EXHIBIT 4.3
EXECUTION COPY
GMACM HOME LOAN TRUST 2000-HLTV1,
Issuer,
and
THE BANK OF NEW YORK,
Indenture Trustee
------------------------
INDENTURE
------------------------
Dated as of March 30, 2000
GMACM HOME LOAN-BACKED TERM NOTES
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions..........................................2
Section 1.01 Definitions....................................2
Section 1.02 Incorporation by Reference of Trust Indenture
Act............................................2
Section 1.03 Rules of Construction..........................2
ARTICLE II Original Issuance of Notes...........................3
Section 2.01 Form...........................................3
Section 2.02 Execution, Authentication and Delivery.........3
ARTICLE III Covenants............................................4
Section 3.01 Collection of Payments with Respect to the
Home Loans.....................................4
Section 3.02 Maintenance of Office or Agency................4
Section 3.03 Money for Payments to Be Held in Trust;
Paying Agent...................................4
Section 3.04 Existence......................................6
Section 3.05 Priority of Distributions......................6
Section 3.06 Protection of Trust Estate.....................8
Section 3.07 Opinions as to Trust Estate....................9
Section 3.08 Performance of Obligations; Servicing
Agreement......................................9
Section 3.09 Negative Covenants............................10
Section 3.10 Annual Statement as to Compliance.............10
Section 3.11 Recordation of Assignments....................11
Section 3.12 Representations and Warranties
Concerning the Home Loans.....................11
Section 3.13 Assignee of Record of the Home Loans..........11
Section 3.14 Servicer as Agent and Bailee of the
Indenture Trustee11...........................11
Section 3.15 Investment Company Act........................11
Section 3.16 Issuer May Consolidate, etc...................12
Section 3.17 Successor or Transferee.......................13
Section 3.18 No Other Business.............................14
Section 3.19 No Borrowing..................................14
Section 3.20 Guarantees, Loans, Advances and Other
Liabilities...................................14
Section 3.21 Capital Expenditures..........................14
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Section 3.22 Owner Trustee Not Liable for Certificates or
Related Documents.............................14
Section 3.23 Restricted Payments...........................14
Section 3.24 Notice of Events of Default...................15
Section 3.25 Further Instruments and Acts..................15
Section 3.26 Statements to Noteholders.....................15
Section 3.27 Determination of Note Rate....................15
Section 3.28 Payments under the Policy.....................15
Section 3.29 Replacement Enhancement.......................16
Section 3.30 Payments under the Limited Reimbursement
Agreement.....................................16
ARTICLE IV The Notes; Satisfaction and Discharge of Indenture..17
Section 4.01 The Notes;....................................17
Section 4.02 Registration of and Limitations on Transfer and
Exchange of Notes;
Appointment of Certificate Registrar..........17
Section 4.03 Mutilated, Destroyed, Lost or Stolen Notes....18
Section 4.04 Persons Deemed Owners.........................19
Section 4.05 Cancellation..................................19
Section 4.06 Book-Entry Notes..............................20
Section 4.07 Notices to Depository.........................20
Section 4.08 Definitive Notes..............................21
Section 4.09 Tax Treatment.................................21
Section 4.10 Satisfaction and Discharge of Indenture.......21
Section 4.11 Application of Trust Money....................22
Section 4.12 Subrogation and Cooperation...................22
Section 4.13 Repayment of Monies Held by Paying Agent......23
Section 4.14 Temporary Notes...............................24
ARTICLE V Default And Remedies................................24
Section 5.01 Events of Default.............................24
Section 5.02 Acceleration of Maturity; Rescission
and Annulment.................................24
Section 5.03 Collection of Indebtedness and Suits
for Enforcement by Indenture Trustee..........25
Section 5.04 Remedies; Priorities..........................27
Section 5.05 Optional Preservation of the Trust Estate.....29
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Section 5.06 Limitation of Suits...........................29
Section 5.07 Unconditional Rights of Noteholders to Receive
Principal and Interest........................30
Section 5.08 Restoration of Rights and Remedies............30
Section 5.09 Rights and Remedies Cumulative................30
Section 5.10 Delay or Omission Not a Waiver................30
Section 5.11 Control by Credit Enhancer or Noteholders.....31
Section 5.12 Waiver of Past Defaults.......................31
Section 5.13 Undertaking for Costs.........................32
Section 5.14 Waiver of Stay or Extension Laws..............32
Section 5.15 Sale of Trust Estate..........................32
Section 5.16 Action on Notes...............................34
Section 5.17 Performance and Enforcement of Certain
Obligations...................................34
ARTICLE VI The Indenture Trustee...............................35
Section 6.01 Duties of Indenture Trustee...................35
Section 6.02 Rights of Indenture Trustee...................37
Section 6.03 Individual Rights of Indenture Trustee........38
Section 6.04 Indenture Trustee's Disclaimer................38
Section 6.05 Notice of Event of Default....................38
Section 6.06 Reports by Indenture Trustee to Noteholders...38
Section 6.07 Compensation and Indemnity....................39
Section 6.08 Replacement of Indenture Trustee..............39
Section 6.09 Successor Indenture Trustee by Xxxxxx.........40
Section 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee....................41
Section 6.11 Eligibility; Disqualification.................42
Section 6.12 Preferential Collection of Claims
Against Issuer................................42
Section 6.13 Representations and Warranties................42
Section 6.14 Directions to Indenture Trustee...............43
Section 6.15 Indenture Trustee May Own Securities..........43
ARTICLE VII Noteholders' Lists and Reports......................43
Section 7.01 Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders......................43
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Section 7.02 Preservation of Information; Communications to
Noteholders...................................43
Section 7.03 Reports by Issuer.............................44
Section 7.04 Reports by Indenture Trustee..................44
ARTICLE VIII Accounts, Disbursements and Releases................45
Section 8.01 Collection of Money...........................45
Section 8.02 Trust Accounts................................45
Section 8.03 Officer's Certificate.........................46
Section 8.04 Termination Upon Distribution to Noteholders..46
Section 8.05 Release of Trust Estate.......................46
Section 8.06 Surrender of Notes Upon Final Payment.........47
ARTICLE IX Supplemental Indentures.............................47
Section 9.01 Supplemental Indentures Without Consent
of Noteholders................................47
Section 9.02 Supplemental Indentures With Consent
of Noteholders................................48
Section 9.03 Execution of Supplemental Indentures..........50
Section 9.04 Effect of Supplemental Indenture..............50
Section 9.05 Conformity with Trust Indenture Act...........50
Section 9.06 Reference in Notes to Supplemental Indentures.50
ARTICLE X Miscellaneous.......................................50
Section 10.01 Compliance Certificates and Opinions, etc....50
Section 10.02 Form of Documents Delivered to Indenture
Trustee......................................52
Section 10.03 Acts of Noteholders..........................53
Section 10.04 Notices, etc., to Indenture Trustee, Issuer,
Credit Enhancer and Rating Agencies..........54
Section 10.05 Notices to Noteholders; Waiver...............54
Section 10.06 Alternate Payment and Notice Provisions......55
Section 10.07 Conflict with Trust Indenture Act............55
Section 10.08 Effect of Headings...........................55
Section 10.09 Successors and Assigns.......................56
Section 10.10 Severability.................................56
Section 10.11 Benefits of Indenture........................56
Section 10.12 Legal Holidays...............................56
Section 10.13 GOVERNING LAW................................56
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Section 10.14 Counterparts.................................56
Section 10.15 Recording of Indenture.......................56
Section 10.16 Issuer Obligation............................56
Section 10.17 No Petition..................................57
Section 10.18 Inspection...................................57
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EXHIBITS
Exhibit A - Form of Notes
Appendix A - Definitions
vi
This Indenture, dated as of March 30, 2000, is between GMACM Home Loan
Trust 2000-HLTV1, a Delaware business trust, as issuer (the "Issuer"), and The
Bank of New York, a New York banking corporation, as indenture trustee (the
"Indenture Trustee").
WITNESSETH:
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Noteholders of the Issuer's Series
2000-HLTV1 GMACM Home Loan-Backed Term Notes (the "Notes").
GRANTING CLAUSE:
The Issuer hereby Grants to the Indenture Trustee on the Closing Date, as
trustee for the benefit of the Noteholders and the Credit Enhancer, all of the
Issuer's right, title and interest in and to all accounts, chattel paper,
general intangibles, contract rights, certificates of deposit, deposit accounts,
instruments, documents, letters of credit, money, advices of credit, investment
property, goods and other property consisting of, arising under or related to
whether now existing or hereafter created in any of the following: (a) the
Initial Home Loans and any Subsequent Home Loans, and all monies due or to
become due thereunder; (b) the Note Payment Account, and all funds on deposit or
credited thereto from time to time and all proceeds thereof; (c) the Capitalized
Interest Account, and all funds on deposit or credited thereto from time to time
(other than any income thereon), and the Pre-Funding Account, and all funds on
deposit or credited thereto from time to time; (d) the Policy; and (e) 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, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this Indenture.
The foregoing Grant shall inure to the benefit of the Credit Enhancer in
respect of draws made on the Policy and amounts owing from time to time pursuant
to the Insurance Agreement (regardless of whether such amounts relate to the
Notes or the Certificates), and such Grant shall continue in full force and
effect for the benefit of the Credit Enhancer until all such amounts owing to it
have been repaid in full.
The Indenture Trustee, as trustee on behalf of the Noteholders,
acknowledges such Xxxxx, accepts the trust under this Indenture in accordance
with the provisions hereof and agrees to perform its duties as Indenture Trustee
as required herein.
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"),
such 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 Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by XXX,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
Section 1.03 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) 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;
(c) "or" includes "and/or";
(d) "including" means "including without limitation";
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(e) words in the singular include the plural and words in the plural
include the singular;
(f) the term "proceeds" has the meaning ascribed thereto in the UCC; and
(g) 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 Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing the Notes, as evidenced by their execution thereof. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of such Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the Authorized Officers executing such Notes, as
evidenced by their execution of such Notes.
The terms of the Notes set forth in Exhibit A are part of the terms of
this Indenture.
Section 2.02 EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Issuer 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 Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Request authenticate and deliver
Notes for original issue in an aggregate initial principal amount of
$155,000,000. The Class A-1, Class A-2, Class A-3 and Class A-4 Notes shall have
an initial principal amount of $64,570,000, $18,887,000, $29,790,000 and
$41,753,000, respectively.
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Each Note shall be dated the date of its authentication. The Notes shall
be issuable as registered Notes, and the Notes shall be issuable in minimum
denominations of $25,000 and integral multiples of $1,000 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
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
ARTICLE III
Covenants
Section 3.01 COLLECTION OF PAYMENTS WITH RESPECT TO THE HOME LOANS. The
Indenture Trustee shall establish and maintain with itself the Note Payment
Account in which the Indenture Trustee shall, subject to the terms of this
paragraph, deposit, on the same day as it is received from the Servicer, each
remittance received by the Indenture Trustee with respect to the Home Loans. The
Indenture Trustee shall make all payments of principal of and interest on the
Notes, subject to Section 3.03 as provided in Section 3.05 herein from monies on
deposit in the Note Payment Account.
Section 3.02 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will maintain in
the City of New York, an office or agency where, subject to satisfaction of
conditions set forth herein, Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
Section 3.03 MONEY FOR PAYMENTS TO BE HELD IN TRUST; PAYING AGENT. As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Note Payment
Account pursuant to Section 3.01 shall be made on behalf of the Issuer by the
Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the
Note Payment Account for payments of Notes shall be paid over to the Issuer
except as provided in this Section 3.03. The Issuer hereby appoints the
Indenture Trustee to act as initial Paying Agent hereunder. The Issuer will
cause each Paying Agent other than the Indenture Trustee to execute and deliver
to the Indenture Trustee an instrument in which such Paying Agent shall agree
with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent,
it hereby so agrees), subject to the provisions of this Section 3.03, that such
Paying Agent will:
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(a) hold all sums held by it for the payment of amounts due with respect to
the Notes in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(b) give the Indenture Trustee and the Credit Enhancer written notice of
any default by the Issuer of which it has actual knowledge in the making of any
payment required to be made with respect to the Notes;
(c) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture Trustee
all sums so held in trust by such Paying Agent;
(d) immediately resign as Paying Agent and forthwith pay to the Indenture
Trustee all sums held by it in trust for the payment of Notes, if at any time it
ceases to meet the standards required to be met by a Paying Agent at the time of
its appointment;
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith; and
(f) deliver to the Indenture Trustee a copy of the statement to Noteholders
prepared with respect to each Payment Date by the Servicer pursuant to Section
4.01 of the Servicing Agreement.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Request
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Noteholder of such Note
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
an Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Indenture Trustee may also adopt and employ,
at the expense and direction of the Issuer, any
5
other reasonable means of notification of such repayment (including, but not
limited to, mailing notice of such repayment to Noteholders the Notes which have
been called but have not been surrendered for redemption or whose right to or
interest in monies due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Noteholder).
Section 3.04 EXISTENCE. The Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Home Loans and each other
instrument or agreement included in the Trust Estate.
Section 3.05 PRIORITY OF DISTRIBUTIONS .
(a) In accordance with Section 3.03(a) of the Servicing Agreement, the
priority of distributions on each Payment Date from Principal Collections and
Interest Collections in the Note Payment Account, any Policy Draw Amount
deposited into the Note Payment Account pursuant to Section 3.28(a), and any
payment under the Limited Reimbursement Agreement deposited therein pursuant to
Section 3.30, is as follows:
(i) for payment by the Paying Agent to the Noteholders of each Class
of Notes, PRO RATA, interest for the related Interest Period at the related
Note Rate on the related Note Balance immediately prior to such Payment
Date;
(ii) for payment by the Paying Agent to the Noteholders, as a
distribution of principal on the Notes, the Principal Collection
Distribution Amount for such Payment Date, to be paid to the Noteholders of
the Class of Notes with the lowest numerical designation, until the Note
Balance of such Class has been reduced to zero;
(iii) for payment by the Paying Agent to the Noteholders, as a
distribution of principal on the Notes, the Liquidation Loss Distribution
Amount for such Payment Date, to be paid to the Noteholders of the Class of
Notes with the lowest numerical designation, until the Note Balance of such
Class has been reduced to zero;
(iv) to pay to the Credit Enhancer, the Premium Amount for the Policy
and any previously unpaid Premium Amounts, with interest thereon as
provided in the Insurance Agreement, and to the designee or designees of
the Credit Enhancer pursuant to Section 3.30, the amount of any monthly fee
for the Limited Reimbursement Agreement, on a pro rata basis;
(v) to the Credit Enhancer, to reimburse it for prior draws made on
the Policy, with interest thereon as provided in the Insurance Agreement,
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provided, that no such reimbursement shall be made in respect of amounts
that were paid to the Indenture Trustee under the Limited Reimbursement
Agreement, or for which the Credit Enhancer is entitled to reimbursement
under the Limited Reimbursement Agreement;
(vi) for payment by the Paying Agent to the Noteholders, as a
distribution of principal on the Notes, the Overcollateralization Increase
Amount for such Payment Date, to be paid to the Noteholders of the Class of
Notes with the lowest numerical designation, until the Note Balance of such
Class has been reduced to zero;
(vii) to pay to the Credit Enhancer, any other amounts owed to the
Credit Enhancer pursuant to the Insurance Agreement;
(viii) to the Indenture Trustee, any amounts owing to the Indenture
Trustee pursuant to Section 6.07 to the extent remaining unpaid; and
(ix) any remaining amount, to the Distribution Account, for
distribution to the Certificateholders by the Certificate Paying Agent;
provided, that in the event that on a Payment Date a Credit Enhancer Default
shall have occurred and be continuing, then the priorities of distributions
described above will be adjusted such that payments of any amounts to be paid to
the Credit Enhancer will not be paid until the full amount of interest and
principal in accordance with clauses (i) through (iii) above that are due and
required to be paid by the Credit Enhancer on the Notes on such Payment Date
have been paid and provided, further, that on the Final Payment Date, the amount
to be paid pursuant to clause (ii) above shall be equal to the Note Balance
immediately prior to such Payment Date. For purposes of the foregoing, required
payments of principal on the Notes on each Payment Date will include the portion
allocable to the Notes of all Liquidation Loss Amounts for such Payment Date and
for all previous Collection Periods until paid or covered in full, to the extent
not otherwise covered by a Liquidation Loss Distribution Amount or a draw on the
Policy (up to the outstanding Note Balance).
On each Payment Date, the Paying Agent shall apply, from amounts on
deposit in the Note Payment Account, and in accordance with the Servicing
Certificate, the amounts set forth above in the order of priority set forth
above.
Amounts paid to Noteholders shall be paid in respect of the Notes in
accordance with the applicable percentage as set forth in paragraph (b) below.
Interest on the Class A-1 Notes will be computed on the basis of the actual
number of days in each Interest Period and a 360-day year. Interest on the Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes will be computed on the basis of
a 360-day year consisting of twelve 30-day months. Any installment of interest
or principal payable on any Note that is punctually paid or duly provided for by
the Issuer on the applicable Payment Date shall be paid to the Noteholder of
record thereof on the immediately preceding Record Date by wire transfer to an
account specified in writing by such Noteholder reasonably satisfactory to the
Indenture Trustee, or by check or money order mailed to such Noteholder at such
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Noteholder's address appearing in the Note Register, the amount required to be
distributed to such Noteholder on such Payment Date pursuant to such
Noteholder's Notes; provided, that the Indenture Trustee shall not pay to any
such Noteholder any amounts required to be withheld from a payment to such
Noteholder by the Code.
(b) Principal of each Note shall be due and payable in full on the Final
Payment Date as provided in the applicable form of Note set forth in Exhibit A.
All principal payments on the Notes of each Class shall be made in accordance
with the priorities set forth in paragraph (a) above to the Noteholders entitled
thereto in accordance with the related Percentage Interests represented thereby.
Upon written notice to the Indenture Trustee by the Issuer, the Indenture
Trustee shall notify the Person in the name of which a Note is registered at the
close of business on the Record Date preceding the Final Payment Date or other
final Payment Date, as applicable. Such notice shall be mailed or faxed no later
than five Business Days prior to the Final Payment Date or such other final
Payment Date and, unless such Note is then a Book-Entry Note, shall specify that
payment of the principal amount and any interest due with respect to such Note
at the Final Payment Date or such 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.
(c) On each Payment Date, the Overcollateralization Amount available to
cover any Liquidation Loss Amounts on such Payment Date shall be deemed to be
reduced by an amount equal to such Liquidation Loss Amounts (except to the
extent that such Liquidation Loss Amounts were covered on such Payment Date by a
Liquidation Loss Distribution Amount).
Section 3.06 PROTECTION OF TRUST ESTATE.
(a) The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action 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 Trust to enforce any of the Home 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 any portion of the Trust Estate that consists of money or is
evidenced by an instrument, certificate or other writing from the jurisdiction
8
in which it was held at the date of the most recent Opinion of Counsel delivered
pursuant to Section 3.07 (or from the jurisdiction in which it was held as
described in the Opinion of Counsel delivered at the Closing Date pursuant to
Section 3.07(a), if no Opinion of Counsel has yet been delivered pursuant to
Section 3.07(b)) unless the 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 Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.06.
Section 3.07 OPINIONS AS TO TRUST ESTATE.
On the Closing Date, the Issuer shall furnish to the Indenture Trustee and
the Owner Trustee an Opinion of Counsel at the expense of the Issuer stating
that, upon delivery of the Mortgage Notes relating to the Initial Home Loans to
the Indenture Trustee or the Custodian in the State of Pennsylvania, the
Indenture Trustee will have a perfected, first priority security interest in
such Home Loans.
On or before December 31st in each calendar year, beginning in 2000, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel at the
expense of the Issuer either stating that, in the opinion of such counsel, no
further action is necessary to maintain a perfected, first priority security
interest in the Home Loans until December 31 in the following calendar year or,
if any such action is required to maintain such security interest in the Home
Loans, 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 security interest in the Home Loans until
December 31 in the following calendar year.
Section 3.08 PERFORMANCE OF OBLIGATIONS; SERVICING AGREEMENT.
(a) The Issuer 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 Issuer 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 Issuer
shall be deemed to be action taken by the Issuer.
(c) The Issuer shall not take any action or permit any action to be taken
by others that would release any Person from any of such Person's covenants or
obligations under any of the documents relating to the Home Loans or under any
instrument included in the Trust Estate, or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the documents relating to the Home Loans or
any such instrument, except such actions as the Servicer is expressly permitted
to take in the Servicing Agreement.
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(d) The Issuer may retain an administrator and may enter into contracts
with other Persons for the performance of the Issuer's obligations hereunder,
and performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuer.
Section 3.09 NEGATIVE COVENANTS. So long as any Notes are Outstanding, the
Issuer shall not:
(a) except as expressly permitted by this Indenture, sell, transfer,
exchange or otherwise dispose of the Trust Estate, unless directed to do so by
the Indenture Trustee pursuant to Section 5.04 hereof;
(b) 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;
(c) (i) 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, (ii) 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 (iii) permit the lien of this Indenture not to constitute a
valid first priority security interest in the Trust Estate; or
(d) impair or cause to be impaired the Issuer's interest in the Home Loans,
the Purchase Agreement or in any other Basic Document, if any such action would
materially and adversely affect the interests of the Noteholders or the Credit
Enhancer.
Section 3.10 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer shall deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year of the
Issuer (commencing with the fiscal year ending on December 31, 2000), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of the Issuer during such year and of its
performance under this Indenture and the Trust Agreement has been made under
such Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under this
Indenture and the provisions of the Trust Agreement throughout such year, or, if
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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 3.11 RECORDATION OF ASSIGNMENTS. The Issuer shall enforce the
obligation of the Seller under the Purchase Agreement to submit or cause to be
submitted for recordation all Assignments of Mortgages within 60 days of receipt
of recording information by the Servicer.
Section 3.12 REPRESENTATIONS AND WARRANTIES CONCERNING THE HOME LOANS. The
Indenture Trustee, as pledgee of the Home Loans, shall have the benefit of the
representations and warranties made by the Seller in Section 3.1(a) and Section
3.1(b) of the Purchase Agreement concerning the Home Loans and the right to
enforce the remedies against the Seller provided in such Section 3.1(a) or
Section 3.1(b) to the same extent as though such representations and warranties
were made directly to the Indenture Trustee.
Section 3.13 ASSIGNEE OF RECORD OF THE HOME LOANS. As pledgee of the Home
Loans, the Indenture Trustee shall hold record title to the Home Loans by being
named as payee in the endorsements of the Mortgage Notes and assignee in the
Assignments of Mortgage to be recorded under Section 2.1 of the Purchase
Agreement. Except as expressly provided in the Purchase Agreement or in the
Servicing Agreement with respect to any specific Home Loan, the Indenture
Trustee shall not execute any endorsement or assignment or otherwise release or
transfer such record title to any of the Home Loans until such time as the
remaining Trust Estate may be released pursuant to Section 8.05(b). The
Indenture Trustee's holding of such record title shall in all respects be
subject to its fiduciary obligations to the Noteholders hereunder.
Section 3.14 SERVICER AS AGENT AND BAILEE OF THE INDENTURE TRUSTEE. Solely
for purposes of perfection under Section 9-305 of the UCC or other similar
applicable law, rule or regulation of the state in which such property is held
by the Servicer, the Issuer and the Indenture Trustee hereby acknowledge that
the Servicer is acting as agent and bailee of the Indenture Trustee in holding
amounts on deposit in the Custodial Account pursuant to Section 3.02 of the
Servicing Agreement that are allocable to the Home Loans, as well as the agent
and bailee of the Indenture Trustee in holding any Related Documents released to
the Servicer pursuant to Section 3.06(c) of the Servicing Agreement, and any
other items constituting a part of the Trust Estate which from time to time come
into the possession of the Servicer. It is intended that, by the Servicer's
acceptance of such agency pursuant to Section 3.02 of the Servicing Agreement,
the Indenture Trustee, as a pledgee of the Home Loans, will be deemed to have
possession of such Related Documents, such monies and such other items for
purposes of Section 9-305 of the UCC of the state in which such property is held
by the Servicer.
Section 3.15 INVESTMENT COMPANY ACT. The Issuer shall not become an
"investment company" or 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 Issuer shall be in compliance with this Section 3.15
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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 3.16 ISSUER MAY CONSOLIDATE, ETC.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) 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, in form reasonably
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and to the Certificate Paying Agent,
on behalf of the Certificateholders and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing;
(iii) the Credit Enhancer shall have consented thereto and each Rating
Agency shall have notified the Issuer that such transaction will not cause
a Rating Event, without taking into account the Policy;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee and the Credit
Enhancer) to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee 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 relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person,
unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer the conveyance or transfer of which is hereby
restricted shall (A) be a United States citizen or a Person organized and
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existing under the laws of the United States of America or any state, (B)
expressly assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, 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 Issuer to be performed or observed,
all as provided herein, (C) expressly agrees 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 Noteholders of the Notes,
(D) unless otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer against and from
any loss, liability or expense arising under or related to this Indenture
and the Notes and (E) expressly agrees 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) the Credit Enhancer shall have consented thereto, and each
Rating Agency shall have notified the Issuer that such transaction will not
cause a Rating Event, if determined without regard to the Policy;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer or any Noteholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee 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 3.17 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.16(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.16(b), the Issuer shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
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of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee of such conveyance or transfer.
Section 3.18 NO OTHER BUSINESS. The Issuer shall not engage in any business
other than financing, purchasing, owning and selling and managing the Home Loans
and the issuance of the Notes and Certificates in the manner contemplated by
this Indenture and the Basic Documents and all activities incidental thereto.
Section 3.19 NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.20 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by this Indenture or the other Basic Documents, the Issuer 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 3.21 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.22 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RELATED
Documents. The recitals contained herein shall be taken as the statements of the
Issuer, and the Owner Trustee and the Indenture Trustee assume no responsibility
for the correctness of the recitals contained herein. The Owner Trustee and the
Indenture Trustee make no representations as to the validity or sufficiency of
this Indenture or any other Basic Document, of the Certificates (other than the
signatures of the Owner Trustee or the Indenture Trustee on the Certificates) or
the Notes, or of any Related Documents. The Owner Trustee and the Indenture
Trustee shall at no time have any responsibility or liability with respect to
the sufficiency of the Trust Estate or its ability to generate the payments to
be distributed to Certificateholders under the Trust Agreement or the
Noteholders under this Indenture, including, the compliance by the Depositor or
the Seller with any warranty or representation made under any Basic Document or
in any related document or the accuracy of any such warranty or representation,
or any action of the Certificate Paying Agent, the Certificate Registrar or any
other person taken in the name of the Owner Trustee or the Indenture Trustee.
Section 3.23 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (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
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the Issuer may make, or cause to be made, (x) distributions to the Owner Trustee
and the Certificateholders as contemplated by, and to the extent funds are
available for such purpose under, the Trust Agreement and (y) payments to the
Servicer pursuant to the terms of the Servicing Agreement. The Issuer will not,
directly or indirectly, make payments to or distributions from the Custodial
Account except in accordance with this Indenture and the other Basic Documents.
Section 3.24 NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee, the Credit Enhancer and the Rating Agencies prompt written
notice of each Event of Default hereunder and under the Trust Agreement.
Section 3.25 FURTHER INSTRUMENTS AND ACTS. Upon request of the Indenture
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 3.26 STATEMENTS TO NOTEHOLDERS. On each Payment Date, each of the
Indenture Trustee and the Certificate Registrar shall forward by mail to the
Credit Enhancer, the Depositor, the Owner Trustee and each Rating Agency, and
shall make available to each Noteholder and each Certificateholder,
respectively, the Servicing Certificate provided to the Indenture Trustee by the
Servicer relating to such Payment Date and delivered pursuant to Section 4.01 of
the Servicing Agreement.
The Indenture Trustee will make the monthly statement to Securityholders
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Securityholders and the Credit
Enhancer, and other parties to this Indenture via the Indenture Trustee's
internet website. The Indenture Trustee's internet website shall initially be
located at "xxx.XXXXxxxxxxxx.xxx". Assistance in using the website can be
obtained by calling Mortgage Backed Securities Administration at (000) 000-0000.
Parties that are unable to use the above distribution options are entitled to
have a paper copy mailed to them via first class mail by calling Mortgage Backed
Securities Administration and indicating such. The Indenture Trustee shall have
the right to change the way the statement to Securityholders are distributed in
order to make such distribution more convenient and/or more accessible to the
above parties and the Indenture Trustee shall provide timely and adequate
notification to all above parties regarding any such changes.
Section 3.27 DETERMINATION OF NOTE RATE. On the second LIBOR Business Day
immediately preceding (i) the Closing Date in the case of the first Interest
Period and (ii) the first day of each succeeding Interest Period, the Indenture
Trustee shall determine LIBOR and the applicable Note Rate for such Interest
Period and shall inform the Issuer, the Servicer and the Depositor.
Section 3.28 PAYMENTS UNDER THE POLICY.
(a) If the Servicing Certificate specifies a Policy Draw Amount for any Payment
Date, the Indenture Trustee shall make a draw on the Policy in an amount, if
any, equal to the Policy Draw Amount for such Payment Date, PROVIDED, HOWEVER,
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that if the Indenture Trustee receives part or all of such draw as a payment
pursuant to the Limited Reimbursement Agreement, the Indenture Trustee shall not
make a draw on the Policy to the extent of such payment. The Indenture Trustee
shall deposit or cause to be deposited such Policy Draw Amount into the Note
Payment Account on such Payment Date. For purposes of the foregoing, the amount
on deposit in the Note Payment Account and available to be distributed as
interest on any Payment Date shall include all amounts on deposit in such
account with respect to such Payment Date, other than the Principal Collection
Distribution Amount and the Liquidation Loss Distribution Amount (if any) to be
distributed on such Payment Date. Notwithstanding the foregoing, if and to the
extent a court of competent jurisdiction orders the repayment by the Indenture
Trustee to any party to the Limited Reimbursement Agreement of the amount paid
by such party to the Indenture Trustee, the Indenture Trustee shall make a draw
on the Policy pursuant to the terms hereof as if such counterparty had not made
any payment to the Indenture Trustee.
(b) The Indenture Trustee shall submit, if a Policy Draw Amount is
specified in any statement to Securityholders prepared pursuant to Section 4.01
of the Servicing Agreement, the Notice of Nonpayment and Demand for Payment of
Insured Amounts (in the form attached as Exhibit A to the Policy) to the Credit
Enhancer no later than 12:00 noon, New York City time, on the second (2nd)
Business Day prior to the applicable Payment Date.
Section 3.29 REPLACEMENT ENHANCEMENT. The Issuer (or the Servicer on its
behalf) may, at its expense, in accordance with and upon satisfaction of the
conditions set forth herein, but shall not be required to, obtain a surety bond,
letter of credit, guaranty or reserve account as a Permitted Investment for
amounts on deposit in the Capitalized Interest Account, or may arrange for any
other form of additional credit enhancement; provided, that after prior notice
thereto, no Rating Agency shall have informed the Issuer that a Rating Event
would occur as a result thereof (without taking the Policy into account); and
provided further, that the issuer of any such instrument or facility and the
timing and mechanism for drawing on such additional enhancement shall be
acceptable to the Indenture Trustee and the Credit Enhancer. It shall be a
condition to procurement of any such additional credit enhancement that there be
delivered to the Indenture Trustee and the Credit Enhancer (a) an Opinion of
Counsel, acceptable in form to the Indenture Trustee and the Credit Enhancer,
from counsel to the provider of such additional credit enhancement with respect
to the enforceability thereof and such other matters as the Indenture Trustee or
the Credit Enhancer may require and (b) an Opinion of Counsel to the effect that
the procurement of such additional enhancement would not (i) adversely affect in
any material respect the tax status of the Notes or the Certificates or (ii)
cause the Issuer to be taxable as an association (or a publicly traded
partnership) for federal income tax purposes or to be classified as a taxable
mortgage pool within the meaning of Section 7701(i) of the Code.
Section 3.30 PAYMENTS UNDER THE LIMITED REIMBURSEMENT AGREEMENT. The
Indenture Trustee shall deposit any amounts received under the Limited
Reimbursement Agreement into the Note Payment Account. Any such amounts shall be
distributed on the related Payment Date pursuant to Section 3.05(a). The
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Indenture Trustee shall make the payments to the designee or designees of the
Credit Enhancer under Section 3.05(a)(iv) pursuant to written instructions from
the Credit Enhancer to the Indenture Trustee.
ARTICLE IV
The Notes; Satisfaction and Discharge of Indenture
Section 4.01 THE NOTES;. The Notes shall be registered in the name of a
nominee designated by the Depository. Beneficial Owners will hold interests in
the Notes through the book-entry facilities of the Depository in minimum initial
Note Balances of $25,000 and integral multiples of $1,000 in excess thereof.
The Indenture Trustee 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 Noteholders 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, 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
Noteholder of the Notes shall not be deemed inconsistent if they are made with
respect to different Beneficial Owners. The Indenture Trustee 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 Issuer and the Indenture Trustee, no Note may be
transferred by the Depository except to a successor Depository 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 Indenture Trustee, at the request of the Servicer and with the
approval of the Issuer, 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 Issuer by
the Owner Trustee, not in its individual capacity but solely as Owner Trustee
and upon Issuer Order, authenticated by the Note Registrar and delivered by the
Indenture Trustee to or upon the order of the Issuer.
Section 4.02 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE OF
NOTES; APPOINTMENT OF CERTIFICATE REGISTRAR. The Issuer shall cause to be kept
at the Indenture Trustee's Corporate Trust Office a Note Register in which,
subject to such reasonable regulations as it may prescribe, the Note Registrar
shall provide for the registration of Notes and of transfers and exchanges of
Notes as herein provided. The Issuer hereby appoints the Indenture Trustee as
the initial Note Registrar.
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Subject to the restrictions and limitations set forth below, upon
surrender for registration of transfer of any Note at the Corporate Trust
Office, the Issuer shall execute, and the Note Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes in authorized initial Note Balances evidencing the same aggregate
Percentage Interests.
Subject to the foregoing, at the option of the Noteholders, Notes may be
exchanged for other Notes of like tenor, in each case in authorized initial Note
Balances evidencing the same aggregate Percentage Interests, upon surrender of
the Notes to be exchanged at the Corporate Trust Office of the Note Registrar.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute and
the Note Registrar shall authenticate and deliver the 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 Note
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer in form reasonably satisfactory to the Note Registrar duly executed by,
the Noteholder 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.
No service charge shall be imposed for any registration of transfer or
exchange of Notes, but the Note Registrar 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.
All Notes surrendered for registration of transfer and exchange shall be
cancelled by the Note Registrar and delivered to the Indenture Trustee for
subsequent destruction without liability on the part of either.
The Issuer hereby appoints the Indenture Trustee as Certificate Registrar
to keep at its Corporate Trust Office a Certificate Register pursuant to Section
3.09 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 3.05
of the Trust Agreement. The Indenture Trustee hereby accepts such appointment.
Each purchaser of a Note, by its acceptance of the Note, shall be deemed
to have represented that the acquisition of such Note by the purchaser does not
constitute or give rise to a prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code, for which no statutory, regulatory or
administrative exemption is available.
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Indenture Trustee that such Note has been acquired by a bona fide purchaser,
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and provided that the requirements of Section 8-405 of the UCC are met, the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same class; 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 Issuer 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 Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 4.03, the
Issuer may require the payment by the Noteholder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 4.03 in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, 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 Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any agent of the
Issuer 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 Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.
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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 Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer 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 Indenture
Trustee.
Section 4.06 BOOK-ENTRY NOTES. Each Class of Notes, upon original issuance,
shall 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 Issuer. Such 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 shall receive a Definitive Note representing such
Beneficial Owner's interest in such Note, except as provided in Section 4.08.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to Beneficial Owners pursuant to Section 4.08:
(a) the provisions of this Section 4.06 shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee 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;
(c) 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;
(d) 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
(e) whenever this Indenture requires or permits actions to be taken based
upon instructions or directions of Noteholders of Notes evidencing a specified
percentage of the Note Balances of the Notes, the Depository shall be deemed to
represent such percentage 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 Indenture Trustee.
Section 4.07 NOTICES TO DEPOSITORY. Whenever a notice or other
communication to the Noteholders of the Notes 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 shall give all such notices and
communications specified herein to be given to Noteholders of the Notes to the
Depository, and shall have no obligation to the Beneficial Owners.
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Section 4.08 DEFINITIVE NOTES. If (i) the Indenture Trustee determines that
the Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Notes and, if requested by the Servicer,
the Indenture Trustee is unable to locate a qualified successor, (ii) the
Indenture Trustee elects to terminate the book-entry system through the
Depository, or (iii) after the occurrence of an Event of Default, Beneficial
Owners of Notes representing beneficial interests aggregating at least a
majority of the aggregate Note Balance of the Notes advise the Depository in
writing that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Beneficial Owners, then the Depository
shall notify all Beneficial Owners and the Indenture Trustee of the occurrence
of any such event and of the availability of Definitive Notes to Beneficial
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Depository (or
Percentage Interest of the Book-Entry Notes being transferred pursuant to clause
(iii) above), accompanied by registration instructions, the Issuer shall execute
and the Indenture Trustee shall authenticate the Definitive Notes in accordance
with the instructions of the Depository. None of the Issuer, the Note Registrar
or the Indenture Trustee shall be liable for any delay in delivery of such
instructions, and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Noteholders of the Definitive Notes as
Noteholders.
Section 4.09 TAX TREATMENT. The Issuer has entered into this Indenture, and
the Notes will be issued, with the intention that, for federal, state and local
income, single business and franchise tax purposes, the Notes will qualify as
indebtedness. The Issuer, by entering into this Indenture, and each 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 the 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,
3.16, 3.18 and 3.19, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 and the obligations of the Indenture Trustee under Section 4.11) and (vi)
the rights of Noteholders as beneficiaries hereof with respect to the property
so deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 4.03 and (ii)
Notes for whose payment money has theretofore been deposited in
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trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture
Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation
a) have become due and payable,
b) will become due and payable at the Final Payment Date
within one year, or
c) have been declared immediately due and payable pursuant
to Section 5.02.
and the Issuer, in the case of a. or b. above, has irrevocably deposited
or caused to be irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United States of
America (which will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes and Certificates then outstanding not
theretofore delivered to the Indenture Trustee for cancellation when due
on the Final Payment Date;
(3) the Issuer has paid or caused to be paid all other sums
payable hereunder and under the Insurance Agreement by the
Issuer; and
(4) the Issuer has delivered to the Indenture Trustee and
the Credit Enhancer an Officer's Certificate and an Opinion of
Counsel, each meeting the applicable requirements of Section
10.01 and 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 not have any material adverse tax consequences to
the Issuer, any Noteholders or any Certificateholders.
Section 4.11 APPLICATION OF TRUST MONEY. All monies deposited with the
Indenture Trustee 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
Certificate Paying Agent, as the Indenture Trustee may determine, to the
Securityholders of Securities, of all sums due and to become due thereon for
principal and interest; but such monies need not be segregated from other funds
except to the extent required herein or required by law.
Section 4.12 SUBROGATION AND COOPERATION.
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(a) The Issuer and the Indenture Trustee acknowledge that (i) to the extent
the Credit Enhancer makes payments under the Policy on account of principal of
or interest on the Home Loans, the Credit Enhancer will be fully subrogated to
the rights the Noteholders to receive such principal of and interest on the Home
Loans, and (ii) the Credit Enhancer shall be paid such principal and interest
only from the sources and in the manner provided herein and in the Insurance
Agreement for the payment of such principal and interest.
The Indenture Trustee shall cooperate in all respects with any reasonable
request by the Credit Enhancer for action to preserve or enforce the Credit
Enhancer's rights or interest under this Indenture or the Insurance Agreement,
consistent with this Indenture and without limiting the rights of the
Noteholders as otherwise set forth in the Indenture, including upon the
occurrence and continuance of a default under the Insurance Agreement, a request
(which request shall be in writing) to take any one or more of the following
actions:
(i) institute Proceedings for the collection of all amounts then
payable on the Notes or under this Indenture in respect to the Notes and
all amounts payable under the Insurance Agreement and to enforce any
judgment obtained and collect from the Issuer monies adjudged due;
(ii) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private Sales (as defined in
Section 5.15 hereof) called and conducted in any manner permitted by law;
(iii) file or record all assignments that have not previously been
recorded;
(iv) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture; and
(v) 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 Credit Enhancer hereunder.
Following the payment in full of the Notes, the Credit Enhancer shall
continue to have all rights and privileges provided to it under this Section and
in all other provisions of this Indenture, until all amounts owing to the Credit
Enhancer have been paid in full.
Section 4.13 REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
monies then held by any Paying Agent (other than the Indenture Trustee) under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.05; and thereupon, such Paying Agent shall be released from all
further liability with respect to such monies.
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Section 4.14 TEMPORARY NOTES. Pending the preparation of any Definitive
Notes, the Issuer may execute and upon its written direction, the Indenture
Trustee 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 Issuer 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 office or agency of the Indenture
Trustee, without charge to the Noteholder. Upon surrender for cancellation of
any one or more temporary Notes, the Issuer shall execute and the Indenture
Trustee shall authenticate and make available for delivery, in exchange
therefor, Definitive Notes of authorized denominations and of like tenor 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.
ARTICLE V
Default And Remedies
Section 5.01 EVENTS OF DEFAULT. The Issuer shall deliver to the Indenture
Trustee and the Credit Enhancer, within five days after learning of the
occurrence of any event that with the giving of notice and the lapse of time
would become an Event of Default under clause (c) of the definition of "Event of
Default" written notice in the form of an Officer's Certificate of its status
and what action the Issuer is taking or proposes to take with respect thereto.
Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default shall occur and be continuing, then and in every such case the
Indenture Trustee, acting at the direction of the Credit Enhancer or the
Noteholders of Notes representing not less than a majority of the aggregate Note
Balance of the Notes, with the written consent of the Credit Enhancer, may
declare the Notes to be immediately due and payable by a notice in writing to
the Issuer (and to the Indenture Trustee if given by Noteholders); and upon any
such declaration, the unpaid principal amount 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 provided in this Article V, the Credit Enhancer or the Noteholders
of Notes representing a majority of the aggregate Note Balance of the Notes,
with the written consent of the Credit Enhancer, by written notice to the Issuer
and the Indenture Trustee, may in writing waive the related Event of Default and
rescind and annul such declaration and its consequences if:
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(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on the Notes and all
other amounts that would then be due hereunder or upon the Notes if the
Event of Default giving rise to such acceleration had not occurred;
(ii) 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
(iii) 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 Issuer covenants that if default in the payment of (i) any interest
on any Note when the same becomes due and payable, and such default continues
for a period of five days, or (ii) the principal of or any installment of the
principal of any Note when the same becomes due and payable, the Issuer shall,
upon demand of the Indenture Trustee, pay to it, for the benefit of the
Noteholders, the entire amount then due and payable on the Notes for principal
and interest, with interest on 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 Issuer 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 10.17 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 Issuer or other obligor on the Notes and collect in the manner provided by
law out of the property of the Issuer or other obligor on the Notes, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default shall occur and be continuing, the Indenture Trustee,
subject to the provisions of Section 10.17 hereof, may, as more particularly
provided in Section 5.04, in its discretion proceed to protect and enforce its
rights and the rights of the Noteholders by such appropriate Proceedings as the
Indenture Trustee shall deem most effective 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
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enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) If there shall be pending, relative to the Issuer or any other obligor
on 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 if a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or if
there shall be any other comparable judicial Proceedings relative to the Issuer
or other any other obligor on the Notes, or relative to the creditors or
property of the Issuer or such other obligor, then the Indenture Trustee,
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 entire 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 Noteholders 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 Noteholders allowed in any judicial proceedings relative to
the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event 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
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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.
(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 Noteholder 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 Noteholders.
(g) In any Proceedings to which the Indenture Trustee shall be a party
(including any Proceedings involving the interpretation of any provision of this
Indenture), the Indenture Trustee shall be held to represent all Noteholders,
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, then the
Indenture Trustee, subject to the provisions of Section 10.17 hereof, with the
written consent of the Credit Enhancer may, or, at the written direction of the
Credit Enhancer, shall, do one or more of the following, in each case subject to
Section 5.05:
(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,
and all amounts payable under the Insurance Agreement, enforce any judgment
obtained, and collect from the Issuer and any other obligor on the 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 Noteholders; and
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(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 Credit Enhancer, which consent will
not be unreasonably withheld, and the Noteholders of 100% of the aggregate Note
Balance of the Notes, (B) the proceeds of such sale or liquidation distributable
to Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon the Notes for principal and interest and to reimburse the Credit
Enhancer for any amounts drawn under the Policy and any other amounts due the
Credit Enhancer under the Insurance Agreement or (C) the Indenture Trustee
determines that the Home Loans will not continue to provide sufficient funds for
the payment of principal of and interest on the 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 Credit Enhancer, which consent will not be
unreasonably withheld, and the Noteholders of 66 2/3% of the aggregate Note
Balance of the Notes. In determining such sufficiency or insufficiency with
respect to clause (B) and (C) above, the Indenture Trustee may, but need not,
obtain and rely, and shall be protected in relying in good faith, 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. Notwithstanding the foregoing,
provided that a Servicing Default shall not have occurred, any Sale (as defined
in Section 5.15 hereof) of the Trust Estate shall be made subject to the
continued servicing of the Home Loans by the Servicer as provided in the
Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out such money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.07;
SECOND: to the Noteholders for amounts due and unpaid on the related
Notes for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Notes for
interest from amounts available in the Trust Estate for such
Noteholders;
THIRD: to the Noteholders for amounts due and unpaid on the related
Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Notes for
principal, from amounts available in the Trust Estate for such
Noteholders, until the respective Note Balances of such Notes have
been reduced to zero;
FOURTH: to the payment of all amounts due and owing the Credit
Enhancer under the Insurance Agreement;
FIFTH: to the Certificate Paying Agent for amounts due under Article
VIII of the Trust Agreement; and
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SIXTH: to the payment of the remainder, if any, to the Issuer or
any other person legally entitled thereto.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.04. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder a notice
that states the record date, the payment date and the amount to be paid.
Section 5.05 OPTIONAL PRESERVATION OF THE TRUST ESTATE. If the Notes have
been declared 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, but need not (but shall at the written direction of
the Credit Enhancer), 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 Issuer including payment to the Credit Enhancer,
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, and shall be protected in
relying in good faith, 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. No Noteholder 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 provisions of Section 10.17 hereof:
(a) such Noteholder shall have previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Noteholders of not less than 25% of the aggregate Note Balance of
the Notes shall have made 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;
(c) such Noteholder or Noteholders shall have offered the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
by it in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute such Proceedings;
and
(e) no direction inconsistent with such written request shall have been
given to the Indenture Trustee during such 60-day period by the Noteholders of a
majority of the aggregate Note Balance of the Notes or by the Credit Enhancer.
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It is understood and intended that no Noteholder 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 Noteholders or
to obtain or to seek to obtain priority or preference over any other Noteholders
or to enforce any right under this Indenture, except in the manner herein
provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the aggregate Note Balance of the Notes,
the Indenture Trustee shall act at the direction of the group of Noteholders
with the greater Note Balance. In the event that the Indenture Trustee shall
receive conflicting or inconsistent requests and indemnity from two or more
groups of Noteholders representing the same Note Balance, then the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
Section 5.07 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Subject to the provisions of this Indenture, the Noteholder 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 Noteholder.
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 Issuer, 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, the Credit Enhancer or 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, 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, the Credit Enhancer or any Noteholder 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
30
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 CREDIT ENHANCER OR NOTEHOLDERS. The Credit Enhancer
(so long as no Credit Enhancer Default exists) or the Noteholders of a majority
of the aggregate Note Balance of Notes with the consent of the Credit Enhancer,
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:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) subject to the express terms of Section 5.04, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by the Credit
Enhancer (so long as no Credit Enhancer Default exists) or by the Noteholders of
Notes representing not less than 100% of the aggregate Note Balance of the Notes
with the consent of the Credit Enhancer;
(c) if the conditions set forth in Section 5.05 shall have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to such
Section, then any direction to the Indenture Trustee by Noteholders of Notes
representing less than 100% of the aggregate Note Balance of the Notes to sell
or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to
Section 6.01, the Indenture Trustee need not take any action that it determines
(in its sole discretion) might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action,
unless the Trustee has received satisfactory indemnity from the Credit Enhancer
or a Noteholder.
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, the
Credit Enhancer (so long as no Credit Enhancer Default exists) or the
Noteholders of not less than a majority of the aggregate Note Balance of the
Notes, with the consent of the Credit Enhancer, 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 that cannot be modified or amended without the
consent of the Noteholder of each Note. In the case of any such waiver, the
Issuer, the Indenture Trustee and the Noteholders shall be restored to their
respective former positions and rights hereunder; but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereto.
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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 Noteholder by such Noteholder's acceptance of the related Note shall be
deemed to have agreed, that any court may in its discretion require, in any
Proceeding for the enforcement of any right or remedy under this Indenture, or
in any Proceeding against the Indenture Trustee for any action taken, suffered
or omitted by it as Indenture Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such Proceeding, 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
Proceeding instituted by the Indenture Trustee, (b) any Proceeding instituted by
any Noteholder, or group of Noteholders, in each case holding in the aggregate
more than 10% of the aggregate Note Balance of the Notes or (c) any Proceeding
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 Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it 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 is expressly subject to the
provisions of Section 5.05 and this Section 5.15. The power to effect any such
Sale shall not be exhausted by any one or more Sales as to any portion of the
Trust Estate remaining unsold, but shall continue unimpaired until the entire
Trust Estate shall have been sold or all amounts payable on the Notes and under
this Indenture and under the Insurance Agreement shall have been paid. The
Indenture Trustee may from time to time postpone any public Sale by public
announcement made at the time and place of such Sale. The Indenture Trustee
hereby expressly waives its right to any amount fixed by law as compensation for
any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the Trust
Estate, or any portion thereof, unless:
(i) the Noteholders of all Notes and the Credit Enhancer direct the
Indenture Trustee to make, such Sale,
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(ii) the proceeds of such Sale would be not less than the entire amount
that would be payable to the Noteholders under the Notes, the Certificateholders
under the Certificates and the Credit Enhancer in respect of amounts drawn under
the Policy and any other amounts due the Credit Enhancer under the Insurance
Agreement, in full payment thereof in accordance with Section 5.02, on the
Payment Date next succeeding the date of such Sale, or
(iii) the Indenture Trustee determines, in its sole discretion, that the
conditions for retention of the Trust Estate set forth in Section 5.05 cannot be
satisfied (in making any such determination, the Indenture Trustee may rely and
shall be protected in relying in good faith upon an opinion of an Independent
investment banking firm obtained and delivered as provided in Section 5.05), and
the Credit Enhancer consents to such Sale (which consent shall not be
unreasonably withheld), and the Noteholders of Notes representing at least 66
2/3% of the aggregate Note Balance of the Notes consent to such Sale.
The purchase by the Indenture Trustee of all or any portion of the Trust Estate
at a private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
(c) Unless the Noteholders and the Credit Enhancer shall 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 (ii) 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, then the Indenture Trustee shall bid an amount
at least $1.00 more than the highest other bid, which bid shall be subject to
the provisions of Section 5.15(d)(ii).
(d) In connection with a Sale of all or any portion of the Trust Estate:
(i) any Noteholder may bid for and, with the consent of the Credit
Enhancer, purchase the property offered for sale, and upon compliance with
the terms of sale may hold, retain and possess and dispose of such
property, without further accountability, and may, in paying the purchase
money therefor, deliver any Notes or claims for interest thereon in lieu of
cash up to the amount which shall, upon distribution of the net proceeds of
such sale, be payable thereon, and such Notes, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Noteholders thereof after being appropriately stamped to
show such partial payment;
(ii) the Indenture Trustee may bid for and acquire the property
offered for Sale in connection with any Sale thereof and, subject to any
requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust Estate
in a private sale. In lieu of paying cash therefor, the Indenture Trustee
may make settlement for the purchase price by crediting the gross Sale
price against the sum of (A) the amount that would be distributable to the
Noteholders and the Certificateholders and amounts owing to the Credit
Enhancer as a result of such Sale in accordance with Section 5.04(b) on the
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Payment Date next succeeding the date of such Sale and (B) the expenses of
the Sale and of any Proceedings in connection therewith that are
reimbursable to it, without being required to produce the Notes in order to
complete any such Sale or in order for the net Sale price to be credited
against such Notes, and any property so acquired by the Indenture Trustee
shall be held and dealt with by it in accordance with the provisions of
this Indenture;
(iii) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of the
Trust Estate in connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Estate in connection with a Sale thereof, and to
take all action necessary to effect such Sale; and
(v) no purchaser or transferee at such a Sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
Section 5.16 ACTION ON NOTES. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer 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 Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.04(b).
Section 5.17 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a written request from the Credit Enhancer or
the Indenture Trustee (with the written consent of the Credit Enhancer),
the Issuer, in its capacity as owner of the Home Loans, shall, with the
written consent of the Credit Enhancer, take all such lawful action as the
Indenture Trustee may request to cause the Issuer to compel or secure the
performance and observance by the Seller and the Servicer, as applicable,
of each of their obligations to the Issuer under or in connection with the
Purchase Agreement and the Servicing Agreement, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Purchase Agreement and the Servicing
Agreement to the extent and in the manner directed by the Indenture
Trustee, as pledgee of the Home Loans, including the transmission of
notices of default on the part of the Seller or the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel
or secure performance by the Seller or the Servicer of each of their
obligations under the Purchase Agreement and the Servicing Agreement.
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(b) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee, as pledgee of the Home Loans, subject to the rights of
the Credit Enhancer under the Servicing Agreement, may, and at the
direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Noteholders of 66 2/3% of the
aggregate Note Balance of the Notes, shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Seller or the
Servicer under or in connection with the Purchase Agreement and the
Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by the Seller or the Servicer,
as the case may be, of each of their obligations to the Issuer thereunder
and to give any consent, request, notice, direction, approval, extension or
waiver under the Purchase Agreement and the Servicing Agreement, as the
case may be, and any right of the Issuer to take such action shall not be
suspended. In connection therewith, as determined by the Indenture Trustee,
the Issuer shall take all actions necessary to effect the transfer of the
Home Loans to the Indenture Trustee.
ARTICLE VI
The Indenture Trustee
Section 6.01 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Indenture Trustee;
and
(ii) in the absence of bad faith on its part, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates, reports or opinions furnished to
the Indenture Trustee and conforming to the requirements of this Indenture;
provided, however, that the Indenture Trustee shall examine the certificates,
reports and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (a) of this
Section 6.01;
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(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11 or any direction from the
Credit Enhancer that the Credit Enhancer is entitled to give under any of
the Basic Documents.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee 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 adequate indemnity 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 and to the provisions of TIA.
(h) With respect to each Payment Date, on the Business Day following the
related Determination Date, the Indenture Trustee shall forward or cause to be
forwarded by mail, or other mutually agreed-upon method, to the Credit Enhancer
and the Servicer, a statement setting forth, to the extent applicable, during
the Pre-Funding Period, the Pre-Funded Amount as of such Payment Date and any
transfers of funds in connection therewith.
(i) The Indenture Trustee hereby accepts appointment as Certificate Paying
Agent under the Trust Agreement and agrees to be bound by the provisions of the
Trust Agreement relating to the Certificate Paying Agent. The Indenture Trustee
hereby agrees to be bound by the provisions of Article IX of the Trust
Agreement.
(j) The Indenture Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any Event of Default (except for an Event of
Default specified in clause (a) of the definition thereof) unless a Responsible
Officer of the Indenture Trustee shall have received written notice or have
actual knowledge thereof. In the absence of receipt of such notice or such
knowledge, the Indenture Trustee may conclusively assume that there is no
default or Event of Default.
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(k) The Indenture Trustee shall have no duty to see to any recording or
filing of any financing statement or continuation statement evidencing a
security interest or to see to the maintenance of any such recording or filing
or to any rerecording or refiling of any thereof.
Section 6.02 RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Officer's Certificate,
opinion of counsel, certificate of auditors, or any other certificate,
statement, instrument, report, notice, consent or other document believed by it
to be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in any such
document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on any such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture 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 advice or opinion of such counsel.
(f) The Indenture Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement, unless it shall be proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts.
(g) Prior to the occurrence of an Event of Default hereunder, and after the
curing or waiver of all Events of Default that may have occurred, the Indenture
Trustee shall not 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 the Credit Enhancer or Noteholders
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representing a majority of the aggregate Note Balance; provided, however, that
if the payment within a reasonable time to the Indenture Trustee 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, not assured to the
Indenture Trustee by the security afforded to it by the terms of this Indenture,
the Indenture Trustee may require indemnity satisfactory to the Indenture
Trustee against such cost, expense or liability as a condition to taking any
such action.
(h) The Indenture Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Noteholders or the Credit Enhancer, pursuant to the
provisions of this Agreement, unless the Noteholders or the Credit Enhancer
shall have offered to the Indenture Trustee 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 (which has not
been cured or waived), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs.
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 Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee. Any Note Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Indenture Trustee
must comply with Sections 6.11 and 6.12.
Section 6.04 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee shall
not be (i) responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, (ii) accountable for the Issuer's use
of the proceeds from the Notes or (iii) responsible for any statement of the
Issuer in this Indenture or in any document issued in connection with the sale
of the Notes or in the Notes, other than the Indenture Trustee's certificate of
authentication thereon.
Section 6.05 NOTICE OF EVENT OF DEFAULT. If an Event of Default shall occur
and be continuing, and if such Event of Default is known to a Responsible
Officer of the Indenture Trustee, then the Indenture Trustee shall give notice
thereof to the Credit Enhancer. The Indenture Trustee shall mail to each
Noteholder notice of such Event of Default within 90 days after it occurs.
Except in the case of an Event of Default with respect to the payment of
principal of or interest on any Note, the Indenture Trustee may withhold such
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of the Noteholders.
Section 6.06 REPORTS BY INDENTURE TRUSTEE TO NOTEHOLDERS. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such Noteholder to prepare its federal and state income tax returns. In
addition, upon Issuer Request, the Indenture Trustee shall promptly furnish such
38
information reasonably requested by the Issuer that is reasonably available to
the Indenture Trustee to enable the Issuer to perform its federal and state
income tax reporting obligations.
Section 6.07 COMPENSATION AND INDEMNITY. The Indenture Trustee shall be
compensated and indemnified by the Servicer in accordance with Section 6.06 of
the Servicing Agreement. All amounts owing the Indenture Trustee hereunder in
excess of such amount, as well as any amount owed to the Indenture Trustee in
accordance with Section 6.06 of the Servicing Agreement, to the extent the
Servicer has failed to pay such amount, shall be paid solely as provided in
Section 3.05 hereof (subject to the priorities set forth therein). The Indenture
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Indenture Trustee
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall indemnify the Indenture Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Indenture Trustee shall notify the Issuer promptly of any claim
for which it may seek indemnity. Failure by the Indenture Trustee to so notify
the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer
shall defend any such claim, and the Indenture Trustee may have separate counsel
and the Issuer shall pay the fees and expenses of such counsel. The Issuer is
not obligated to reimburse any expense or indemnify against any loss, liability
or expense incurred by the Indenture Trustee through the Indenture Trustee's own
willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section 6.07 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of an Event of Default specified in
clause (c) or (d) of the definition thereof with respect to the Issuer, such
expenses are intended to constitute expenses of administration under Title 11 of
the United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section 6.08 REPLACEMENT OF INDENTURE TRUSTEE. No resignation or removal of
the Indenture Trustee and no appointment of a successor Indenture Trustee shall
become effective until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section 6.08. The Indenture Trustee may resign at any
time by so notifying the Issuer and the Credit Enhancer. The Credit Enhancer or
the Noteholders of a majority of the aggregate Note Balance of the Notes may
remove the Indenture Trustee by so notifying the Indenture Trustee and the
Credit Enhancer (if given by such Noteholders) and may appoint a successor
Indenture Trustee. Unless a Servicer Default has occurred and is continuing, the
appointment of any successor Indenture Trustee shall be subject to the prior
written approval of the Servicer. The Issuer shall remove the Indenture Trustee
if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
39
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of fulfilling its
duties under the Basic Documents.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of the Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee with the consent of
the Credit Enhancer, which consent shall not be unreasonably withheld. In
addition, the Indenture Trustee shall resign to avoid being directly or
indirectly controlled by the Issuer.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to the Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, then the retiring
Indenture Trustee, the Issuer or the Noteholders of a majority of aggregate Note
Balance of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Section 6.09 SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, then the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide the Rating
Agencies with written notice of any such transaction occurring after the Closing
Date.
If at the time of any such succession by merger, conversion or
consolidation, any of the Notes shall have been authenticated but not delivered,
then any such successor to the Indenture Trustee may adopt the certificate of
40
authentication of any predecessor trustee, and deliver such Notes so
authenticated. If at such time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases, such certificates
shall have the full force that it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE
TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at such 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 Issuer, 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 thereof, 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 6.11, and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the 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 Agreement and
41
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11 ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee shall at
all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it or its parent
shall have a long-term debt rating of A or better by Xxxxx'x. The Indenture
Trustee shall comply with TIA ss. 310(b), including the optional provision
permitted by the second sentence of TIA ss. 310(b)(9); provided, however, that
there shall be excluded from the operation of TIA ss. 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
Section 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee that has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 6.13 REPRESENTATIONS AND WARRANTIES. The Indenture Trustee hereby
represents and warrants that:
(a) The Indenture Trustee is duly organized, validly existing and in good
standing under the laws of the State of New York with power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is currently conducted.
(b) 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.
(c) 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
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lapse of time) a default under, the articles of organization 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.
(d) To the Indenture Trustee's best 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.
(e) The Indenture Trustee does not have notice of any adverse claim (as
such terms are used in Section 8-302 of the UCC in effect in the State of
Delaware) with respect to the Home Loans.
Section 6.14 DIRECTIONS TO INDENTURE TRUSTEE. The Indenture Trustee is
hereby directed:
(a) to accept the pledge of the Home Loans and hold the assets of the Trust
in trust for the Noteholders and the Credit Enhancer;
(b) to authenticate and deliver the Notes substantially in the form
prescribed by Exhibit A in accordance with the terms of this Indenture; and
(c) to take all other actions as shall be required to be taken by the terms
of this Indenture.
Section 6.15 INDENTURE TRUSTEE MAY OWN SECURITIES. The Indenture Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Indenture Trustee.
ARTICLE VII
Noteholders' Lists and Reports
Section 7.01 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. The Issuer shall furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Noteholders as of such Record Date, and (b) at such other times as the
Indenture Trustee and the Credit Enhancer may request in writing, within 30 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that for so long as the Indenture Trustee is the
Note Registrar, no such list need be furnished.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
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(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names and addresses of the Noteholders received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.01 upon receipt of a new list
so furnished.
(b) Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA ss. 312(c).
Section 7.03 REPORTS BY ISSUER.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Issuer may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA ss. 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by
rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04 REPORTS BY INDENTURE TRUSTEE. If required by TIA ss. 313(a),
within 60 days after each January 1, beginning with January 1, 2001, the
Indenture Trustee shall make available to each Noteholder as required by TIA ss.
313(c) and to the Credit Enhancer a brief report dated as of such date that
complies with TIA ss. 313(a). The Indenture Trustee also shall comply with TIA
ss. 313(b).
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A copy of each report at the time of its distribution to Noteholders shall
be filed by the Indenture Trustee with the Commission, if required, and each
stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02 TRUST ACCOUNTS.
(a) On or prior to the Closing Date, the Issuer shall cause the Indenture
Trustee to establish and maintain, in the name of the Indenture Trustee, for the
benefit of the Noteholders, the Certificate Paying Agent, on behalf of the
Certificateholders, and the Credit Enhancer, the Note Payment Account as
provided in Section 3.01 of this Indenture.
(b) All monies deposited from time to time in the Note Payment Account
pursuant to the Servicing Agreement and all deposits therein pursuant to this
Indenture are for the benefit of the Noteholders, the Credit Enhancer and the
Certificate Paying Agent, on behalf of the Certificateholders, and all
investments made with such monies, including all income or other gain from such
investments, are for the benefit of the Servicer as provided in Section 5.01 of
the Servicing Agreement.
On each Payment Date, the Indenture Trustee shall distribute all amounts
on deposit in the Note Payment Account to the Noteholders in respect of the
Notes and, in its capacity as Certificate Paying Agent, to the
Certificateholders from the Distribution Account in the order of priority set
forth in Section 3.05 (except as otherwise provided in Section 5.04(b)) and in
accordance with the Servicing Certificate.
The Indenture Trustee shall invest any funds in the Note Payment Account
in Permitted Investments selected in writing by the Servicer maturing no later
than the Business Day preceding the next succeeding Payment Date (except that
(i) any investment in the institution with which the Note Payment Account is
45
maintained may mature on such Payment Date and (ii) any other investment may
mature on such Payment Date if the Servicer shall advance funds on such Payment
Date to the Note Payment Account in the amount payable on such investment on
such Payment Date, pending receipt thereof to the extent necessary to make
distributions on the Notes) and shall not be sold or disposed of prior to the
maturity. The Indenture Trustee shall have no liability whatsoever for
investment losses on Permitted Investments, if such investments are made in
accordance with the provisions of this Indenture.
Section 8.03 OFFICER'S CERTIFICATE. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.05(a), 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 8.04 TERMINATION UPON DISTRIBUTION TO NOTEHOLDERS. This Indenture
and the respective obligations and responsibilities of the Issuer and the
Indenture Trustee created hereby shall terminate upon the distribution to the
Noteholders, the Certificate Paying Agent on behalf of the Certificateholders
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. James's, living on the date hereof.
Section 8.05 RELEASE OF TRUST ESTATE.
(a) Subject to the payment of its fees, expenses and indemnification, the
Indenture Trustee may, and when required by the provisions of this Indenture or
the Servicing Agreement, shall, execute instruments to release property from the
lien of this Indenture, or convey the Indenture Trustee's interest in the same,
in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture. No Person 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) there are no Notes
Outstanding, (ii) all sums due the Indenture Trustee pursuant to this Indenture
have been paid and (iii) all sums due the Credit Enhancer 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 an Issuer Request
accompanied by an Officers' Certificate and a letter from the Credit Enhancer
stating that the Credit Enhancer has no objection to such request from the
Issuer.
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(d) The Indenture Trustee shall, at the request of the Issuer or the Depositor,
surrender the Policy to the Credit Enhancer for cancellation, upon final payment
of principal of and interest on the Notes.
Section 8.06 SURRENDER OF NOTES UPON FINAL PAYMENT. By acceptance of any
Note, the Noteholder thereof agrees to surrender such Note to the Indenture
Trustee promptly, prior to such Noteholder's receipt of the final payment
thereon.
ARTICLE IX
Supplemental Indentures
Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Noteholders of any Notes but with prior
notice to the Rating Agencies and the Credit Enhancer, the Issuer and the
Indenture Trustee, when authorized by an Issuer Request, at any time and from
time to time, may enter into one or more indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of the execution thereof), in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject to the lien
of this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption
by any such successor of the covenants of the Issuer herein and in the
Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Noteholders or the Credit Enhancer, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with
any other provision herein or in any supplemental indenture;
(vi) to make any other provisions with respect to matters or questions
arising under this Indenture or in any supplemental indenture;
provided, that such action shall not materially and adversely affect
the interests of the Noteholders or the Credit Enhancer (as evidenced
by an Opinion of Counsel);
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(vii) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add
to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Article VI; or
(viii)to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of
this Indenture under TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions
as may be expressly required by TIA;
provided, however, that no such supplemental indenture shall be entered into
unless the Indenture Trustee shall have received an Opinion of Counsel to the
effect that the execution of such supplemental indenture will not give rise to
any material adverse tax consequence to the Noteholders.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Request, may, without the consent of any Noteholder but with prior notice to the
Rating Agencies and the Credit Enhancer, 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 Noteholders under this Indenture;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, (i) adversely affect in any material respect the interests of any
Noteholder or the Credit Enhancer or (ii) cause the Issuer to be subject to an
entity level tax.
Section 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. The
Issuer and the Indenture Trustee, when authorized by an Issuer Request, may,
with prior notice to the Rating Agencies and with the consent of the Credit
Enhancer and the Noteholders of not less than a majority of the Note Balances of
each Class of Notes affected thereby, by Act (as defined in Section 10.03
hereof) of such Noteholders delivered to the Issuer 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
Noteholders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Noteholder of each Note affected
thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof or the Note Rate
thereon, change the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Trust Estate to payment of
principal of or interest on the Notes, or change any place of payment where, or
the coin or currency in which, any Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of the provisions of this
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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;
(b) reduce the percentage of the Note Balances of any Class of the Notes,
the consent of the Noteholders of which is required for any such supplemental
indenture, or the consent of the Noteholders 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;
(c) 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 "Noteholder";
(d) reduce the percentage of the aggregate Note Balance of the Notes
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.04;
(e) 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 other Basic Documents cannot be modified or waived without
the consent of the Noteholder of each Note affected thereby;
(f) 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
(g) 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 Noteholder
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,
cause the Issuer to be subject to an entity level tax.
The Indenture Trustee may in its discretion determine whether or not any
Notes would be affected by any supplemental indenture and any such determination
shall be conclusive upon the Noteholders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.
It shall not be necessary for any Act (as defined in Section 10.03 hereof)
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 Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
49
shall mail to the Noteholders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and,
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, 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 Issuer and the Noteholders 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 TIA as in effect at the time of such
amendment or supplement so long as this Indenture shall then be qualified under
TIA.
Section 9.06 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee,
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
Miscellaneous
Section 10.01 COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
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(a) Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee and to the Credit Enhancer (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:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with; and
(v) if the signer 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 Issuer 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 of
such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer 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 Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the
fair value to the Issuer 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
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Issuer, as set forth in the certificates delivered pursuant to
clause (i) above and this clause (ii), is 10% or more of the
aggregate Note Balance of the Notes, but such a certificate need
not be furnished with respect to any securities so deposited, if
the fair value thereof to the Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than one
percent of the aggregate Note Balance of the Notes.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall 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 of 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 Issuer 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 Issuer 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, other than property as contemplated by clause
(v) below 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 aggregate Note Balance 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 aggregate Note
Balance of the Notes.
(v) Notwithstanding any provision of this Indenture, the
Issuer may, without compliance with the requirements of the other
provisions of this Section 10.01, (A) collect upon, sell or
otherwise dispose of the Home Loans as and to the extent
permitted or required by the Basic Documents or (B) make cash
payments out of the Note Payment Account as and to the extent
permitted or required by the Basic Documents, so long as the
Issuer shall deliver to the Indenture Trustee every six months,
commencing December 31, 1999, an Officer's Certificate of the
Issuer stating that all the dispositions of Collateral described
in clauses (A) or (B) above that occurred during the preceding
six calendar months (or such longer period, in the case of the
first such Officer's Certificate) were in the ordinary course of
the Issuer's business and that the proceeds thereof were applied
in accordance with the Basic Documents.
Section 10.02 FORM OF DOCUMENTS DELIVERED TO INDENTURE
TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any 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
Issuer, stating that the information with respect to such factual matters is in
the possession of the Seller or the Issuer, 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 Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in 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 Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section 10.03.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
53
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Noteholder of any Note shall bind the Noteholder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 10.04 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER, CREDIT ENHANCER
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:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office with a
copy to The Bank of New York, 000 Xxxxxxx Xxxxxx, 00-X, Xxx Xxxx, Xxx Xxxx
00000, Attention: GMACM 2000-HLTV1. The Indenture Trustee shall promptly
transmit any notice received by it from the Noteholders to the Issuer,
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed first-class,
postage prepaid to the Issuer addressed to: GMACM Home Loan Trust 2000-HLTV1, in
care of the Owner Trustee, or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the Indenture
Trustee, or
(c) the Credit Enhancer by the Issuer, the Indenture Trustee or by any
Noteholders shall be sufficient for every purpose hereunder to in writing and
mailed, first-class postage pre-paid, or personally delivered or telecopied to:
Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Structured Finance -Mortgage Backed Securities (GMACM
Home Loan Trust 2000-HLTV1), telecopier number (000) 000-0000. The Credit
Enhancer shall promptly transmit any notice received by it from the Issuer, the
Indenture Trustee or the Noteholders to the Issuer or Indenture Trustee, as the
case may be.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in
the case of Standard & Poor's, at the following address: Standard & Poor's, 00
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Surveillance Department; or, as to each of the foregoing Persons, at such other
address as shall be designated by written notice to the other foregoing Persons.
Section 10.05 NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture provides
for notice to Noteholders of any event, such notice shall be sufficiently given
54
(unless otherwise herein expressly provided) if 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 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Noteholder providing for a method of payment,
or notice by the Indenture Trustee to such Noteholder, that is different from
the methods provided for in this Indenture for such payments or notices. The
Issuer shall furnish to the Indenture Trustee a copy of each such agreement and
the Indenture Trustee shall cause payments to be made and notices to be given in
accordance with such agreements.
Section 10.07 CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of TIA, such required
provision shall control.
The provisions of TIA xx.xx. 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 10.08 EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
55
Section 10.09 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture and the Notes by the Issuer 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 10.10 SEVERABILITY. In case any provision in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
Section 10.11 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, the Credit Enhancer,
and any other party secured hereunder, and any other Person with an ownership
interest in any part of the Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Indenture. The Credit Enhancer shall be a
third party beneficiary of this Agreement.
Section 10.12 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 10.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.14 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 10.15 RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which counsel shall be 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 10.16 ISSUER OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
56
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their respective individual capacities), and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity. For
all purposes of this Indenture, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
Section 10.17 NO PETITION. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by its acceptance of a Note, hereby covenant and
agree that they will not at any time institute against the Depositor or the
Issuer, or join in any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the other Basic Documents.
Section 10.18 INSPECTION. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
57
IN WITNESS WHEREOF, the Issuer 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.
GMACM HOME LOAN TRUST 2000-HLTV1, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /S/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Financial Services Officer
THE BANK OF NEW YORK, as Indenture Trustee
By: /S/ XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
hereby accepts the appointment as Paying
Agent pursuant to Section 3.03 hereof
and as Note Registrar pursuant to Section
4.02 hereof.
By: /S/ XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Vice President
Signatures and Seals
58
STATE OF Delaware )
) ss.:
COUNTY OF _____________ )
On this 27th day of March 2000, before me personally appeared Xxxx X.
Xxxxxxxx, to me known, who being by me duly sworn, did depose and say, that
he/she resides at _____________, that he/she is the Financial Services Officer
of Wilmington Trust Company, the Owner Trustee, one of the corporations
described in and which executed the above instrument; that he/she knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like order.
/S/ XXX XXXXX XXXXXX
Notary Public
Acknowledgements
59
STATE OF New York )
) ss.:
COUNTY OF Bronx )
On this 28th day of March, 2000, before me personally appeared Xxxx
Xxxxxx, to me known, who being by me duly sworn, did depose and say, that he/she
resides at 000 Xxxxxxx Xxxxxx; that he/she is the Vice President of The Bank of
New York, as Indenture Trustee, one of the corporations described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he/she
signed his/her name thereto by like order.
/S/ XXXXX XXXX
______________
Notary Public
NOTORIAL SEAL
60
EXHIBIT A
FORM OF NOTES
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR GMAC
MORTGAGE GROUP, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE INDENTURE OR THE OTHER BASIC DOCUMENTS.
THE HOLDER OF THIS NOTE IS DEEMED TO HAVE REPRESENTED THAT THE ACQUISITION OF
THIS NOTE BY THE HOLDER DOES NOT CONSTITUTE OR GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, FOR WHICH NO
STATUTORY, REGULATORY OR ADMINISTRATIVE EXEMPTION IS AVAILABLE.
GMACM HOME LOAN TRUST 2000-HLTV1
GMACM Home Loan-Backed Term Note, Class A-1
Registered Initial Note Balance:
$64,570,000
No. R-1 Note Rate: Variable
CUSIP NO. 36185H AA1
GMACM Home Loan Trust 2000-HLTV1, a business trust duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of sixty four million five hundred seventy
thousand dollars ($64,570,000), payable on each Payment Date in an amount equal
to the pro rata portion allocable hereto (based on the Initial Note Balance
1
specified above and the Initial Note Balance of all Class A-1 Notes) of the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal of the Class A-1 Notes (the "Notes") pursuant to Section 3.05 of the
indenture dated as of March 30, 2000 (the "Indenture"), between the Issuer and
The Bank of New York, as indenture trustee (the "Indenture Trustee"); PROVIDED,
HOWEVER, that the entire unpaid principal amount of this Note shall be due and
payable on the Payment Date in June 2025, to the extent not previously paid on a
prior Payment Date. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in Appendix A to the Indenture.
Interest on the Notes will be paid monthly on each Payment Date at the
Note Rate for the related Interest Period. The Note Rate for each Interest
Period will be a floating rate equal to the lesser of (i) LIBOR plus 0.20% per
annum and (ii) 10.00% per annum. LIBOR for each applicable Interest Period will
be determined on the second LIBOR Business Day immediately preceding (i) the
Closing Date in the case of the first Interest Period and (ii) the first day of
each succeeding Interest Period by the Indenture Trustee as set forth in the
Indenture. All determinations of LIBOR by the Indenture Trustee shall, in the
absence of manifest error, be conclusive for all purposes, and each holder of
this Note, by accepting this Note, agrees to be bound by such determination.
Interest on this Note will accrue for each Payment Date from the most recent
Payment Date on which interest has been paid (in the case of the first Payment
Date, from the Closing Date) to but excluding such Payment Date. Interest will
be computed on the basis of the actual number of days in each Interest Period
and a year assumed to consist of 360 days. Principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
Principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its GMACM Home Loan-Backed Term Notes, Series 2000-HLTV1 (the
"Series 2000-HLTV1 Notes"), all issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders of the Series 2000-HLTV1 Notes. The Series
2000-HLTV1 Notes are subject to all terms of the Indenture.
The Series 2000-HLTV1 Notes (collectively, the "Notes") are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
This Note is entitled to the benefits of an irrevocable and unconditional
financial guaranty insurance policy issued by Ambac Assurance Corporation.
2
Principal of and interest on this Note will be payable on each Payment
Date, commencing on April 18, 2000, as described in the Indenture. "Payment
Date" means the eighteenth day of each month, or, if any such date is not a
Business Day, then the next succeeding Business Day.
The entire unpaid principal amount of this Note shall be due and payable
in full on the Payment Date in June 2025 pursuant to the Indenture, to the
extent not previously paid on a prior Payment Date. Notwithstanding the
foregoing, if an Event of Default shall have occurred and be continuing, then
the Indenture Trustee, the Credit Enhancer or the Noteholders of Notes
representing not less than a majority of the aggregate Note Balance of the
Notes, with the consent of the Credit Enhancer, may declare the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Notes shall be made pro rata to the
Noteholders of Notes entitled thereto.
Any installment of interest or principal, if any, payable on any Note that
is punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the related Noteholder on the preceding Record Date, by
wire transfer to an account specified in writing by such Noteholder reasonably
satisfactory to the Indenture Trustee as of the preceding Record Date or, if no
such instructions have been delivered to the Indenture Trustee, by check or
money order to such Noteholder mailed to such Noteholder's address as it appears
in the Note Register, the amount required to be distributed to such Noteholder
on such Payment Date pursuant to such Noteholder's Notes; PROVIDED, HOWEVER,
that the Indenture Trustee shall not pay to such Noteholder any amount required
to be withheld from a payment to such Noteholder by the Code. Any reduction in
the principal amount of this Note (or any one or more predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Noteholders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered Noteholder hereof as of
the Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the address
specified in such notice of final payment.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the Corporate Trust
Office of the Indenture Trustee, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act, and thereupon one or more new Notes in
3
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the Note
Registrar 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 this Note.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a
Note, or, in the case of a Beneficial Owner of a Note, a beneficial interest in
a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee,
the Seller, the Servicer, the Depositor or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a Note
or, in the case of a Beneficial Owner of a Note, a beneficial interest in a
Note, covenants and agrees by accepting the benefits of the Indenture that such
Noteholder or Beneficial Owner will not at any time institute against the
Depositor, the Seller, the Servicer, GMAC Mortgage Group, Inc. or the Issuer, or
join in any institution against the Depositor, the Seller, the Servicer, GMAC
Mortgage Group, Inc. or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer.
Each Noteholder of a Note, by its acceptance of a Note (and each Beneficial
Owner of a Note by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in the name of which this Note is registered (as of
the day of determination or as of such other date as may be specified in the
Indenture) as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
4
Issuer and the Indenture Trustee and the rights of the Noteholders of the Series
2000-HLTV1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of the Credit Enhancer and the Noteholders of Notes
representing a majority of the aggregate Note Balance of the Notes then
Outstanding and with prior notice to the Rating Agencies. The Indenture also
contains provisions permitting the Noteholders of Notes representing specified
percentages of the Note Balances of the Series 2000-HLTV1 Notes, on behalf of
the Noteholders of all Series 2000-HLTV1 Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
Noteholder of this Note (or any one of more predecessor Notes) shall be
conclusive and binding upon such Noteholder and upon all future Noteholders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Issuer and the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders of the Series 2000-HLTV1 Notes
issued thereunder but with prior notice to the Rating Agencies and the Credit
Enhancer.
The term "Issuer" as used in this Note includes any successor or the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflicts of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, The Bank of New York in its individual capacity, any owner
of a beneficial interest in the Issuer, or any of their 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 this Note or the performance of, or
the failure to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note, by its acceptance
hereof, agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, such Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom;
5
PROVIDED, HOWEVER, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in
its individual capacity, has caused this Note to be duly executed.
GMACM HOME LOAN TRUST 2000-HLTV1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: March 30, 2000
By:____________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
By:___________________________
Name:
Title:
Dated: March 30, 2000
7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
___________________________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: */
Signature Guaranteed:
*/
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular , without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program: as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
8
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR GMAC
MORTGAGE GROUP, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE INDENTURE OR THE OTHER BASIC DOCUMENTS.
THE HOLDER OF THIS NOTE IS DEEMED TO HAVE REPRESENTED THAT THE ACQUISITION OF
THIS NOTE BY THE HOLDER DOES NOT CONSTITUTE OR GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, FOR WHICH NO
STATUTORY, REGULATORY OR ADMINISTRATIVE EXEMPTION IS AVAILABLE.
GMACM HOME LOAN TRUST 2000-HLTV1
GMACM Home Loan-Backed Term Note, Class A-2
Registered Initial Note Balance:
$18,887,000
No. R-1 Note Rate: 7.84%
CUSIP NO. 36185H AB9
GMACM Home Loan Trust 2000-HLTV1, a business trust duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of eighteen million eight hundred
eighty-seven thousand dollars ($18,887,000), payable on each Payment Date in an
amount equal to the pro rata portion allocable hereto (based on the Initial Note
Balance specified above and the Initial Note Balance of all Class A-2 Notes) of
the aggregate amount, if any, payable from the Note Payment Account in respect
of principal of the Class A-2 Notes (the "Notes") pursuant to Section 3.05 of
the indenture dated as of March 30, 2000 (the "Indenture"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee");
1
PROVIDED, HOWEVER, that the entire unpaid principal amount of this Note shall be
due and payable on the Payment Date in June 2025, to the extent not previously
paid on a prior Payment Date. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in Appendix A to the
Indenture.
Interest on the Notes will be paid monthly on each Payment Date at the
Note Rate for the related Interest Period. The Note Rate for this Note will be a
fixed rate equal to 7.84% per annum. Interest on this Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been paid
(in the case of the first Payment Date, from the Closing Date) to but excluding
such Payment Date. Interest will be computed on the basis of the actual number
of days in each Interest Period and a year assumed to consist of 360 days.
Principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
Principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its GMACM Home Loan-Backed Term Notes, Series 2000-HLTV1 (the
"Series 2000-HLTV1 Notes"), all issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders of the Series 2000-HLTV1 Notes. The Series
2000-HLTV1 Notes are subject to all terms of the Indenture.
The Series 2000-HLTV1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
This Note is entitled to the benefits of an irrevocable and unconditional
financial guaranty insurance policy issued by Ambac Assurance Corporation.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on April 18, 2000, as described in the Indenture. "Payment
Date" means the eighteenth day of each month, or, if any such date is not a
Business Day, then the next succeeding Business Day.
The entire unpaid principal amount of this Note shall be due and payable
in full on the Payment Date in June 2025 pursuant to the Indenture, to the
extent not previously paid on a prior Payment Date. Notwithstanding the
foregoing, if an Event of Default shall have occurred and be continuing, then
the Indenture Trustee, the Credit Enhancer or the Noteholders of Notes
representing not less than a majority of the aggregate Note Balance of the
Notes, with the
2
consent of the Credit Enhancer, may declare the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Notes shall be made pro rata to the Noteholders of Notes
entitled thereto.
Any installment of interest or principal, if any, payable on any Note that
is punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the related Noteholder on the preceding Record Date, by
wire transfer to an account specified in writing by such Noteholder reasonably
satisfactory to the Indenture Trustee as of the preceding Record Date or, if no
such instructions have been delivered to the Indenture Trustee, by check or
money order to such Noteholder mailed to such Noteholder's address as it appears
in the Note Register, the amount required to be distributed to such Noteholder
on such Payment Date pursuant to such Noteholder's Notes; PROVIDED, HOWEVER,
that the Indenture Trustee shall not pay to such Noteholder any amount required
to be withheld from a payment to such Noteholder by the Code. Any reduction in
the principal amount of this Note (or any one or more predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Noteholders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered Noteholder hereof as of
the Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the address
specified in such notice of final payment.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the Corporate Trust
Office of the Indenture Trustee, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act, and thereupon one or more new Notes in
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the Note
Registrar 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 this Note.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a
Note, or, in the case of a Beneficial Owner of a Note, a beneficial interest in
a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee,
the Seller, the Servicer, the Depositor or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
3
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a Note
or, in the case of a Beneficial Owner of a Note, a beneficial interest in a
Note, covenants and agrees by accepting the benefits of the Indenture that such
Noteholder or Beneficial Owner will not at any time institute against the
Depositor, the Seller, the Servicer, GMAC Mortgage Group, Inc. or the Issuer, or
join in any institution against the Depositor, the Seller, the Servicer, GMAC
Mortgage Group, Inc. or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer.
Each Noteholder of a Note, by its acceptance of a Note (and each Beneficial
Owner of a Note by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in the name of which this Note is registered (as of
the day of determination or as of such other date as may be specified in the
Indenture) as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Indenture Trustee and the rights of the Noteholders of the Series
2000-HLTV1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of the Credit Enhancer and the Noteholders of Notes
representing a majority of the aggregate Note Balance of the Notes then
Outstanding and with prior notice to the Rating Agencies. The Indenture also
contains provisions permitting the Noteholders of Notes representing specified
percentages of the Note Balances of the Series 2000-HLTV1 Notes, on behalf of
the Noteholders of all Series 2000-HLTV1 Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
Noteholder of this Note (or any one of more predecessor Notes) shall be
conclusive and binding upon such Noteholder and upon all future Noteholders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Issuer and the
4
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders of the Series 2000-HLTV1 Notes
issued thereunder but with prior notice to the Rating Agencies and the Credit
Enhancer.
The term "Issuer" as used in this Note includes any successor or the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflicts of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, The Bank of New York in its individual capacity, any owner
of a beneficial interest in the Issuer, or any of their 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 this Note or the performance of, or
the failure to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note, by its acceptance
hereof, agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, such Noteholder 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 Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in
its individual capacity, has caused this Note to be duly executed.
GMACM HOME LOAN TRUST 2000-HLTV1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: March 30, 2000
By:________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
Dated: March 30, 2000
By:
Authorized Signatory
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
---------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
___________________________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: */
Signature Guaranteed:
*/
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular , without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program: as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR GMAC
MORTGAGE GROUP, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE INDENTURE OR THE OTHER BASIC DOCUMENTS.
THE HOLDER OF THIS NOTE IS DEEMED TO HAVE REPRESENTED THAT THE ACQUISITION OF
THIS NOTE BY THE HOLDER DOES NOT CONSTITUTE OR GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, FOR WHICH NO
STATUTORY, REGULATORY OR ADMINISTRATIVE EXEMPTION IS AVAILABLE.
GMACM HOME LOAN TRUST 2000-HLTV1
GMACM Home Loan-Backed Term Note, Class A-3
Registered Initial Note Balance:
$29,790,000
No. R-1 Note Rate: 8.17%
CUSIP NO. 36185H AC7
GMACM Home Loan Trust 2000-HLTV1, a business trust duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of twenty-nine million seven hundred
ninety thousand dollars ($29,790,000), payable on each Payment Date in an amount
equal to the pro rata portion allocable hereto (based on the Initial Note
Balance specified above and the Initial Note Balance of all Class A-3 Notes) of
the aggregate amount, if any, payable from the Note Payment Account in respect
of principal of the Class A-3 Notes (the "Notes") pursuant to Section 3.05 of
the indenture dated as of March 30, 2000 (the "Indenture"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee");
1
PROVIDED, HOWEVER, that the entire unpaid principal amount of this Note shall be
due and payable on the Payment Date in June 2025, to the extent not previously
paid on a prior Payment Date. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in Appendix A to the
Indenture.
Interest on the Notes will be paid monthly on each Payment Date at the
Note Rate for the related Interest Period. The Note Rate for this Note will be a
fixed rate equal to 8.17% per annum. Interest on this Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been paid
(in the case of the first Payment Date, from the Closing Date) to but excluding
such Payment Date. Interest will be computed on the basis of the actual number
of days in each Interest Period and a year assumed to consist of 360 days.
Principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
Principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its GMACM Home Loan-Backed Term Notes, Series 2000-HLTV1 (the
"Series 2000-HLTV1 Notes"), all issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders of the Series 2000-HLTV1 Notes. The Series
2000-HLTV1 Notes are subject to all terms of the Indenture.
The Series 2000-HLTV1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
This Note is entitled to the benefits of an irrevocable and unconditional
financial guaranty insurance policy issued by Ambac Assurance Corporation.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on April 18, 2000, as described in the Indenture. "Payment
Date" means the eighteenth day of each month, or, if any such date is not a
Business Day, then the next succeeding Business Day.
The entire unpaid principal amount of this Note shall be due and payable
in full on the Payment Date in June 2025 pursuant to the Indenture, to the
extent not previously paid on a prior Payment Date. Notwithstanding the
foregoing, if an Event of Default shall have occurred and be continuing, then
the Indenture Trustee, the Credit Enhancer or the Noteholders of Notes
representing not less than a majority of the aggregate Note Balance of the
2
Notes, with the consent of the Credit Enhancer, may declare the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Notes shall be made pro rata to the
Noteholders of Notes entitled thereto.
Any installment of interest or principal, if any, payable on any Note that
is punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the related Noteholder on the preceding Record Date, by
wire transfer to an account specified in writing by such Noteholder reasonably
satisfactory to the Indenture Trustee as of the preceding Record Date or, if no
such instructions have been delivered to the Indenture Trustee, by check or
money order to such Noteholder mailed to such Noteholder's address as it appears
in the Note Register, the amount required to be distributed to such Noteholder
on such Payment Date pursuant to such Noteholder's Notes; PROVIDED, HOWEVER,
that the Indenture Trustee shall not pay to such Noteholder any amount required
to be withheld from a payment to such Noteholder by the Code. Any reduction in
the principal amount of this Note (or any one or more predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Noteholders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered Noteholder hereof as of
the Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the address
specified in such notice of final payment.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the Corporate Trust
Office of the Indenture Trustee, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act, and thereupon one or more new Notes in
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the Note
Registrar 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 this Note.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a
Note, or, in the case of a Beneficial Owner of a Note, a beneficial interest in
a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee,
the Seller, the Servicer, the Depositor or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
3
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a Note
or, in the case of a Beneficial Owner of a Note, a beneficial interest in a
Note, covenants and agrees by accepting the benefits of the Indenture that such
Noteholder or Beneficial Owner will not at any time institute against the
Depositor, the Seller, the Servicer, GMAC Mortgage Group, Inc. or the Issuer, or
join in any institution against the Depositor, the Seller, the Servicer, GMAC
Mortgage Group, Inc. or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer.
Each Noteholder of a Note, by its acceptance of a Note (and each Beneficial
Owner of a Note by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in the name of which this Note is registered (as of
the day of determination or as of such other date as may be specified in the
Indenture) as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Indenture Trustee and the rights of the Noteholders of the Series
2000-HLTV1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of the Credit Enhancer and the Noteholders of Notes
representing a majority of the aggregate Note Balance of the Notes then
Outstanding and with prior notice to the Rating Agencies. The Indenture also
contains provisions permitting the Noteholders of Notes representing specified
percentages of the Note Balances of the Series 2000-HLTV1 Notes, on behalf of
the Noteholders of all Series 2000-HLTV1 Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
Noteholder of this Note (or any one of more predecessor Notes) shall be
conclusive and binding upon such Noteholder and upon all future Noteholders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Issuer and the
4
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders of the Series 2000-HLTV1 Notes
issued thereunder but with prior notice to the Rating Agencies and the Credit
Enhancer.
The term "Issuer" as used in this Note includes any successor or the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflicts of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, The Bank of New York in its individual capacity, any owner
of a beneficial interest in the Issuer, or any of their 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 this Note or the performance of, or
the failure to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note, by its acceptance
hereof, agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, such Noteholder 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 Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in
its individual capacity, has caused this Note to be duly executed.
GMACM HOME LOAN TRUST 2000-HLTV1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: March 30, 2000
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
Dated: March 30, 2000
By:___________________________________
Authorized Signatory
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
---------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
___________________________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: */
Signature Guaranteed:
*/
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular , without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program: as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
7
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR GMAC
MORTGAGE GROUP, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE INDENTURE OR THE OTHER BASIC DOCUMENTS.
THE HOLDER OF THIS NOTE IS DEEMED TO HAVE REPRESENTED THAT THE ACQUISITION OF
THIS NOTE BY THE HOLDER DOES NOT CONSTITUTE OR GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, FOR WHICH NO
STATUTORY, REGULATORY OR ADMINISTRATIVE EXEMPTION IS AVAILABLE.
GMACM HOME LOAN TRUST 2000-HLTV1
GMACM Home Loan-Backed Term Note, Class A-4
Registered Initial Note Balance:
$41,753,000
No. R-1 Note Rate: 8.27%
CUSIP NO. 36185H AD5
GMACM Home Loan Trust 2000-HLTV1, a business trust duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of forty-one million seven hundred fifty
three thousand dollars ($41,753,000), payable on each Payment Date in an amount
equal to the pro rata portion allocable hereto (based on the Initial Note
Balance specified above and the Initial Note Balance of all Class A-4 Notes) of
the aggregate amount, if any, payable from the Note Payment Account in respect
of principal of the Class A-4 Notes (the "Notes") pursuant to Section 3.05 of
the indenture dated as of March 30, 2000 (the "Indenture"), between the Issuer
and The Bank of New York, as indenture trustee (the "Indenture Trustee");
1
PROVIDED, HOWEVER, that the entire unpaid principal amount of this Note shall be
due and payable on the Payment Date in June 2025, to the extent not previously
paid on a prior Payment Date. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in Appendix A to the
Indenture.
Interest on the Notes will be paid monthly on each Payment Date at the
Note Rate for the related Interest Period. The Note Rate for this Note will be a
fixed rate equal to 8.27% per annum. Notwithstanding the foregoing, the Note
Rate on the Notes will increase by 0.50% to 8.77% per annum if the aggregate
Note Balance of the class of Notes is less than 10% of the initial aggregate
balance of such Class. Interest on this Note will accrue for each Payment Date
from the most recent Payment Date on which interest has been paid (in the case
of the first Payment Date, from the Closing Date) to but excluding such Payment
Date. Interest will be computed on the basis of the actual number of days in
each Interest Period and a year assumed to consist of 360 days. Principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
Principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its GMACM Home Loan-Backed Term Notes, Series 2000-HLTV1 (the
"Series 2000-HLTV1 Notes"), all issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders of the Series 2000-HLTV1 Notes. The Series
2000-HLTV1 Notes are subject to all terms of the Indenture.
The Series 2000-HLTV1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
This Note is entitled to the benefits of an irrevocable and unconditional
financial guaranty insurance policy issued by Ambac Assurance Corporation.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on April 18, 2000, as described in the Indenture. "Payment
Date" means the eighteenth day of each month, or, if any such date is not a
Business Day, then the next succeeding Business Day.
The entire unpaid principal amount of this Note shall be due and payable
in full on the Payment Date in June 2025 pursuant to the Indenture, to the
2
extent not previously paid on a prior Payment Date. Notwithstanding the
foregoing, if an Event of Default shall have occurred and be continuing, then
the Indenture Trustee, the Credit Enhancer or the Noteholders of Notes
representing not less than a majority of the aggregate Note Balance of the
Notes, with the consent of the Credit Enhancer, may declare the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Notes shall be made pro rata to the
Noteholders of Notes entitled thereto.
Any installment of interest or principal, if any, payable on any Note that
is punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the related Noteholder on the preceding Record Date, by
wire transfer to an account specified in writing by such Noteholder reasonably
satisfactory to the Indenture Trustee as of the preceding Record Date or, if no
such instructions have been delivered to the Indenture Trustee, by check or
money order to such Noteholder mailed to such Noteholder's address as it appears
in the Note Register, the amount required to be distributed to such Noteholder
on such Payment Date pursuant to such Noteholder's Notes; PROVIDED, HOWEVER,
that the Indenture Trustee shall not pay to such Noteholder any amount required
to be withheld from a payment to such Noteholder by the Code. Any reduction in
the principal amount of this Note (or any one or more predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Noteholders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered Noteholder hereof as of
the Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the address
specified in such notice of final payment.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the Corporate Trust
Office of the Indenture Trustee, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act, and thereupon one or more new Notes in
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the Note
Registrar 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 this Note.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a
Note, or, in the case of a Beneficial Owner of a Note, a beneficial interest in
a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee,
3
the Seller, the Servicer, the Depositor or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Beneficial Owner of a Note, by its acceptance of a Note
or, in the case of a Beneficial Owner of a Note, a beneficial interest in a
Note, covenants and agrees by accepting the benefits of the Indenture that such
Noteholder or Beneficial Owner will not at any time institute against the
Depositor, the Seller, the Servicer, GMAC Mortgage Group, Inc. or the Issuer, or
join in any institution against the Depositor, the Seller, the Servicer, GMAC
Mortgage Group, Inc. or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer.
Each Noteholder of a Note, by its acceptance of a Note (and each Beneficial
Owner of a Note by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in the name of which this Note is registered (as of
the day of determination or as of such other date as may be specified in the
Indenture) as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Indenture Trustee and the rights of the Noteholders of the Series
2000-HLTV1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of the Credit Enhancer and the Noteholders of Notes
representing a majority of the aggregate Note Balance of the Notes then
Outstanding and with prior notice to the Rating Agencies. The Indenture also
contains provisions permitting the Noteholders of Notes representing specified
percentages of the Note Balances of the Series 2000-HLTV1 Notes, on behalf of
the Noteholders of all Series 2000-HLTV1 Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
4
Noteholder of this Note (or any one of more predecessor Notes) shall be
conclusive and binding upon such Noteholder and upon all future Noteholders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Issuer and the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders of the Series 2000-HLTV1 Notes
issued thereunder but with prior notice to the Rating Agencies and the Credit
Enhancer.
The term "Issuer" as used in this Note includes any successor or the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflicts of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, The Bank of New York in its individual capacity, any owner
of a beneficial interest in the Issuer, or any of their 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 this Note or the performance of, or
the failure to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note, by its acceptance
hereof, agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, such Noteholder 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 Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in
its individual capacity, has caused this Note to be duly executed.
GMACM HOME LOAN TRUST 2000-HLTV1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: March 30, 2000
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
Dated: March 30, 2000
By:_____________________________________
Authorized Signatory
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
---------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
___________________________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: */
Signature Guaranteed:
*/
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular , without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program: as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
7
APPENDIX A
DEFINITIONS
Addition Notice: With respect to the transfer of Subsequent Home Loans to
the Issuer pursuant to Section 2.2 of the Purchase Agreement (in substantially
the form set forth in Exhibit 3 to such agreement), a notice given to the Rating
Agencies, the Indenture Trustee, the Credit Enhancer and the Owner Trustee,
which shall be given not later than seven Business Days prior to the related
Subsequent Transfer Date, of (i) the Seller's designation of Subsequent Home
Loans to be sold to the Issuer, and (ii) the aggregate principal balance as of
the Subsequent Cut-Off Date of such Subsequent Home Loans.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing.
Appraised Value: With respect to any Mortgaged Property, either (x) the
value as generally set forth in an appraisal of such Mortgaged Property used to
establish compliance with the underwriting criteria then in effect in connection
with the application for the Home Loan secured by such Mortgaged Property, or
(y) if the sales price of such Mortgaged Property was considered in accordance
with the underwriting criteria applicable to the related Home Loan, the lesser
of (i) the appraised value referred to in (x) above and (ii) the sales price of
such Mortgaged Property.
Assignment of Mortgage: With respect to any Mortgage, an assignment, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction in which the related Mortgaged Property is located to
reflect the conveyance of such Mortgage, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages secured by Mortgaged Properties located in the same
jurisdiction.
Authorized Newspaper: A newspaper of general circulation in the Borough of
Manhattan, The City of New York, printed in the English language and customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays.
Authorized Officer: With respect to the Issuer, any officer of the Owner
Trustee who is authorized to act for the Owner Trustee in matters relating to
the Issuer and who is identified on the list of Authorized Officers delivered by
the Owner Trustee to the Indenture Trustee on the Closing Date (as such list may
be modified or supplemented from time to time thereafter).
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Basic Documents: The Trust Agreement, the Indenture, the Purchase
Agreement, the Insurance Agreement, the Policy, the Servicing Agreement, the
Custodial Agreement, any
Subsequent Transfer Agreement and the other documents and certificates delivered
in connection with any of the above.
Beneficial Owner: With respect to any Note, the Person who is the
beneficial owner of such Note as reflected on the books of the Depository or on
the books of a Person maintaining an account with such Depository (directly as a
Depository Participant or indirectly through a Depository Participant, in
accordance with the rules of such Depository).
Billing Cycle: With respect to any Home Loan and Due Date, the calendar
month preceding such Due Date.
Book-Entry Notes: Beneficial interests in the Notes, ownership and
transfers of which shall be made through book entries by the Depository as
described in Section 4.06 of the Indenture.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the States of New York, Pennsylvania or
Delaware are required or authorized by law to be closed.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Codess.ss.3801 et seq., as the same may be amended from time to time.
Capitalized Interest Account: The account established and maintained
pursuant to Section 3.18 of the Servicing Agreement.
Capitalized Interest Requirement: With respect to each Payment Date during
the Pre-Funding Period, the excess, if any of (i) the sum of (A) the amount of
interest accrued at the applicable Note Rate or Rates on the respective Note
Balances for the related Interest Period on the amount on deposit in the
Pre-Funding Account as of the preceding Payment Date (or as of the Closing Date,
in the case of the first Payment Date) and (B) the amount of any fees paid to
the Credit Enhancer and and any amounts owed for the Limited Reimbursement
Agreement, over (ii) the amount of reinvestment earnings for the related
Interest Period on funds on deposit in the Pre-Funding Account.
Certificate Balance: With respect to any Payment Date and any Certificate,
an amount equal to the then applicable Certificate Percentage Interest of such
Certificate multiplied by the Overcollateralization Amount.
Certificate Distribution Amount: For any Payment Date, the amount, if any,
distributable on the Certificates for such Payment Date pursuant to Section
3.05(a)(xii) of the Indenture.
Certificate Paying Agent: The meaning specified in Section 3.10 of the
Trust Agreement.
Certificate Percentage Interest: With respect to any Payment Date and any
Certificate, the Percentage Interest for such Certificate.
2
Certificate Register: The register maintained by the Certificate Registrar
in which the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates.
Certificate of Trust: The Certificate of Trust filed for the Trust pursuant
to Section 3810(a) of the Business Trust Statute.
Certificate Registrar: Initially, the Indenture Trustee, in its capacity as
Certificate Registrar.
Certificateholder: The Person in whose name a Certificate is registered in
the Certificate Register except that, any Certificate registered in the name of
the Issuer, the Owner Trustee or the Indenture Trustee or any Affiliate of the
Owner Trustee or the Indenture Trustee shall be deemed not to be outstanding and
the registered holder will not be considered a Certificateholder for purposes of
giving any request, demand, authorization, direction, notice, consent or waiver
under the Indenture or the Trust Agreement; provided that, in determining
whether the Indenture Trustee or the Owner Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates that the Indenture Trustee or the Owner Trustee knows
to be so owned shall be so disregarded. Owners of Certificates that have been
pledged in good faith may be regarded as Certificateholders if the pledgee
establishes to the satisfaction of the Indenture Trustee or the Owner Trustee,
as the case may be, the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Issuer, any other obligor upon the
Certificates or any Affiliate of the Owner Trustee or the Indenture Trustee.
Certificates: The certificates in substantially the form set forth in
Exhibit A to the Trust Agreement.
Class: With respect to any Note, all Notes that bear the same class
designation, (i.e., the Class A-1 Notes as a group, the Class A-2 Notes as a
group, the Class A-3 Notes as a group or the Class A-4 Notes as a group).
Class A-1 Notes: The Class A-1 GMACM Home Loan-Backed Term Notes, Series
2000-HLTV1, in substantially the form set forth in Exhibit A-1 to the Indenture.
Class A-2 Notes: The Class A-2 GMACM Home Loan-Backed Term Notes, Series
2000-HLTV1, in substantially the form set forth in Exhibit A-1 to the Indenture.
Class A-3 Notes: The Class A-3 GMACM Home Loan-Backed Term Notes, Series
2000-HLTV1, in substantially the form set forth in Exhibit A-1 to the Indenture.
Class A-4 Notes: The Class A-4 GMACM Home Loan-Backed Term Notes, Series
2000-HLTV1, in substantially the form set forth in Exhibit A-1 to the Indenture.
Closing Date: March 30, 2000.
Code: The Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
3
Collateral: The meaning specified in the Granting Clause of the Indenture.
Collection Period: With respect to any Home Loan and Payment Date, the
calendar month preceding any such Payment Date.
Collections: With respect to any Collection Period, all Interest
Collections and Principal Collections during such Collection Period.
Combined Loan-to-Value Ratio or CLTV: With respect to each Home Loan, the
ratio, expressed as a percentage, of the sum of (i) the initial principal
balance of such Home Loan and (ii) any outstanding principal balance, at
origination of such Home Loan, of all other mortgage loans, if any, secured by
senior or subordinate liens on the related Mortgaged Property, to the Appraised
Value, or, when not available, the Stated Value.
Commission: The Securities and Exchange Commission.
Corporate Trust Office: With respect to the Indenture Trustee, Certificate
Registrar, Certificate Paying Agent and Paying Agent, the principal corporate
trust office of the Indenture Trustee and Note Registrar at which at any
particular time its corporate trust business shall be administered, which office
at the date of the execution of this instrument is located at 000 Xxxxxxx
Xxxxxx, 00-X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust-GMACM Series
2000-HLTV1. With respect to the Owner Trustee, the principal corporate trust
office of the Owner Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of the execution of
this Trust Agreement is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration.
Credit Enhancer: Ambac Assurance Corporation, any successor thereto or any
replacement Credit Enhancer substituted pursuant to the Indenture.
Credit Enhancer Default: Any failure by the Credit Enhancer to make a
payment required under the Policy in accordance with its terms.
Custodial Account: The account or accounts created and maintained by the
Servicer pursuant to Section 3.02(b) of the Servicing Agreement, in which the
Servicer shall deposit or cause to be deposited certain amounts in respect of
the Home Loans.
Custodial Agreement: Any Custodial Agreement among the Custodian, the
Indenture Trustee, the Issuer and the Servicer relating to the custody of the
Home Loans and the Related Documents.
Custodian: Escrow Bank USA, an industrial loan corporation established
under the laws of the State of Utah, and its successors and assigns, or any
successor custodian for the Mortgage Files appointed by the Indenture Trustee
and reasonably acceptable to the Credit Enhancer and the Servicer.
Cut-Off Date: March 1, 2000.
4
Cut-Off Date Principal Balance: With respect to any Initial Home Loan or
Subsequent Home Loan, the unpaid principal balance thereof as of the close of
business on the last day of the Billing Cycle immediately prior to the Cut-Off
Date or Subsequent Cut-Off Date, as the case may be.
Debt Service Reduction: With respect to any Home Loan, a reduction in the
scheduled payment for such Home Loan by a court of competent jurisdiction in a
proceeding under the Bankruptcy Code, except such a reduction constituting a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Default: Any occurrence which is or with notice or the lapse of time or
both would become an Event of Default.
Deficient Valuation: With respect to any Home Loan, a valuation by a court
of competent jurisdiction of the related Mortgaged Property in an amount less
than the then outstanding indebtedness under such Home Loan, or any reduction in
the amount of principal to be paid in connection with any scheduled payment that
constitutes a permanent forgiveness of principal, which valuation or reduction
results from a proceeding under the Bankruptcy Code.
Definitive Notes: The meaning specified in Section 4.06 of the Indenture.
Deleted Loan: A Home Loan replaced or to be replaced with an Eligible
Substitute Loan.
Depositor: Residential Asset Mortgage Products, Inc., a Delaware
corporation, or its successor in interest.
Depository: The Depository Trust Company or a successor appointed by the
Indenture Trustee with the approval of the Issuer. Any successor to the
Depository shall be an organization registered as a "clearing agency" pursuant
to Section 17A of the Exchange Act and the regulations of the Commission
thereunder.
Depository Participant: A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
Determination Date: With respect to any Payment Date, the 13th day of the
month in which such Payment Date occurs or if such day is not a Business Day,
the next succeeding Business Day.
Distribution Account: The account or accounts created and maintained by the
Certificate Paying Agent pursuant to Section 3.10(c) of the Trust Agreement. The
Certificate Paying Agent will make all distributions on the Certificates from
money on deposit in the Distribution Account.
Due Date: With respect to the Home Loans, the date on which the Monthly
Payment thereon is due in accordance with the terms of the related Mortgage
Note.
Eligible Account: An account that is any of the following: (i) maintained
with a depository institution the short-term debt obligations of which have been
rated by each Rating
5
Agency in its highest rating category available, or (ii) an account or accounts
in a depository institution in which such accounts are fully insured to the
limits established by the FDIC, provided that any deposits not so insured shall,
to the extent acceptable to each Rating Agency, as evidenced in writing, be
maintained such that (as evidenced by an Opinion of Counsel delivered to the
Indenture Trustee and each Rating Agency) the Indenture Trustee have a claim
with respect to the funds in such account or a perfected first security interest
against any collateral (which shall be limited to Permitted Investments)
securing such funds that is superior to claims of any other depositors or
creditors of the depository institution with which such account is maintained,
or (iii) an account or accounts maintained with a depository institution or
trust company, as long as its short term debt obligations are rated P-1 by
Xxxxx'x and A-1+ by Standard & Poor's (or the equivalent) or better by each
Rating Agency, and its long term debt obligations are rated A2 by Xxxxx'x and
AA- by Standard & Poor's (or the equivalent) or better by each Rating Agency, or
(iv) a segregated trust account or accounts maintained in the corporate trust
division of a depository institution or trust company, acting in its fiduciary
capacity, or (v) an account or accounts of a depository institution acceptable
to each Rating Agency (as evidenced in writing by each Rating Agency that use of
any such account will not cause a Rating Event (if determined without regard to
the Policy)).
Eligible Substitute Loan: A Home Loan substituted by the Seller for a
Deleted Loan, which must, on the date of such substitution, as confirmed in an
Officers' Certificate delivered to the Indenture Trustee, (i) have an
outstanding principal balance, after deduction of the principal portion of the
monthly payment due in the month of substitution (or in the case of a
substitution of more than one Home Loan for a Deleted Loan, an aggregate
outstanding principal balance, after such deduction), not in excess of the
outstanding principal balance of the Deleted Loan (the amount of any shortfall
to be deposited by the Seller in the Custodial Account in the month of
substitution); (ii) comply with each representation and warranty set forth in
Section 3.1(b) of the Purchase Agreement, other than clauses (viii), (xiii),
(xiv), (xxiv), (xxv) and (xxvii), as of the date of substitution; (iii) have a
Loan Rate and Net Loan Rate no lower than and not more than 1% per annum higher
than the Loan Rate and Net Loan Rate, respectively, of the Deleted Loan as of
the date of substitution; (iv) have a CLTV at the time of substitution no higher
than that of the Deleted Loan at the time of substitution; (v) have a remaining
term to stated maturity not greater than (and not more than one year less than)
that of the Deleted Loan; (vi) is a REMIC Ineligible Loan, if such Deleted Loan
was a REMIC Ineligible Loan and (vii) not be 30 days or more delinquent.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: With respect to the Indenture, any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) a default in the payment of the principal of, any installment of the
principal of or interest on any Note when the same becomes due and payable, and
such default shall continue for a period of five (5) days;
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(b) there occurs a default in the observance or performance in any material
respect of any covenant or agreement of the Issuer made in the Indenture, or any
representation or warranty of the Issuer made in the Indenture or in any
certificate delivered pursuant hereto or in connection herewith proving to have
been incorrect in any material respect as of the time when the same shall have
been made that has a material adverse effect on the Noteholders or the Credit
Enhancer, and such default shall continue or not be cured, or the circumstance
or condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of 30 days after
there shall have been given, by registered or certified mail, to the Issuer by
the Indenture Trustee or to the Issuer and the Indenture Trustee by the Credit
Enhancer or the Noteholders of at least 25% of the aggregate Note Balance of the
Notes, a written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice is a
notice of default hereunder;
(c) there occurs the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(d) there occurs the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an order
for relief in an involuntary case under any such law, or the consent by the
Issuer to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Issuer or
for any substantial part of the assets of the Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors, or the failure by
the Issuer generally to pay its debts as such debts become due, or the taking of
any action by the Issuer in furtherance of any of the foregoing.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Existing Lien: The meaning specified in Section 3.05 of the Servicing
Agreement.
Expenses: The meaning specified in Section 7.02 of the Trust Agreement.
Xxxxxx Xxx: Xxxxxx Xxx, formerly the Federal National Mortgage Association,
or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
Final Payment Date: The Payment Date in June 2025.
Fiscal Year: The fiscal year of the Trust, which shall end on December 31
of each year.
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Foreclosure Profit: With respect to a Liquidated Home Loan, the amount, if
any, by which (i) the aggregate of Liquidation Proceeds net of Liquidation
Expenses exceeds (ii) the Principal Balance of such Liquidated Home Loan (plus
accrued and unpaid interest thereon at the applicable Loan Rate from the date
interest was last paid through the date of receipt of the final Liquidation
Proceeds) immediately prior to the final recovery of the related Liquidation
Proceeds.
Freddie Mac: Freddie Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
GAAP: Generally accepted accounting principles.
Xxxxx: Pledge, bargain, sell, warrant, alienate, remise, release, convey,
assign, transfer, create, and xxxxx x xxxx upon and a security interest in and
right of set-off against, deposit, set over and confirm pursuant to the
Indenture. A Grant of the Collateral or of any other agreement or instrument
shall include all rights, powers and options (but none of the obligations) of
the granting party thereunder, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of such collateral or other agreement or instrument and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring proceedings in the name of the granting party or otherwise, and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
GMAC: General Motors Acceptance Corporation, and its successors and
assigns.
GMACM: GMAC Mortgage Corporation, and its successors and assigns.
Home Loan Schedule: The initial schedule of Initial Home Loans as of the
Cut-Off Date set forth in Exhibit A of the Servicing Agreement, and as of each
Subsequent Cut-off Date, any Subsequent Home Loans, which schedule sets forth as
to each Home Loan the (i) Cut-Off Date Principal Balance, (ii) name of the
related Mortgagor, (iii) loan number, (iv) address of the related Mortgagor, (v)
lien position of the related Mortgage, (vi) original term to maturity of the
related Mortgage Note, (vii) date of the related Mortgage Note, (viii) maturity
date of the related Mortgage Note, (ix) Appraised Value of the related Mortgaged
Property, (x) unpaid principal balance of a mortgage loan secured by a lien
senior to the Home Loan, (xi) CLTV, (xii) debt-to-income ratio of the related
Mortgagor, and (xiii) number of residential units on the related Mortgaged
Property.
Home Loans: At any time, all Initial Home Loans and Subsequent Home Loans,
if any, that have been sold to the Issuer pursuant to, in the case of Initial
Home Loans, the Trust Agreement, or, in the case of Subsequent Home Loans, a
Subsequent Transfer Agreement, together with all monies due or become due
thereunder or the Related Documents, and that remain subject to the terms
thereof.
Indemnified Party: The meaning specified in Section 7.02 of the Trust
Agreement.
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Indenture: The indenture dated as of March 30, 2000 between the Issuer and
the Indenture Trustee.
Indenture Trustee: The Bank of New York, a New York banking corporation,
and its successors and assigns or any successor indenture trustee appointed
pursuant to the terms of the Indenture.
Independent: When used with respect to any specified Person, such Person
(i) is in fact independent of the Issuer, any other obligor on the Notes, the
Seller, the Depositor and any Affiliate of any of the foregoing Persons, (ii)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller, the Depositor or any
Affiliate of any of the foregoing Persons and (iii) is not connected with the
Issuer, any such other obligor, the Seller, the Depositor or any Affiliate of
any of the foregoing Persons as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to the
Indenture Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 10.01 of the Indenture, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in this Indenture and that the signer is Independent within the meaning thereof.
Initial Home Loans: The Home Loans initially transferred by the Depositor
to the Issuer on the Closing Date, which are listed on the Home Loan Schedule on
such date.
Initial Aggregate Note Balance: $155,000,000.
Initial Class A-1 Note Balance: $64,570,000.
Initial Class A-2 Note Balance: $18,887,000.
Initial Class A-3 Note Balance: $29,790,000.
Initial Class A-4 Note Balance: $41,753,000.
Insolvency Event: With respect to a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any substantial
part of its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by such Person to the entry of an
order for relief in an involuntary case under any such law, or the consent by
such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or the
9
making by such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become due
or the admission by such Person in writing (as to which the Indenture Trustee
shall have notice) of its inability to pay its debts generally, or the adoption
by the Board of Directors or managing member of such Person of a resolution
which authorizes action by such Person in furtherance of any of the foregoing.
Insurance Agreement: The Insurance and Indemnity Agreement dated as of
March 30, 2000, among the Servicer, the Seller, the Depositor, the Issuer, the
Indenture Trustee and the Credit Enhancer, including any amendments and
supplements thereto.
Insurance Proceeds: Proceeds paid by any insurer (other than the Credit
Enhancer) pursuant to any insurance policy covering a Home Loan which are
required to be remitted to the Servicer, or amounts required to be paid by the
Servicer pursuant to the next to last sentence of Section 3.04 of the Servicing
Agreement, net of any component thereof (i) covering any expenses incurred by or
on behalf of the Servicer in connection with obtaining such proceeds, (ii) that
is applied to the restoration or repair of the related Mortgaged Property, (iii)
released to the related Mortgagor in accordance with the Servicer's normal
servicing procedures or (iv) required to be paid to any holder of a mortgage
senior to such Home Loan.
Insured Amount: As defined in the Policy.
Interest Collections: With respect to any Payment Date, the sum of (i) the
portion allocable to interest of all scheduled monthly payments on the Home
Loans received during the related Collection Period, minus the Servicing Fee for
the related Collection Period, (ii) the portion of all Net Liquidation Proceeds
allocable to interest pursuant to the terms of the Mortgage Notes, reduced by
the Servicing Fee for the related Collection Period and (iii) the interest
portion of the Repurchase Price for any Deleted Loans and the cash purchase
price paid in connection with any optional purchase of the Home Loans by the
Servicer. The terms of the related Mortgage Note shall determine the portion of
each payment in respect of each Home Loan that constitutes principal or
interest.
Interest Coverage Amount: The amount to be paid from proceeds received from
the sale of the Notes for deposit into the Capitalized Interest Account pursuant
to Section 3.18 of the Servicing Agreement on the Closing Date, which amount
initially shall be $616,241.09, and thereafter, shall be the amount computed in
accordance with Section 3.18.
Interest Period: With respect to the Class A-1 Notes and any Payment Date
other than the first Payment Date, the period beginning on the preceding Payment
Date and ending on the day preceding such Payment Date, and in the case of the
first Payment Date, the period beginning on March 30, 2000 and ending on the day
preceding the first Payment Date. With respect to the Class A-2 Notes, Class A-3
Notes and Class A-4 Notes and any Payment Date, the calendar month preceding the
month in which such Payment Date occurs.
Issuer or Trust: The GMACM Home Loan Trust 2000-HLTV1, a Delaware business
trust, or its successor in interest.
Issuer Order or Issuer Request: A written order or request signed in the
name of the Issuer by any one of its Authorized Officers and delivered to the
Indenture Trustee.
10
LIBOR: As to any Interest Period, (a) for any Interest Period other than
the first Interest Period, the rate for United States dollar deposits for one
month that appears on the Telerate Screen Page 3750 as of 11:00 a.m., London,
England time, on the second LIBOR Business Day prior to the first day of that
Interest Period or (b) with respect to the first Interest Period, the rate for
United States dollar deposits for one month that appears on the Telerate Screen
Page 3750 as of 11:00 a.m., London, England time, two LIBOR Business Days prior
to the Closing Date. If such rate does not appear on such page (or other page as
may replace that page on that service, or if such service is no longer offered,
such other service for displaying LIBOR or comparable rates as may be reasonably
selected by the Indenture Trustee after consultation with the Servicer), the
rate will be the Reference Bank Rate. If no such quotations can be obtained and
no Reference Bank Rate is available, LIBOR will be LIBOR applicable to the
preceding Payment Date.
LIBOR Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the city of London, England are required or
authorized by law to be closed.
Lien: Any mortgage, deed of trust, pledge, conveyance, hypothecation,
assignment, participation, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC (other than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing; provided,
however, that any assignment pursuant to Section 6.02 of the Servicing Agreement
shall not be deemed to constitute a Lien.
Limited Reimbursement Agreement: The limited reimbursement agreement
entered into by the Credit Enhancer on the Closing Date.
Liquidated Home Loan: With respect to any Payment Date, any Home Loan in
respect of which the Servicer has determined, in accordance with the servicing
procedures specified in the Servicing Agreement, as of the end of the related
Collection Period that substantially all Liquidation Proceeds which it
reasonably expects to recover, if any, with respect to the disposition of the
related REO Property have been recovered, provided that, unless a longer period
is otherwise agreed to in writing by the Credit Enhancer, the Servicer will
treat any Home Loan that is 180 days or more delinquent as having been finally
liquidated.
Liquidation Expenses: All out-of-pocket expenses (exclusive of overhead)
incurred by or on behalf of the Servicer in connection with the liquidation of
any Home Loan and not recovered under any insurance policy, including legal fees
and expenses, any unreimbursed amount expended (including, without limitation,
amounts advanced to correct defaults on any mortgage loan which is senior to
such Home Loan and amounts advanced to keep current or pay off a mortgage loan
that is senior to such Home Loan) respecting such Home Loan and any related and
unreimbursed expenditures for real estate property taxes or for property
restoration, preservation or insurance against casualty loss or damage.
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Liquidation Loss Amount: With respect to any Payment Date and any Home Loan
that became a Liquidated Home Loan during the related Collection Period, the
unrecovered portion of the Principal Balance of such Home Loan and any unpaid
accrued interest thereon at the end of such Collection Period, after giving
effect to the Net Liquidation Proceeds applied in reduction of such Principal
Balance.
Liquidation Loss Distribution Amount: With respect to any Payment Date, the
aggregate of (A) 100% of the Liquidation Loss Amounts on such Payment Date, plus
(B) any such Liquidation Loss Amounts remaining undistributed from any preceding
Payment Date, provided that any such Liquidation Loss Distribution Amount
remaining undistributed from any preceding Payment Date shall not be distributed
to the extent that it was paid by means of a draw on the Policy or was reflected
in the reduction of the Overcollateralization Amount.
Liquidation Proceeds: Proceeds (including Insurance Proceeds but not
including amounts drawn under the Policy) if any received in connection with the
liquidation of any Home Loan or related REO Property, whether through trustee's
sale, foreclosure sale or otherwise.
Loan Rate: With respect to any Home Loan and any day, the per annum rate of
interest applicable under the related Mortgage Note.
Lost Note Affidavit: With respect to any Home Loan as to which the original
Mortgage Note has been permanently lost or destroyed and has not been replaced,
an affidavit from the Seller certifying that the original Mortgage Note has been
lost, misplaced or destroyed (together with a copy of the related Mortgage Note,
if available).
Monthly Payment: With respect to any Home Loan (including any REO Property)
and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment, if any, for any partial Principal Prepayments thereon and for
Deficient Valuations occurring prior to such Due Date but before any adjustment
to such amortization schedule by reason of any bankruptcy, other than a
Deficient Valuation, or similar proceeding or any moratorium or similar waiver
or grace period).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first
or second lien on an estate in fee simple interest in real property securing a
Home Loan.
Mortgage File: The file containing the Related Documents pertaining to a
particular Home Loan and any additional documents required to be added thereto
pursuant to the Purchase Agreement or the Servicing Agreement.
Mortgage Note: With respect to a Home Loan, the promissory note pursuant to
which the related Xxxxxxxxx agrees to pay the indebtedness evidenced thereby and
secured by the related Mortgage as modified or amended.
Mortgaged Property: The underlying property, including real property and
improvements thereon, securing a Home Loan.
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Mortgagor: The obligor or obligors under a Mortgage Note.
Net Liquidation Proceeds: With respect to any Liquidated Home Loan,
Liquidation Proceeds net of Liquidation Expenses (but not including the portion,
if any, of such amount that exceeds the Principal Balance of such Home Loan at
the end of the Collection Period immediately preceding the Collection Period in
which such Home Loan became a Liquidated Home Loan).
Net Loan Rate: With respect to any Payment Date, the weighted average of
the Loan Rates of the Home Loans as of the first day of the calendar month in
which the related Interest Period begins, net of the premium rate on the Policy
and the Servicing Fee Rate.
Note Balance: With respect to any Payment Date and any Class of Notes, the
Initial Note Balance thereof reduced by all payments of principal thereon prior
to and as of such Payment Date.
Note Owner or Owner: The Beneficial Owner of a Note.
Note Payment Account: The account established by the Indenture Trustee
pursuant to Section 8.02 of the Indenture and Section 5.01 of the Servicing
Agreement. Amounts deposited in the Note Payment Account will be distributed by
the Indenture Trustee in accordance with Section 3.05 of the Indenture.
Note Rate: As to the Notes, the following rates:
Class A-1 Notes: a floating rate equal to the lesser of (i) LIBOR plus
0.20% per annum, and (ii) 10.00% per annum;
Class A-2 Notes: a fixed rate equal to 7.84% per annum;
Class A-3 Notes: a fixed rate equal to 8.17% per annum; and
Class A-4 Notes: a fixed rate equal to 8.27% per annum (or, for any
Interest Period commencing immediately following the first Payment Date on
which the aggregate Principal Balance of the Home Loans is less than 10% of
the initial Pool Balance, a fixed rate equal to 8.77% per annum).
Note Register: The register maintained by the Note Registrar in which the
Note Registrar shall provide for the registration of Notes and of transfers and
exchanges of Notes.
Note Registrar: The Indenture Trustee, in its capacity as Note Registrar.
Noteholder: The Person in whose name a Note is registered in the Note
Register, except that, any Note registered in the name of the Depositor, the
Issuer or the Indenture Trustee or any Affiliate of any of them shall be deemed
not to be outstanding and the registered holder will not be considered a
Noteholder for purposes of giving any request, demand, authorization, direction,
notice, consent or waiver under the Indenture or the Trust Agreement; provided,
that in determining whether the Indenture Trustee shall be protected in relying
upon any such request,
13
demand, authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee or the Owner Trustee knows to be so owned shall be so
disregarded. Owners of Notes that have been pledged in good faith may be
regarded as Noteholders if the pledgee thereof establishes to the satisfaction
of the Indenture Trustee or the Owner Trustee such pledgee's right so to act
with respect to such Notes and that such pledgee is not the Issuer, any other
obligor on the Notes or any Affiliate of any of the foregoing Persons.
Notes: Any one of the Class A-1, Class A-2, Class A-3 or the Class A-4
Notes issued and outstanding at any time pursuant to the Indenture.
Officer's Certificate: With respect to the Servicer, a certificate signed
by the President, Managing Director, a Director, a Vice President or an
Assistant Vice President, of the Servicer and delivered to the Indenture
Trustee. With respect to the Issuer, a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 10.01 of the Indenture,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in the Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer.
Opinion of Counsel: A written opinion of counsel of a law firm reasonably
acceptable to the recipient thereof. Any Opinion of Counsel for the Servicer may
be provided by in-house counsel for the Servicer if reasonably acceptable.
Original Pre-Funded Amount: The amount deposited from the proceeds of the
sale of the Securities into the Pre-Funding Account on the Closing Date, which
amount is $38,251,940.50.
Outstanding: With respect to the Notes, as of the date of determination,
all Notes theretofore executed, authenticated and delivered under this Indenture
except:
(i) Notes theretofore cancelled by the Note Registrar or delivered to
the Indenture Trustee for cancellation; and
(ii) Notes in exchange for or in lieu of which other Notes have been
executed, authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a holder in due course;
provided, however, that for purposes of effectuating the Credit Enhancer's right
of subrogation as set forth in Section 4.12 of the Indenture only, all Notes
that have been paid with funds provided under the Policy shall be deemed to be
Outstanding until the Credit Enhancer has been reimbursed with respect thereto.
Overcollateralization Amount: With respect to any Payment Date, the amount
(but not less than zero), if any, by which (a) the Pool Balance after applying
payments received in the related Collection Period (but without further
reduction due to any Home Loan becoming a Liquidated Home Loan during such
Collection Period), exceeds (b) the aggregate Note Balance of the Notes on such
Payment Date (after application of the Principal Collections and Liquidation
Loss Amounts for such date). The Overcollateralization Amount is subject to
reduction on any Payment Date as described in Section 3.05(c) of the Indenture.
14
Overcollateralization Increase Amount: With respect to any Payment Date, an
amount equal to the lesser of (i) the amount remaining in the Note Payment
Account following distributions pursuant to Section 3.05(a)(v) of the Indenture
and (ii) the amount necessary to increase the Overcollateralization Amount to
the Required Overcollateralization Amount.
Overcollateralization Release Amount: With respect to any date of
determination, the excess, if any, of the Overcollateralization Amount over the
Required Overcollateralization Amount.
Owner Trust: GMACM Loan Trust 2000-HLTV1, created by the Certificate of
Trust pursuant to the Trust Agreement.
Owner Trustee: Wilmington Trust Company, not in its individual capacity but
solely as owner trustee, and its successors and assigns or any successor Owner
Trustee appointed pursuant to the terms of the Trust Agreement.
Paying Agent: Any paying agent or co-paying agent appointed pursuant to
Section 3.03 of the Indenture, which initially shall be the Indenture Trustee.
Payment Date: The 18th day of each month, or if such day is not a Business
Day, then the next Business Day.
Percentage Interest: With respect to any Note and Payment Date, the
percentage obtained by dividing the Note Balance of such Note by the aggregate
Note Balance of all Notes prior to such Payment Date. With respect to any
Certificate and any Payment Date, the Percentage Interest stated on the face of
such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the United
States or any agency or instrumentality thereof when such obligations are backed
by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i) above
maturing not more than one month from the date of acquisition thereof; provided,
that the unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency in its highest
short-term rating category available;
(iii)federal funds, certificates of deposit, demand deposits, time deposits
and bankers' acceptances (which shall each have an original maturity of not more
than 90 days and, in the case of bankers' acceptances, shall in no event have an
original maturity of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars of any U.S. depository institution or
trust company incorporated under the laws of the United States or any state
thereof or of any domestic branch of a foreign depository institution or trust
company; provided that the debt obligations of such depository institution or
trust company (or, if the only Rating Agency is Standard & Poor's, in the case
of the principal depository institution in a depository institution holding
company, debt obligations of the depository institution holding company) at the
date of acquisition thereof have been rated by each Rating Agency in its highest
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short-term rating category available; and provided further, that if the only
Rating Agency is Standard & Poor's and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of such
subsidiary are not separately rated, the applicable rating shall be that of the
bank holding company; and provided further, that if the only Rating Agency is
Standard & Poor's and the original maturity of such short-term obligations of a
domestic branch of a foreign depository institution or trust company shall
exceed 30 days, the short-term rating of such institution shall be A-1+;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been rated by each Rating
Agency in its highest short-term rating category available; provided, that such
commercial paper shall have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by each Rating
Agency in one of its two highest long-term rating category available including
any fund advised by the Indenture Trustee or an Affiliate thereof;
(vi) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and will not cause a Rating Event,
and which are acceptable to the Credit Enhancer, as evidenced in writing;
provided, that if the Servicer or any other Person controlled by the Servicer is
the issuer or the obligor of any obligation or security described in this clause
(vi), such obligation or security must have an interest rate or yield that is
fixed or is variable based on an objective index that is not affected by the
rate or amount of losses on the Home Loans; and
(vii)GMAC Variable Denomination Adjustable Rate Demand Notes constituting
unsecured, senior debt obligations of General Motors Acceptance Corporation as
outlined in the prospectus dated June 17, 1998 rated by each Rating Agency in
its highest short-term rating category available;
provided, however, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Aaa in the
case of Moody's, and references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean A-1 in the
case of Standard & Poor's and P-1 in the case of Moody's.
Person: Any legal individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Plan: The meaning specified in Section 3.05 of the Trust Agreement.
Plan Assets: The meaning specified in Section 3.05 of the Trust Agreement.
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Policy: The Certificate Guaranty Insurance Policy #AB0352BE, dated as of
the Closing Date, issued by the Credit Enhancer.
Policy Draw Amount: With respect to any Payment Date other than the Final
Payment Date, an amount, if any, equal to (1) the sum of (a) the amount by which
the aggregate amount of accrued interest on the Notes (excluding the aggregate
Relief Act Shortfalls, if any, for such Payment Date) at the respective Note
Rates on such Payment Date exceeds the amount on deposit in the Note Payment
Account available for interest distributions on such Payment Date, and (b) any
Liquidation Loss Amount for such Payment Date, to the extent not currently
covered by a Liquidation Loss Distribution Amount or a reduction in the
Overcollateralization Amount, minus (2) the amount of any payments made to the
Indenture Trustee with respect to that date under the Limited Reimbursement
Agreement. With respect to the Final Payment Date, an amount, if any, equal to
(1) the sum of (a) the amount by which the aggregate amount of accrued interest
on the Notes (excluding the aggregate Relief Act Shortfalls, if any, for such
Payment Date) at the respective Note Rates on the Final Payment Date exceeds the
amount on deposit in the Note Payment Account available for interest
distributions on the Final Payment Date, and (b) the aggregate outstanding Note
Balance of each Class of Notes to the extent not otherwise paid on such date,
minus (2) the amount of any payments made to the Indenture Trustee with respect
to that date under the Limited Reimbursement Agreement.
Pool Balance: With respect to any date, the aggregate Principal Balance of
all Home Loans as of such date and (during the Pre-Funding Period) the
Pre-Funded Amount.
Pre-Funded Amount: With respect to any date of determination during the
Pre-Funding Period, the amount on deposit in the Pre-Funding Account.
Pre-Funding Account: The account established and maintained pursuant to
Section 3.17 of the Servicing Agreement.
Pre-Funding Period: The period commencing on the Closing Date until the
earliest of (i) the date on which the amount on deposit in the Pre-Funding
Account is less than $50,000, (ii) June 30, 2000 or (iii) the occurrence of a
Servicing Default.
Predecessor Note: With respect to any Note, every previous Note evidencing
all or a portion of the same debt as that evidenced by such Note; and, for the
purpose of this definition, any Note authenticated and delivered under Section
4.03 of the Indenture in lieu of a mutilated, lost, destroyed or stolen Note
shall be deemed to evidence the same debt as such mutilated, lost, destroyed or
stolen Note.
Premium: The amount of premium due to the Credit Enhancer in accordance
with the terms of the Insurance Agreement.
Premium Percentage: As set forth in the Insurance Agreement.
Principal Balance: With respect to any Home Loan, other than a Liquidated
Home Loan, and as of any day, the related Cut-Off Date Principal Balance, minus
all collections credited as principal in respect of any such Home Loan in
accordance with the related Mortgage Note and applied in reduction of the
Principal Balance thereof. For purposes of this definition, a
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Liquidated Home Loan shall be deemed to have a Principal Balance equal to the
Principal Balance of the related Home Loan immediately prior to the final
recovery of substantially all related Liquidation Proceeds and a Principal
Balance of zero thereafter.
Principal Collection Distribution Amount: For any Payment Date, the total
Principal Collections for such Payment Date less any Overcollateralization
Release Amount for such Payment Date.
Principal Collections: With respect to any Payment Date, an amount equal to
the sum of (i) the principal portion of all scheduled Monthly Payments on the
Home Loans received during the related Collection Period, as reported by the
Servicer or the related Subservicer; (ii) the principal portion of all proceeds
of the repurchase of any Home Loans (or, in the case of a substitution, any
Substitution Adjustment Amounts) as required by the Servicing Agreement during
the related Collection Period; (iii) the principal portion of all other
unscheduled collections received on the Home Loans during the related Collection
Period (or deemed to be received during the related Collection Period,
including, without limitation, full and partial Principal Prepayments made by
the respective Mortgagors, Insurance Proceeds and Net Liquidation Proceeds), to
the extent not previously distributed; and (iv) on the Payment Date immediately
following the end of the Pre-Funding Period, any amount transferred from the
Pre-Funding Account to the Note Payment Account in accordance with Section 3.17
of the Servicing Agreement.
Principal Prepayment: Any payment of principal made by the Mortgagor on a
Home Loan which is received in advance of its scheduled Due Date and which is
not accompanied by an amount of interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of prepayment.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Program Guide: The GMACM Home Equity Servicing Guidelines, as in effect
from time to time.
Prospectus Supplement: The prospectus supplement dated March 23, 2000,
relating to the Notes.
Purchase Agreement: The home loan purchase agreement dated as of March 30,
2000, among the Seller, the Purchaser, the Issuer and the Indenture Trustee.
Purchase Price: The meaning specified in Section 2.3(a) of the Purchase
Agreement.
Purchaser: Residential Asset Mortgage Products, Inc., as purchaser under
the Purchase Agreement.
Rating Agency: Each of Xxxxx'x and Standard & Poor's, or, if either such
organization or a successor thereto is no longer in existence, such nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Indenture Trustee. References herein to the highest short term
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unsecured rating category of a Rating Agency shall mean A-1+ or better in the
case of Standard & Poor's and P-1 or better in the case of Xxxxx'x; and in the
case of any other Rating Agency, shall mean such equivalent ratings. References
herein to the highest long-term rating category of a Rating Agency shall mean
"AAA" in the case of Standard & Poor's and "Aaa" in the case of Xxxxx'x; and in
the case of any other Rating Agency, such equivalent rating.
Rating Event: The qualification, reduction or withdrawal by a Rating Agency
of its then-current rating of the Notes.
Record Date: With respect to the Class A-1 Notes and any Payment Date, the
Business Day next preceding such Payment Date and with respect to the Class A-2,
Class A-3, Class A-4 Notes, the Certificates and any Payment Date, the last
Business Day of the month preceding the month of such Payment Date.
Reference Bank Rate: With respect to any Interest Period, as follows: the
arithmetic mean (rounded upwards, if necessary, to the nearest one sixteenth of
one percent) of the offered rates for United States dollar deposits for one
month which are offered by the Reference Banks as of 11:00 a.m., London, England
time, on the second LIBOR Business Day prior to the first day of such Interest
Period to prime banks in the London interbank market for a period of one month
in amounts approximately equal to the sum of the outstanding Note Balance of the
Notes; provided, that at least two Reference Banks provide such rate. If fewer
than two offered rates appear, the Reference Bank Rate will be the arithmetic
mean of the rates quoted by one or more major banks in New York City, selected
by the Indenture Trustee after consultation with the Servicer and the Credit
Enhancer, as of 11:00 a.m., New York time, on such date for loans in U.S.
Dollars to leading European Banks for a period of one month in amounts
approximately equal to the aggregate Note Balance of the Notes. If no such
quotations can be obtained, the Reference Bank Rate will be the Reference Bank
Rate applicable to the preceding Interest Period.
Reference Banks: Barclays Bank plc, National Westminster Bank and Bankers
Trust Company.
Related Documents: With respect to each Home Loan, the documents specified
in Section 2.1(c) of the Purchase Agreement and any documents required to be
added to such documents pursuant to the Purchase Agreement, the Trust Agreement
or the Servicing Agreement.
Relief Act Shortfalls: With respect to any Payment Date, for any Home Loan
as to which there has been a reduction in the amount of interest collectible
thereon for the related Collection Period as a result of the application of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended, the shortfall, if
any, equal to (i) one month's interest on the Principal Balance of such Home
Loan at the applicable Loan Rate, over (ii) the interest collectible on such
Home Loan during such Collection Period.
REMIC Ineligible Loan: A Home Loan will be a REMIC Ineligible Loan, if (a)
the value of the real property securing the Home Loan was not at least equal to
80% of the original principal balance of the Home Loan, calculated by
subtracting the principal balance of any home equity loans that are secured by
liens that are senior to the Home Loan and a proportionate amount of any home
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equity loans that are secured by a lien of equal priority as the Home Loan from
the Appraised Value of the property when the Home Loan was originated and (b)
substantially all of the proceeds of the Home Loans were not used to acquire,
improve or protect an interest in the real property securing the Home Loan.
REO Property: A Mortgaged Property that is acquired by the Trust in
foreclosure or by deed in lieu of foreclosure.
Repurchase Event: With respect to any Home Loan, either (i) a discovery
that, as of the Closing Date with respect to an Initial Home Loan or the related
Subsequent Transfer Date with respect to any Subsequent Home Loan, the related
Mortgage was not a valid lien on the related Mortgaged Property subject only to
(A) the lien of any prior mortgage indicated on the Home Loan Schedule, (B) the
lien of real property taxes and assessments not yet due and payable, (C)
covenants, conditions, and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage and such
other permissible title exceptions as are customarily accepted for similar loans
and (D) other matters to which like properties are commonly subject that do not
materially adversely affect the value, use, enjoyment or marketability of the
related Mortgaged Property or (ii) with respect to any Home Loan as to which the
Seller delivers an affidavit certifying that the original Mortgage Note has been
lost or destroyed, a subsequent default on such Home Loan if the enforcement
thereof or of the related Mortgage is materially and adversely affected by the
absence of such original Mortgage Note.
Repurchase Price: With respect to any Home Loan required to be repurchased
on any date pursuant to the Purchase Agreement or purchased by the Servicer
pursuant to the Servicing Agreement, an amount equal to the sum of (i) 100% of
the Principal Balance thereof (without reduction for any amounts charged off)
and (ii) unpaid accrued interest at the Loan Rate (or with respect to the last
day of the month in the month of repurchase, the Loan Rate will be the Loan Rate
in effect as of the second to last day in such month) on the outstanding
Principal Balance thereof from the Due Date to which interest was last paid by
the related Mortgagor to the first day of the month following the month of
purchase.
Required Overcollateralization Amount: As to any Payment Date prior to the
Stepdown Date, the Required Overcollateralization Amount will be 3.75% of the
initial Pool Balance. On or after the Stepdown Date, the Required
Overcollateralization Amount will be equal to the lesser of (a) the Required
Overcollateralization Amount as of the initial Payment Date and (b) 7.50% of the
current Pool Balance after applying payments received in the related Collection
Period (but not lower than approximately $784,016 (0.50% of the initial Pool
Balance)); provided, however, that any scheduled reduction to the Required
Overcollateralization Amount described above shall not be made as of any Payment
Date unless (i)(a) the aggregate cumulative Liquidation Loss Amounts on the Home
Loans prior to any such Payment Date occurring during the first year, the second
year or the third year (or any year thereafter) after the Stepdown Date are less
than 7.50%, 8.50% and 10.50%, respectively, of the Pool Balance as of the
Cut-Off Date or (b) the average Liquidation Loss Amount on the Home Loans for
the current and five previous Payment Dates is less than 60.00% of the amount
remaining in the Note Payment Account on such Payment Date following
distributions pursuant to clauses (i)-(v) of Section 3.05(a) of the Indenture
(other than clause (iii)) and (ii) there has been no draw on the Policy on such
Payment
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Date that remains unreimbursed. In addition, the Required Overcollateralization
Amount may be reduced with the prior written consent of the Credit Enhancer and
the Rating Agencies.
Representative: Bear, Xxxxxxx & Co. Inc., as representative of the
Underwriters.
Responsible Officer: With respect to the Indenture Trustee, any officer of
the Indenture Trustee with direct responsibility for the administration of the
Trust Agreement and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
Secretary of State: The Secretary of State of the State of Delaware.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Securities Balance: The Note Balance or Certificate Balance, as the context
may require.
Security: Any Certificate or a Note, as the context may require.
Securityholder: Any Noteholder or Certificateholder.
Seller: GMAC Mortgage Corporation, a Pennsylvania corporation, and its
successors and assigns.
Servicer: GMAC Mortgage Corporation, a Pennsylvania corporation, and its
successors and assigns.
Servicing Agreement: The servicing agreement dated as of March 30, 2000
among the Servicer, the Issuer and the Indenture Trustee.
Servicing Certificate: A certificate completed and executed by a Servicing
Officer on behalf of the Servicer in accordance with Section 4.01 of the
Servicing Agreement.
Servicing Default: The meaning specified in Section 7.01 of the Servicing
Agreement.
Servicing Fee: With respect to any Home Loan and any Collection Period, the
product of (i) the Servicing Fee Rate divided by 12 and (ii) the Pool Balance as
of the first day of such Collection Period.
Servicing Fee Rate: 0.50% per annum.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Home Loans whose name and specimen
signature appear on a list of servicing officers furnished to the Indenture
Trustee (with a copy to the Credit Enhancer) by the Servicer, as such list may
be amended from time to time.
Standard & Poor's: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. or its successor in interest.
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Stated Value: With respect to any Home Loan, the stated value of the
related Mortgaged Property determined in accordance with the Program Guide and
given by the related Mortgagor in his or her application.
Step-Up Date: The first Payment Date immediately following the Payment Date
on which the Servicer is permitted to purchase all of the Home Loans from the
Trust pursuant to Section 8.08 of the Servicing Agreement.
Stepdown Date: The later of (i) the Payment Date in April 2003 and (ii)
the Payment Date on which the Pool Balance (after applying payments received in
the related Collection Period) as of such Payment Date is less than 50% of the
initial Pool Balance.
Subsequent Cut-Off Date: With respect to any Subsequent Home Loan, the date
specified in the related Subsequent Transfer Agreement.
Subsequent Cut-Off Date Principal Balance: With respect to any Subsequent
Home Loan, the Principal Balance thereof as of the related Subsequent Cut-Off
Date.
Subsequent Home Loan: A Home Loan sold by the Seller to the Issuer pursuant
to Section 2.2 of the Purchase Agreement, such Home Loan being identified on the
Home Loan Schedule attached to the related Subsequent Transfer Agreement, as set
forth in such Subsequent Transfer Agreement.
Subsequent Transfer Agreement: Each Subsequent Transfer Agreement dated as
of a Subsequent Transfer Date executed by the Seller and the Issuer
substantially in the form of Exhibit 2 to the Purchase Agreement, by which the
related Subsequent Home Loans are sold to the Issuer.
Subsequent Transfer Date: With respect to each Subsequent Transfer
Agreement, the date on which the related Subsequent Home Loans are sold to the
Issuer.
Subservicer: Each Person that enters into a Subservicing Agreement as a
subservicer of Home Loans.
Subservicing Agreement: The written contract between the Servicer and any
Subservicer relating to servicing and administration of certain Home Loans as
provided in Section 3.01 of the Servicing Agreement.
Substitution Adjustment Amount: With respect to any Eligible Substitute
Loan and any Deleted Loan, the amount, if any, as determined by the Servicer, by
which the aggregate principal balance of all such Eligible Substitute Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Loans (after application of the principal portion of the Monthly
Payments due in the month of substitution that are to be distributed to the
Securityholders in the month of substitution).
Tax Matters Partner: GMACM, as initial Certificateholder.
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Telerate Screen Page 3750: The display page so designated on the Bridge
Telerate Capital Markets Report (or such other page as may replace page 3750 on
such service for the purpose of displaying London interbank offered rates of
major banks). If such rate does not appear on such page (or such other page as
may replace such page on such service, or if such service is no longer offered,
such other service for displaying LIBOR or comparable rates as may be selected
by the Indenture Trustee after consultation with the Servicer and the Credit
Enhancer), the rate shall be the Reference Bank Rate.
Transfer Date: As defined in Section 3.15(c) of the Servicing Agreement.
Transfer Notice Date: As defined in Section 3.15(c) of the Servicing
Agreement.
Treasury Regulations: Regulations, including proposed or temporary
Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust Agreement: The trust agreement dated as of March 30, 2000, between
the Owner Trustee and the Depositor.
Trust Estate: The meaning specified in the Granting Clause of the
Indenture.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939, as amended
from time to time, as in effect on any relevant date.
UCC: The Uniform Commercial Code, as amended from time to time, as in
effect in any specified jurisdiction.
Underwriters: Bear, Xxxxxxx & Co. Inc., Deutsche Banc Xxxx. Xxxxx and
PaineWebber Incorporated.
Underwriting Agreement: The underwriting agreement dated March 23, 2000,
between the Depositor and the Representative.
Uniform Single Attestation Program for Mortgage Bankers: The Uniform Single
Attestation Program for Mortgage Bankers, as published by the Mortgage Bankers
Association of America and effective with respect to fiscal periods ending on or
after December 15, 1995.
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