BISHOP’S GATE RESIDENTIAL MORTGAGE TRUST, as Issuer and THE BANK OF NEW YORK, as Indenture Trustee and Series 2001-2 Agent
Exhibit
10.5
XXXXXX’X
GATE RESIDENTIAL MORTGAGE TRUST,
as
Issuer
and
THE
BANK OF NEW YORK,
as
Indenture Trustee and Series 2001-2 Agent
SERIES
2001-2 SUPPLEMENT
dated
as of November 20, 2001
to
BASE
INDENTURE
dated
as of December 11, 1998
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TABLE
OF CONTENTS
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Page
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PRELIMINARY
STATEMENT
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1
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DESIGNATION
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1
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ARTICLE
I
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DEFINITIONS
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ARTICLE
II
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SERIES
2001-2 ALLOCATIONS
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Section
2.1
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Allocations
with Respect to the Series 2001-2 Notes.
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5
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Section
2.2
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Calculation
of Note Interest.
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5
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Section
2.3
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Payment
of Note Interest.
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6
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Section
2.4
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Payment
of Note Principal.
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7
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Section
2.5
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Series
2001-2 Distribution Account.
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7
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ARTICLE
III
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FORM
OF SERIES 2001-2 NOTES
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Section
3.1
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Restricted
Global Series 2001-2 Notes; Definitive Series 2001-2 Notes.
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9
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Section
3.2
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Temporary
Global Series 2001-2 Notes; Permanent Global Series 2001-2
Notes.
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9
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ARTICLE
IV
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GENERAL
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Section
4.1
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Optional
Repurchase.
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10
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Section
4.2
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Section
4.2 Information.
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11
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Section
4.3
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Section
4.3 Exhibits.
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11
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Section
4.4
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Ratification
of Base Indenture.
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11
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Section
4.5
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Counterparts.
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11
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Section
4.6
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Governing
Law.
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11
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Section
4.7
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Amendments.
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11
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Section
4.8
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Discharge
of Indenture.
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12
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Section
4.9
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Notice
to Rating Agencies.
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12
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Section
4.10
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Action
by Direction of Required Noteholders.
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12
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Section
4.11
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Credit
Amount Percentage; Minimum Credit Amount.
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12
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Section
4.12
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Series
Program Size.
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12
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Section
4.13
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Protections
Under Base Indenture.
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13
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Section
4.14
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Extension
of the Final Scheduled Distribution Date.
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13
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Section
4.15
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Perfection
Representations.
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13
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-i-
Exhibit
A-1-1: Form
of
Restricted Global Class A-1 Note
Exhibit
A-1-2: Form
of
Temporary Global Class A-1 Note
Exhibit
A-1-3: Form
of
Permanent Global Class A-1 Note
Exhibit
A-2-1: Form
of
Restricted Global Class A-2 Note
Exhibit
A-2-2: Form
of
Temporary Global Class A-2 Note
Exhibit
A-2-3: Form
of
Permanent Global Class A-2 Note
Exhibit
A-3-1: Form
of
Definitive Class A-1 Note
Exhibit
A-3-2: Form
of
Definitive Class A-2 Note
Schedule
A: Perfection
Representations
-ii-
SERIES
2001-2 SUPPLEMENT, dated as of November 20, 2001 (this “Supplement”)
between XXXXXX’X GATE RESIDENTIAL MORTGAGE TRUST, a business trust established
under the laws of Delaware (the “Issuer”),
THE
BANK OF NEW YORK, a New York banking corporation, as indenture trustee (together
with its successors in trust thereunder as provided in the Base Indenture
referred to below, the “Indenture
Trustee”),
and
THE BANK OF NEW YORK, as agent for the benefit of the Series 2001-2 Noteholders
(the “Series
2001-2 Agent”),
to
the Base Indenture, dated as of December 11, 1998, between the Issuer and the
Indenture Trustee (as amended, modified or supplemented from time to time,
exclusive of Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections
2.2
and
12.1
of the
Base Indenture provide, among other things, that the Issuer and the Indenture
Trustee may at
any time
and from time to time enter into a supplement to the Base Indenture for the
purpose of authorizing the issuance of one or more Series of Notes.
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There
is
hereby created a Series of Notes to be issued pursuant to the Base Indenture
and
this Supplement and such Series of Notes shall be designated as Variable Rate
Term Notes, Series 2001-2. The Series 2001-2 Notes shall be issued in two
classes: (i) the Class A-1 Notes, which shall be designated generally as the
Class A-1 Notes, in an original principal amount of $350,000,000, and (ii)
the
Class A-2 Notes, which shall be designated generally as the Class A-2 Notes,
in
an original principal amount of $400,000,000. The Class A-1 Notes and the Class
A-2 Notes are referred to collectively as the “Series
2001-2 Notes”.
The
proceeds from the sale of the Series 2001-2 Notes shall be deposited in the
Collection Account and shall be used by the Issuer to acquire eligible Mortgage
Loans from the Seller and to pay any amounts due and owing on the Issuer’s
outstanding obligations in accordance with the Program Documents.
ARTICLE
I
DEFINITIONS
(a) All
capitalized terms not otherwise defined herein are defined in the Definitions
List attached to the Base Indenture as Schedule
I
thereto.
All Article, Section or Subsection references herein shall refer to Articles,
Sections or Subsections of the Base Indenture, except as otherwise provided
herein. Unless otherwise stated herein, as the context otherwise requires or
if
such term is otherwise defined in the Base Indenture, each capitalized term
used
or defined herein shall relate only to the Series 2001-2 Notes and not to any
other Series of Notes issued by the Issuer.
(b) The
following words and phrases shall have the following meanings with respect
to
the Series 2001-2 Notes and the definitions of such terms are applicable to
the
singular as well as the plural form of such terms and to the masculine as well
as the feminine and neuter genders of such terms:
1
“Certificates”
shall
have the meaning specified in the Trust Agreement.
“Class”
means
a
class of the Series 2001-2 Notes, which may be the Class A-I Notes or the Class
A-2 Notes.
“Class
A-1 Final Distribution Date”
means
the Distribution Date occurring on November 20, 2004.
“Class
A-1 Monthly Interest”
means,
with respect to each Distribution Date, interest distributions with respect
to
the Class A-1 Notes equal to the product of (i) the outstanding principal amount
of the Class A-1 Notes on the preceding Distribution Date (after giving effect
to all distributions and allocations made on such preceding Distribution Date),
(ii) the Class A-1 Note Rate for the related Series 2001-2 Interest Period
and
(iii) the actual number of days in such Series 2001-2 Interest Period divided
by
360.
“Class
A-1 Noteholder”
means
the Person in whose name a Class A-1 Note_ is registered in the Note
Register.
“Class
A-1 Note Rate”
means,
with respect to each Series 2001-2 Interest Period, one-month LIBOR plus 0.26%
per annum.
“Class
A-I Notes”
means
any one of the Variable Rate Term Notes, Series 2001-2, Class A-1, executed
by
the Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A-1-1, Exhibit A-1-2 or Exhibit A-1-3.
Definitive Class A-1 Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of the Base
Indenture.
“Class
A-1 Shortfall”
has
the
meaning specified in Section 2.3, of this Supplement.
“Class
A-2 Final Distribution Date”
means
the Distribution Date occurring on November 20, 2008.
“Class
A-2 Monthly Interest”
means,
with respect to each Distribution Date, interest distributions with respect
to
the Class A-2 Notes equal to the product of (i) the outstanding principal amount
of the Class A-2 Notes on the preceding Distribution Date (after giving effect
to all distributions and allocations made on such preceding Distribution Date),
(ii) the Class A-2 Note Rate for the related Series 2001-2 Interest Period
and
(iii) the actual number of days in such Series 2001-2 Interest Period divided
by
360.
“Class
A-2 Noteholder”
means
the Person in whose name a Class A-2 Note is registered in the Note
Register.
“Class
A-2 Note Rate”
means,
with respect to each Series 2001-2 Interest Period, one-month LIBOR plus 0.37%
per annum.
2
“Class
A-2 Notes”
means
any one of the Variable Rate Term Notes, Series 2001-2, Class A-2, executed
by
the Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A-2-1, Exhibit A-2-2 or Exhibit A-2-3.
Definitive Class A-2 Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of the Base
Indenture.
“Class
A-2 Shortfall”
has
the
meaning specified in Section 2.3 of this Supplement.
“Clearstream
Banking”
means
Clearstream Banking, societe anonyme, a corporation organized under the laws
of
the Grand Duchy of Luxembourg.
“Collection
Account”
has
the
meaning specified in the Mortgage Loan Purchase and Servicing
Agreement.
“Credit
Amount Percentage”
has
the
meaning specified in Section 4.11 hereof.
“Definitive
Class A-1 Note”
shall
have the meaning specified in Section 3.1, hereof.
“Definitive
Class A-2 Note”
shall
have the meaning specified in Section 3.1 hereof.
“Final
Scheduled Distribution Date”
shall
have the meaning specified in the Trust Agreement.
“LIBOR”
has
the
meaning specified in Section 2.2 k of this Supplement.
“LIBOR
Determination Date”
has
the
meaning specified in Section 2.2(b) of this Supplement.
“Minimum
Credit Amount”
has
the
meaning specified in Section 4.11 hereof.
“Permanent
Global Class A-1 Note”
has
the
meaning specified in Section 3.2 of this Supplement.
“Permanent
Global Class A-2 Note”
has
the
meaning specified in Section 3.2 of this Supplement.
“Principal
Amount”
shall
have the meaning specified in the Trust Agreement.
“Reference
Banks”
has
the
meaning specified in Section 2.2(b) of this Supplement.
“Required
Noteholders”
means
Series 2001-2 Noteholders holding 50% or more of the principal amount of the
outstanding Series 2001-2 Notes.
“Restricted
Global Class A-1 Note”
has
the
meaning specified in Section 3.1 of this Supplement.
3
“Restricted
Global Class A-2 Note”
has
the
meaning specified in Section 3.1 of this Supplement.
“Series
2001-2 Agent”
has
the
meaning specified in the initial paragraph hereto. “Series 2001-2 Closing Date”
means November 20, 2001.
“Series
2001-2 Collateral”
means
the Collateral and the Series 2001-2 Distribution Account
Collateral.
“Series
2001-2 Distribution Account”
has
the
meaning specified in Section 2.5(a) of this Supplement.
“Series
2001-2 Distribution Account Collateral”
has
the
meaning specified in Section 2.5(d) of this Supplement.
“Series
2001-2 Final Distribution Date”
means
the Class A-1 Final Distribution Date or the Class A-2 Final Distribution Date,
as applicable.
“Series
2001-2 Interest Period”
means,
with respect to each Distribution Date, the period from and including the first
day of the month preceding the month of the Distribution Date (or in the case
of
the first Distribution Date, the Series 2001-2 Closing Date) to and including
the last day of the month preceding the month in which the Distribution Date
occurred or in the case of the Distribution Date which is also the Series 2001-2
Final Distribution Date to such Series 2001-2 Final Distribution
Date.
“Series
2001-2 Monthly Interest”
means,
with respect to any Series 2001-2 Interest Period, the sum of the Class A-1
Monthly Interest and the Class A-2 Monthly Interest for such Series 2001-2
Interest Period.
“Series
2001-2 Note Calculation Agent”
means
the Indenture Trustee.
“Series
2001-2 Noteholder”
means
any Person in whose name a Series 2001-2 Note is registered in the Note
Register.
“Series
2001-2 Note Rate”
means
the Class A-1 Note Rate or the Class A-2 Note Rate, as the context may
require.
“Series
2001-2 Notes”
means,
collectively, the Class A-1 Notes and the Class A-2 Notes.
“Series
2001-2 Shortfall”
means,
collectively, the Class A-1 Shortfall and the Class A-2 Shortfall.
“Series
Program Size”
has
the
meaning specified in Section 4.12 hereof. “Supplement” has the meaning set forth
in the preamble.
“Temporary
Global Class A-1 Note”
has
the
meaning specified in Section 3.2 of this Supplement.
4
“Temporary
Global Class A-2 Note”
has
the
meaning specified in Section 3.2 of this Supplement.
ARTICLE
II
SERIES
2001-2 ALLOCATIONS
With
respect to the Series 2001-2 Notes, the following shall apply:
Section
2.1 Allocations
with Respect to the Series 2001-2 Notes.
All
Collections allocable to the Series 2001-2 Notes shall be determined by the
Indenture Trustee and transferred by the Collateral Agent to the Series 2001-2
Distribution Account in accordance with the terms of Sections 2.3(a) and 2.4(a)
hereof and the Security Agreement.
Section
2.2 Calculation
of Note Interest.
(a) For
purposes of calculating the Series 2001-2 Note Rate, the Issuer hereby appoints
the Indenture Trustee as the Series 2001-2 Note Calculation Agent. The Series
2001-2 Note Calculation Agent may be removed by the Issuer at any time. If
the
Series 2001-2 Note Calculation Agent is unable or unwilling to act as such
or is
removed by the Issuer, or if the Series 2001-2 Note Calculation Agent fails
to
determine the Series 2001-2 Note Rate and the Series 2001-2 Monthly Interest
for
any Series 2001-2 Interest Period, the Issuer will promptly appoint as a
replacement Series 2001-2 Note Calculation Agent a leading bank which is engaged
in transactions in Eurodollar deposits in the international Eurodollar market.
The Series 2001-2 Note Calculation Agent may not resign its duties without
a
successor having been duly appointed.
(b) LIBOR
shall be determined by the Series 2001-2 Note Calculation Agent in accordance
with the following provisions:
(i) On
the
second Business Day prior to the commencement of the Series 2001-2 Interest
Period (each such day, a “LIBOR
Determination Date”),
“LIBOR”
shall
equal the rate, as obtained by the Series 2001-2 Note Calculation Agent, for
one-month Eurodollar deposits, which appears on Telerate Page 3750 (as defined
in the International Swaps and Derivatives Association, Inc. 1991 Interest
Rate
and Currency Exchange Definitions) or such other page as may replace Telerate
Page 3750, as it relates to U.S. Dollars, as of 11:00 a.m. (London time) on
such
LIBOR Determination Date.
(ii) If,
on
any LIBOR Determination Date, such rate does not appear on Telerate Page 3750,
the Series 2001-2 Note Calculation Agent shall determine the arithmetic mean
of
the offered quotations of the Reference Banks to leading banks in the London
interbank market for one-month Eurodollar deposits in an amount determined
by
the Series 2001-2 Note Calculation Agent by reference to requests for quotations
as of approximately 11:00 a.m. (London time) on the LIBOR Determination Date
made by the Series 2001-2 Note Calculation Agent to the Reference Banks. If,
on
any LIBOR Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal such arithmetic mean of such quotations. If,
on
any LIBOR Determination Date, only one or none of the Reference Banks provide
such quotations, LIBOR shall be deemed to be the arithmetic mean of the offered
quotations that leading banks in The City of New York selected by the Series
2001-2 Note Calculation Agent are quoting on the relevant LIBOR Determination
Date for one-month Eurodollar deposits in an amount determined by the Series
2001-2 Note Calculation Agent by reference to the principal London offices
of
leading banks in the London interbank market; provided,
however,
that if
the Series 2001-2 Note Calculation Agent is required but is unable to determine
a rate in accordance with at least one of the procedures provided above,
“LIBOR”
shall
be LIBOR as determined on the previous LIBOR Determination Date. As used herein,
“Reference
Banks”
means
four major banks in the London interbank market selected by the Series 2001-2
Note Calculation Agent.
5
As
soon
as possible after 11:00 a.m. (London time) on each LIBOR Determination Date,
but
in no event later than 11:00 a.m. (London time) on the Business Day immediately
following each LIBOR Determination Date, the Series 2001-2 Note Calculation
Agent will cause the applicable Series 2001-2 Note Rate for the next Series
2001-2 Interest Period and the applicable Series 2001-2 Monthly Interest for
such Series 2001-2 Interest Period payable in respect of the Series 2001-2
Notes
on the related Distribution Date to be given to the Issuer, the Indenture
Trustee and any paying agent. The Series 2001-2 Note Calculation Agent will
also
specify to the Issuer and the Indenture Trustee the quotations upon which the
applicable Series 2001-2 Note Rate is based, and in any event the Series 2001-2
Note Calculation Agent shall notify the Issuer before 5:00 p.m. (London time)
on
each LIBOR Determination Date that either: (i) it has determined or is in the
process of determining the applicable Series 2001-2 Note Rate and the applicable
Series 2001-2 Monthly Interest or (ii) it has not determined and is not in
the
process of determining the applicable Series 2001-2 Note Rate and the applicable
Series 2001-2 Monthly Interest, together with its reasons therefor. For the
sole
purpose of calculating the applicable Series 2001-2 Note Rate, “Business
Day”
shall
be any day on which dealings in deposits in U.S. dollars are transacted in
the
London interbank market.
Section
2.3 Payment
of Note Interest.
(a) On
each
Distribution Date, the Collateral Agent, acting in accordance with a certificate
or other statement of the Indenture Trustee based upon the Servicer Report,
shall withdraw the amounts required to be withdrawn from the Collateral Account
and deposit such amounts in the Series 2001-2 Distribution Account pursuant
to
this Section
2.3(a)
in
respect of all funds available for such Series 2001-2 Interest Period and
allocated to the holders of the Series 2001-2 Notes pursuant to Section 5.03(b)
of the Security Agreement.
On
each
Determination Date, the Indenture Trustee shall notify the Collateral Agent
and
the Servicer in writing as to the amount to be withdrawn and paid pursuant
to
Section
2.3(b)
of this
Supplement from the Collateral Account to the extent funds are anticipated
to be
available and allocable to the Series 2001-2 Notes in respect of (x) first,
an
amount equal to Series 2001-2 Monthly Interest for the related Series 2001-2
Interest Period and (y) second, an amount equal to the amount of any unpaid
Series 2001-2 Shortfall as of the preceding Distribution Date (together with
any
accrued interest on such Series 2001-2 Shortfall). If the amounts described
in
this Section
2.3(a)
are
insufficient to pay Series 2001-2 Monthly Interest on any Distribution Date,
payments of interest to the Series 2001-2 Noteholders will be reduced on a
pro rata
basis by
the amount of such deficiency. The aggregate amount, if any, of such deficiency
on any Distribution Date shall be referred to as the “Series
2001-2 Shortfall”
and
the
portion thereof allocable to each Class of Series 2001-2 Notes shall be referred
to as the “Class
A-1 Shortfall”
and
the
“Class
A-2 Shortfall”,
respectively. Interest shall accrue on the Shortfall for the Series 2001-2
Notes
at the Series 2001-2 Note Rate. On each Distribution Date, the Collateral Agent
shall withdraw the amounts described in this Section
2.3(a)
from the
Collateral Account and deposit such amounts in the Series 2001-2 Distribution
Account.
6
(b) On
each
Distribution Date, subject to Section
9.8
of the
Base Indenture, the Paying Agent shall, in accordance with Section
6.1
of the
Base Indenture, pay to the Series 2001-2 Noteholders from the Series 2001-2
Distribution Account the amount deposited in the Series 2001-2 Distribution
Account for the payment of interest pursuant to Section
2.3(a)
of this
Supplement.
Section
2.4 Payment
of Note Principal.
(a) The
principal in respect of the Series 2001-2 Notes will be repaid in full in a
single installment on the Series 2001-2 Final Distribution Date. On the
Determination Date prior to the Series 2001-2 Final Distribution Date, the
Indenture Trustee shall notify the Servicer in writing as to the amount of
principal due and payable in respect of the Series 2001-2 Notes. On the Series
2001-2 Final Distribution Date, in accordance with the related Servicer Report,
the Collateral Agent shall withdraw such amount of principal in respect of
the
Series 2001-2 Notes from the Collateral Account and deposit such amount in
the
Series 2001-2 Distribution Account, to be paid to the holders of the Series
2001-2 Notes. The entire principal amount of all Outstanding Series 2001-2
Notes
shall be due and payable on the Series 2001-2 Final Distribution
Date.
(b) On
the
Series 2001-2 Final Distribution Date, the Paying Agent shall, in accordance
with Section
6.1
of the
Base Indenture, pay pro rata
to each
Series 2001-2 Noteholder from the Series 2001-2 Distribution Account the amount
deposited therein pursuant to Section
2.4(a)
of this
Supplement.
Section
2.5 Series
2001-2 Distribution Account.
(a) Establishment
of Series 2001-2 Distribution Account.
The
Indenture Trustee shall establish and maintain in the name of the Series 2001-2
Agent for the benefit of the Series 2001-2 Noteholders, or cause to be
established and maintained, an account (the “Series
2001-2 Distribution Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2001-2 Noteholders. The Series 2001-2
Distribution Account shall be maintained (i) with a Qualified Institution,
or
(ii) as a segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as Indenture Trustee for funds deposited in the Series 2001-2 Distribution
Account; provided
that, if
at any time such Qualified Institution is no longer a Qualified Institution
or
the credit rating of any securities issued by such depositary institution or
trust company shall be reduced to below BBB- by S&P or Baa3 by Xxxxx’x, then
the Issuer shall, within 30 days of such reduction, establish a new Series
2001-2 Distribution Account with a new Qualified Institution. If the Series
2001-2 Distribution Account is not maintained in accordance with the previous
sentence, the Issuer shall establish a new Distribution Account, within ten
(10)
Business Days after obtaining knowledge of such fact, which complies with such
sentence, and shall instruct the Series 2001-2 Agent in writing to transfer
all
cash and investments from the non-qualifying Series 2001-2 Distribution Account
into the new Series 2001-2 Distribution Account. Initially, the Series 2001-2
Distribution Account will be established with the Indenture
Trustee.
7
(b) Administration
of the Series 2001-2 Distribution Account.
The
Indenture Trustee, at the written instruction of the Issuer, may instruct the
institution maintaining the Series 2001-2 Distribution Account to invest funds
on deposit in the Series 2001-2 Distribution Account from time to time in
Eligible Investments; provided,
however,
that
any such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Eligible Investment held in the Series 2001-2 Distribution Account is held
with the Paying Agent, then such investment may mature on such Distribution
Date
and such funds shall be available for withdrawal on or prior to such
Distribution Date. All such Eligible Investments will be credited to the Series
2001-2 Distribution Account.
(c) Earnings
from Series 2001-2 Distribution Account.
All
interest and earnings (net of losses and investment expenses) paid on funds
on
deposit in the Series 2001-2 Distribution Account shall be deemed to be on
deposit and available for distribution.
(d) Series
2001-2 Distribution Account Constitutes Additional Collateral for Series 2001-2
Notes.
In
order to secure and provide for the repayment and payment of the Issuer’s
obligations with respect to the Series 2001-2 Notes, the Issuer hereby grants
a
security interest in and assigns, pledges, grants, transfers and sets over
to
the Series 2001-2 Agent, for the benefit of the Series 2001-2 Noteholders,
all
of the Issuer’s right, title and interest in and to the following (whether now
or hereafter existing or acquired): (i) the Series 2001-2 Distribution Account,
including any security entitlement thereto; (ii) all funds on deposit therein
from time to time; (iii) all certificates and instruments, if any, representing
or evidencing any or all of the Series 2001-2 Distribution Account or the funds
on deposit therein from time to time; (iv) all investments made at any time
and
from time to time with monies in the Series 2001-2 Distribution Account, whether
constituting securities, instruments, general intangibles, investment property,
financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2001-2
Distribution Account, the funds on deposit therein from time to time or the
investments made with such funds; and (vi) all proceeds of any and all of the
foregoing, including, without limitation, cash (the items in the foregoing
clauses
(i)
through
(vi)
are
referred to, collectively, as the “Series
2001-2 Distribution Account Collateral”).
The
Series 2001-2 Agent shall possess all right, title and interest in all funds
on
deposit from time to time in the Series 2001-2 Distribution Account and in
all
proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect of the Series 2001-2 Distribution Account. The
Series 2001-2 Distribution Account Collateral shall be under the sole dominion
and control of the Series 2001-2 Agent for the benefit of the Series 2001-2
Noteholders.
8
ARTICLE
III
FORM
OF SERIES 2001-2 NOTES
Section
3.1 Restricted
Global Series 2001-2 Notes; Definitive Series 2001-2
Notes.
The
Series 2001-2 Notes to be issued in the United States to institutional
accredited investors (as defined in Regulation D under the Securities Act)
will
be issued in book-entry form of and represented by one or more permanent global
Notes in fully registered form without interest coupons (each, a “Restricted
Global Class A-1 Note”
or
a
“Restricted
Global Class A-2 Note”,
as the
case may be), substantially in the form set forth in Exhibits A-1-1 and A-2-1
hereto, with such legends as may be applicable thereto as set forth in the
Base
Indenture, and will be sold only in the United States to qualified institutional
buyers within the meaning of, and in reliance on, Rule 144A under the Securities
Act and shall be deposited on behalf of the purchasers of the Series 2001-2
Notes represented thereby, with a custodian for DTC, and registered in the
name
of Cede as DTC’s nominee, duly executed by the Issuer and authenticated by the
Indenture Trustee in the manner set forth in Section 2.4 of the Base
Indenture.
Series
2001-2 Notes issued in the United States to institutional accredited investors
within the meaning of Regulation D under the Securities Act in reliance on
an
exemption from the registration requirements of the Securities Act of the Base
Indenture will be issued pursuant to Section 2.18 in the form of definitive,
fully registered notes without interest coupons (each a “Definitive
Class A-1 Note”
or
a
“Definitive
Class A-2 Note”,
as the
case may be) substantially in the form set forth in Exhibits A-3-1 and A-3-2
hereto.
Section
3.2 Temporary
Global Series 2001-2 Notes; Permanent Global Series 2001-2
Notes.
The
Series 2001-2 Notes to be issued outside the United States will be issued and
sold in transactions outside the United States in reliance on Regulation S
under
the Securities Act, as provided in the applicable note purchase agreement,
and
shall initially be issued in the form of one or more temporary notes in
registered form without interest coupons (each, a “Temporary
Global Class A-1 Note”
or
a
“Temporary
Global Class A-2 Note”,
as the
case may be), substantially in the form set forth in Exhibits A-1-2 and A-2-2
hereto, which shall be deposited on behalf of the purchasers of the Series
2001-2 Notes represented thereby with a custodian for, and registered in the
name of a nominee of DTC, for the accounts of Xxxxxx Guaranty Trust Company
of
New York, Brussels office, as operator of Euroclear and for Clearstream Banking,
duly executed by the Issuer and authenticated by the Indenture Trustee in the
manner set forth in Section 2.4 of the Base Indenture. Interests in a Temporary
Global Class A-1 Note or a Temporary Global Class A-2 Note will be exchangeable,
in whole or in part, for interests in one or more permanent global notes in
registered form without interest coupons (each, a “Permanent
Global Class A-1 Note”
or
a
“Permanent
Global Class A-2 Note”,
as the
case may be), substantially in the form of Exhibits A-1-3 and A-2-3 hereto,
in
accordance with the provisions of such Temporary Global Class A-1 Note or
Temporary Global Class A-2 Note and the Base Indenture (as modified by this
Supplement). Interests in a Permanent Global Class A-1 Note or Permanent Global
Class A-2 Note will be exchangeable for Definitive Class A-1 Notes or Definitive
Class A-2 Notes, as the case may be, in accordance with the provisions of such
Permanent Global Class A-1 Note or Permanent Global Class A-2 Note and the
Base
Indenture (as modified by this Supplement).
9
ARTICLE
IV
GENERAL
Section
4.1 Optional
Repurchase.
(a) On
any
Distribution Date commencing with the Distribution Date occurring on November
20, 2002, the Issuer shall have the option to purchase the Class A-1 Notes,
in
whole but not in part (other than for the purpose of providing alternate
financing of Mortgage Loans), at a purchase price (determined after giving
effect to any payment of principal and interest on such Distribution Date)
equal
to the aggregate outstanding principal amount of the Class A-1 Notes on such
Distribution Date, plus accrued and unpaid interest on the unpaid aggregate
principal balance of the Class A-1 Notes (calculated at the Class A-1 Note
Rate)
through the day immediately prior to the date of such purchase plus the
aggregate amount of any Class A-1 Shortfalls payable in respect of the Class
A-1
Notes. The Issuer shall give the Indenture Trustee and the Noteholders not
more
than sixty (60) nor less than thirty (30) days’ prior written notice of the date
on which the Issuer intends to exercise such option to purchase. Not later
than
12:00 noon, New York City time, on such Distribution Date, with respect to
the
Class A-1 Notes outstanding, an amount of the purchase price equal to the
outstanding principal amount of the Class A-1 Notes on such Distribution Date
and the amount of accrued and unpaid interest with respect to the Class A-1
Notes and any applicable Class A-1 Shortfall will be deposited into the related
Distribution Account in immediately available funds. The funds deposited into
such Distribution Account or distributed to the Paying Agent will be passed
through in full to the Noteholders on such Distribution Date.
(b) On
any
Distribution Date commencing with the Distribution Date occurring on November
20, 2004, the Issuer shall have the option to purchase the Class A-2 Notes,
in
whole but not in part (other than for the purpose of providing alternate
financing of Mortgage Loans), at a purchase price (determined after giving
effect to any payment of principal and interest on such Distribution Date)
equal
to the aggregate outstanding principal amount of the Class A-2 Notes on such
Distribution Date, plus accrued and unpaid interest on the unpaid aggregate
principal balance of the Class A-2 Notes (calculated at the Class A-2 Note
Rate)
through the day immediately prior to the date of such purchase plus the
aggregate amount of any Class A-2 Shortfalls payable in respect of the Class
A-2
Notes. The Issuer shall give the Indenture Trustee and the Noteholders not
more
than sixty (60) nor less than thirty (30) days’ prior written notice of the date
on which the Issuer intends to exercise such option to purchase. Not later
than
12:00 noon, New York City time, on such Distribution Date, with respect to
the
Class A-2 Notes outstanding, an amount of the purchase price equal to the
outstanding principal amount of the Class A-2 Notes on such Distribution Date
and the amount of accrued and unpaid interest with respect to the Class A-2
Notes and any applicable Class A-2 Shortfall will be deposited into the related
Distribution Account in immediately available funds. The funds deposited into
such Distribution Account or distributed to the Paying Agent will be passed
through in full to the Noteholders on such Distribution Date.
10
(c) The
Series 2001-2 Notes shall be subject to repurchase, in whole but not in part,
by
the Issuer at its option in accordance with Section
6.3
of the
Base Indenture on any Distribution Date. The repurchase price for any Series
2001-2 Note shall equal the aggregate outstanding principal balance of such
Series 2001-2 Note (determined after giving effect to any payments of interest
on such Distribution Date), plus accrued and unpaid interest on such outstanding
principal balance, plus the amount of any Series 2001-2 Shortfall.
Section
4.2 Information.
The
Indenture Trustee, upon the written request of any Series 2001-2 Noteholder,
shall provide to such Series 2001-2 Noteholder, or its designated agent, copies
of all requested information previously furnished to the Indenture Trustee
or
the Issuer pursuant to the Program Documents, as such information relates to
the
Series 2001-2 Notes or the Series 2001-2 Collateral.
Section
4.3 Exhibits.
The
following exhibits attached hereto supplement the exhibits included in the
Indenture.
Exhibit
A-1-1: Form
of
Restricted Global Class A-1 Note
Exhibit
A-1-2: Form
of
Temporary Global Class A-1 Note
Exhibit
A-1-3: Form
of
Permanent Global Class A-1 Note
Exhibit
A-2-1: Form
of
Restricted Global Class A-2 Note
Exhibit
A-2-2: Form
of
Temporary Global Class A-2 Note
Exhibit
A-2-3: Form
of
Permanent Global Class A-2 Note
Exhibit
A-3-1 Form
of
Definitive Class A-1 Note
Exhibit
A-3-2 Form
of
Definitive Class A-2 Note
Section
4.4 Ratification
of Base Indenture.
As
supplemented by this Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supplemented by this Supplement
shall
be read, taken, and construed as one and the same instrument.
Section
4.5 Counterparts.
This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
Section
4.6 Governing
Law.
This
Supplement shall be construed in accordance with the law of the State of New
York (without giving effect to the provisions thereof regarding conflicts of
laws), and the obligations, rights and remedies of the parties hereto shall
be
determined in accordance with such law.
11
Section
4.7 Amendments.
This
Supplement may be modified or amended from time to time in accordance with
the
terms of the Base Indenture; provided,
however,
that
if, pursuant to the terms of the Base Indenture or this Supplement, the consent
of the Required Noteholders is required for an amendment or modification of
this
Supplement, such requirement shall be satisfied if such amendment or
modification is consented to by Noteholders representing more than 50% of the
aggregate outstanding principal amount of the Series 2001-2 Notes affected
thereby; provided,
further,
that if
the consent of the Required Noteholders is required for a proposed amendment
or
modification of this Supplement that (i) affects only the Class A-1 Notes (and
does not affect in any material respect the Class A-2 Notes, as evidenced by
an
Opinion of Counsel to such effect), then such requirement shall be satisfied
if
such amendment or modification is consented to by Class A-1 Noteholders
representing more than 50% of the aggregate outstanding principal amount of
the
Class A-1 Notes (without the necessity of obtaining the consent of the Required
Noteholders in respect of the Class A-2 Notes) or (ii) affects only the Class
A-2 Notes (and does not affect in any material respect the Class A-1 Notes,
as
evidenced by an Opinion of Counsel to such effect), then such requirement shall
be satisfied if such amendment or modification is consented to by Class A-2
Noteholders representing more than 50% of the aggregate outstanding principal
amount of the Class A-2 Notes (without the necessity of obtaining the consent
of
the Required Noteholders in respect of the Class A-1 Notes).
Section
4.8 Discharge
of Indenture.
Notwithstanding
anything to the contrary contained in the Base Indenture, no discharge of the
Indenture pursuant to Section
11.1(b)
of the
Base Indenture will be effective as to the Series 2001-2 Notes without the
consent of the Required Noteholders.
Section
4.9 Notice
to Rating Agencies.
The
Indenture Trustee shall provide to each Rating Agency a copy of each notice,
opinion of counsel, certificate or other item delivered to, or required to
be
provided by, the Indenture Trustee pursuant to this Supplement or any other
Program Document. The Trustee makes this covenant as a matter of courtesy and
accommodation only and shall not be liable to any Person for any failure to
comply therewith.
Section
4.10 Action
by Direction of Required Noteholders.
Subject
to Section
10.1
of the
Base Indenture, the Indenture Trustee agrees that, so long as no Event of
Default shall have occurred and be continuing with respect to any Series of
Notes other than the Series 2001-2 Notes, it shall not exercise any rights
or
remedies available to it as a result of the occurrence of an Event of Default
with respect to the Series 2001-2 Notes until the Indenture Trustee has received
the written direction of the Required Noteholders.
Section
4.11 Credit
Amount Percentage; Minimum Credit
Amount.
The
“Credit
Amount Percentage”
with
respect to the Series 2001-2 Notes shall be 4.4%. The “Minimum
Credit Amount”
with
respect to the Series 2001-2 Notes shall be 2.5%.
12
Section
4.12 Series
Program Size.
The
“Series
Program Size”
with
respect to the Series 2001-2 Notes shall be $784,520,000; provided,
however,
that
the Series Program Size shall in no event exceed the sum of the outstanding
principal amount of the Series 2001-2 Notes and the outstanding principal amount
of the Series 2001-2 Certificates; provided,
further,
that,
for purposes of calculating the “Credit Amount,” the Series Program Size shall
equal a fraction the numerator of which is the outstanding principal amount
of
the Series 2001-2 Notes and the denominator of which is one (1) less the Credit
Amount Percentage (expressed as a decimal).
Section
4.13 Protections
Under Base Indenture.
The
Bank
of New York, as Agent and Calculation Agent hereunder, shall have all of the
protections of the Indenture Trustee under Article X of the Base
Indenture.
Section
4.14 Extension
of the Final Scheduled Distribution Date.
Notwithstanding
anything in any other Program Document to the contrary, if payment of any
maturing Series of Certificates on its applicable Final Scheduled Distribution
Date would cause the aggregate Principal Amount of all outstanding Series of
Certificates plus the amount on deposit in the Reserve Fund to equal less than
the Required Enhancement Amount, the ‘Issuer shall be required to extend the
Final Scheduled Distribution Date of such maturing Series of Certificates
pursuant to Section 3.4(b) of the Trust Agreement.
Section
4.15 Perfection
Representations.
The
Issuer hereby makes the representations and warranties set forth in Schedule
A
hereto.
13
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
|
XXXXXX’X
GATE RESIDENTIAL MORTGAGE TRUST, as Issuer
|
||
|
By:
CENDANT MORTGAGE CORPORATION,
as
Administrator
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
THE
BANK OF NEW YORK,
as
Indenture Trustee
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
THE
BANK OF NEW YORK,
as
Series 2001-2 Agent
|
||
|
By:
|
||
|
Name:
Title:
|
||
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
|
XXXXXX’X
GATE RESIDENTIAL MORTGAGE TRUST, as Issuer
|
||
|
By:
CENDANT MORTGAGE CORPORATION,
as
Administrator
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
THE
BANK OF NEW YORK,
as
Indenture Trustee
|
||
|
By:
|
||
|
Name:
Xxxxx X. Xxxxxxxx
Title:
Assistant Vice President
|
||
|
THE
BANK OF NEW YORK.
as
Series 2001-2 Agent
|
||
|
By:
|
||
|
Name:
Xxxxx X. Xxxxxxxx
Title:
Assistant Vice President
|
||
Exhibit
A-1-1
Form
of Restricted Global Class A-1 Note
A-1-1
Exhibit
A-1-2
Form
of Temporary Global Class A-1 Note
A-1-2
Exhibit
A-1-3
Form
of Permanent Global Class A-1 Note
A-1-3
Exhibit
A-2-1
Form
of Restricted Global Class A-2 Note
A-2-1
Exhibit
A-2-2
Form
of Temporary Global Class A-2 Note
A-2-2
Exhibit
A-2-3
Form
of Permanent Global Class A-2 Note
A-2-3
Exhibit
A-3-1
Form
of Definitive Class A-1 Note
A-3-1
Exhibit
A-3-2
Form
of Definitive Class A-2 Note
A-3-2
Schedule
A
Perfection
Representations
Representations
and Warranties Regarding Collateral.
(a)
The
Security Agreement creates a valid and continuing security interest (as defined
in the applicable UCC) in the Collateral in favor of the Collateral Agent,
which
security interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from the Issuer.
(b)
The
Issuer owns and has good and marketable title to the Collateral free and clear
of any lien, claim or encumbrance of any Person other than the security interest
in favor of the Collateral Agent under the Security Agreement.
(c)
The
Issuer has caused or will have caused, within ten days of the Series 2001-2
Closing Date, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order
to
perfect the security interest in the Collateral granted to the Collateral Agent
under the Security Agreement.
(d)
Other
than the security interest granted to the Collateral Agent pursuant to the
Security Agreement, the Issuer has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Collateral, other than
in
accordance with the Mortgage Loan Purchase and Servicing Agreement. The Issuer
has not authorized the filing of and is not aware of any financing statements
against the Issuer that include a description of collateral covering the
Collateral other than any financing statement relating to the security interest
granted to the Collateral Agent under the Security Agreement or that has been
terminated. The Issuer is not aware of any judgment or tax lien filings against
the Issuer.
(e)
All
original executed copies of each mortgage note, promissory note or other writing
constituting an “instrument” (as defined in the applicable UCC) that constitute
or evidence the Collateral have been or, in the case of Wet Funded Loans (as
defined in the Mortgage Loan Purchase and Servicing Agreement), will be
delivered to the Custodian. The Issuer has received written acknowledgment
from
the Custodian that the Custodian is acting solely as agent of the Collateral
Agent.
(f)
None
of
the “instruments” (as defined in the applicable UCC) that constitute or evidence
the Collateral has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Collateral
Agent (and other than to the Issuer or its predecessors in title).
(g)
The
Issuer has received all consents and approvals required by the terms of the
Collateral to the transfer to the Collateral Agent of its interest and rights
in
the Collateral under the Security Agreement.
(h)
The
Collection Account, the Collateral Account and the Reserve Fund are not in
the
name of any Person other than the Issuer or the Collateral Agent for benefit
of
Secured Parties. The Issuer has not consented to the securities intermediary
of
any of the Collection Account, the Collateral Account or the Reserve Fund to
comply with entitlement orders or other instructions of any Person other than
the Collateral Agent.
SCH
A-1
(i)
All
of
the Collateral consisting of “security entitlements” (within the meaning of the
applicable UCC) has been credited to the Collection Account, the Collateral
Account or the Reserve Fund. The securities intermediary for each of the
Collection Account, the Collateral Account and the Reserve Fund has agreed
to
treat all assets credited to the Collection Account, the Collateral Account
or
the Reserve Fund as “financial assets” (within the meaning of the applicable
UCC).
(j)
The
Issuer has delivered to the Collateral Agent a fully executed agreement pursuant
to which the securities intermediary has agreed to comply with all instructions
originated by the Collateral Agent relating to the Collection Account, the
Collateral Account and the Reserve Fund without further consent by the
Issuer.
(k)
Each
of
the Collection Account, the Collateral Account and the Reserve Fund is a
“securities account” (within the meaning of the applicable UCC).
(l)
Other
than the Collection Account, the Collateral Account and the Reserve Fund, the
Collateral consists of (i) mortgage notes, promissory notes or other writings
constituting “instruments” (within the meaning of the applicable UCC), (ii)
“accounts” within the meaning of the applicable UCC) or (iii) “general
intangibles” (within the meaning of the applicable UCC).
(m)
Each
of
the foregoing representations shall, as applicable, be deemed repeated each
time
new assets become part of the Collateral.
(n)
The
security interest of the Collateral Agent in the Collateral shall, until payment
in full of the indebtedness secured under the Security Agreement and termination
of the Security Agreement, be a first-priority perfected security
interest.
(o)
The
foregoing representations shall survive termination of this
Indenture.
(p)
The
foregoing representations may not be waived, amended or modified without the
prior written consent of S&P.
SCH
A-2
