon becomes obsolete, and (ii) in connection with a change
in the Beneficial Owner, the undersigned agrees to submit a new Certificate
of
Non-Foreign Status to the Securities Administrator promptly after such
change.
|
Part
III -
|
Declaration
|
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Securities Administrator within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Securities
Administrator and any false statement contained therein could be punishable
by
fines, imprisonment or both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Issuing Entity of any change in the
information provided above, and, if applicable, I further declare that I have
the authority* to sign this document.
| Name | |
| Title (if applicable) | |
| Signature and Date |
*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
