GMACM HOME LOAN TRUST 2001-CL1,
Issuer,
and
BANK ONE, NATIONAL ASSOCIATION,
Indenture Trustee
------------------------
INDENTURE
------------------------
Dated as of November 29, 2001
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 Trustee.................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 Intentionally Omitted.................................................15
Section 3.29 Replacement Enhancement...............................................16
Section 3.30 Additional Representations of the Issuer..............................17
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 Intentionally Omitted.................................................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
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 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
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 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
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
v
This Indenture, dated as of November 29, 2001, is between GMACM Home
Loan Trust 2001-CL1, a Delaware business trust, as issuer (the "Issuer"), and
Bank One, National Association, a national banking association, 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
2001-CL1 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, all of the Issuer's right, title
and interest in and to all accounts, chattel paper, general intangibles,
contract rights, payment intangibles, 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 or investment
property on deposit or credited thereto from time to time and all proceeds
thereof; (c) the Capitalized Interest Account, and all funds or investment
property on deposit or credited thereto from time to time (other than any income
thereon), and the Pre-Funding Account, and all funds or investment property on
deposit or credited thereto from time to time; and (d) 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 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.
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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 terms not otherwise defined herein and defined in the UCC have the
meanings 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, 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
$152,239,000. The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class M-1
Notes, Class M-2 Notes and Class B Notes shall have initial principal amounts of
$58,472,000, $16,387,000, $40,306,000, $15,776,000, $11,832,000 and $9,466,000,
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 Class A Notes and the Class M-1 Notes
shall be issuable in minimum denominations of $25,000 and integral multiples of
$1,000 in excess thereof. The Class M-2 Notes and the Class B Notes shall be
issuable in minimum denominations of $250,000 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 Chicago, Illinois, 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:
4
(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 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 other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
5
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 optional advances of delinquent
principal and/or interest on the Home Loans made by the Servicer in respect of
the related Collection Period and on the Final Payment Date, and any amounts
transferred to the Note Payment Account from the Pre-Funding Account and/or the
Capitalized Interest Account pursuant to Sections 3.17 and 3.18 of the Servicing
Agreement, is as follows:
(i) for payment by the Paying Agent to the Noteholders of each Class of
Class A Notes, on a pro rata basis, in accordance with the amount of
interest accrued thereon, 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 of the Class M-1
Notes, interest for the related Interest Period at the related Note Rate
on the related Note Balance immediately prior to such Payment Date;
(iii) for payment by the Paying Agent to the Noteholders of the Class M-2
Notes, interest for the related Interest Period at the related Note Rate
on the related Note Balance immediately prior to such Payment Date;
(iv) for payment by the Paying Agent to the Noteholders of the Class B Notes,
interest for the related Interest Period at the related Note Rate on the
related Note Balance immediately prior to such Payment Date;
(v) 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 allocated as follows:
6
(i) first, the amount necessary to reduce the
aggregate Note Balance of the Class A Notes to the Class A
Optimal Principal Balance, to the Class A-1 Notes, Class
A-2 Notes and Class A-3 Notes, in that order, in each case
until the respective Note Balance of that Class of Notes
is reduced to zero;
(ii) second, to the Class M-1 Notes, the amount
necessary to reduce the Note Balance of the Class M-1
Notes to the Class M-1 Optimal Principal Balance;
(iii) third, to the Class M-2 Notes, the amount
necessary to reduce the Note Balance of the Class M-2
Notes to the Class M-2 Optimal Principal Balance; and
(iv) fourth, to the Class B Notes, the amount
necessary to reduce the Note Balance of the Class B Notes
to the Class B Optimal Principal Balance;
(vi) for payment by the Paying Agent to the Noteholders of the Class A-1 Notes,
Class A-2 Notes and Class A-3 Notes, in that order, in each case until the
respective Note Balance of that Class of Notes is reduced to zero, until
the aggregate Note Balance of the Class A Notes has been reduced to the
Class A Optimal Principal Balance, an amount equal to any Liquidation Loss
Amounts incurred on the Home Loans during the related Collection Period
and, without regard to the Class A Optional Principal Balance, any
Liquidation Loss Amounts allocated to the Class A Notes on any previous
Payment Date and not previously paid plus interest on any previously unpaid
amount at the related Note Rate for each such Class;
(vii) for payment by the Paying Agent to the Noteholders of the Class M-1
Notes, until the Note Balance of the Class M-1 Notes has been reduced to
the Class M-1 Optimal Principal Balance, an amount equal to any
Liquidation Loss Amounts incurred on the Home Loans during the related
Collection Period and not distributed to the Holders of the Class A
Notes under clause (vi) above;
(viii) for payment by the Paying Agent to the Noteholders of the Class M-2
Notes, until the Note Balance of the Class M-2 Notes has been reduced to
the Class M-2 Optimal Principal Balance, an amount equal to any
Liquidation Loss Amounts incurred on the Home Loans during the related
Collection Period and not distributed to the Holders of the Class A
Notes under clause (vi) above or the Class M-1 Notes under clause (vii)
above;
(ix) for payment by the Paying Agent to the Noteholders of the Class B Notes,
until the Note Balance of the Class B Notes has been reduced to the
Class B Optimal Principal Balance, an amount equal to any Liquidation
Loss Amounts incurred on the Home Loans during the related Collection
Period and not distributed to the Holders of the Class A Notes under
clause (vi) above, the Class M Notes under clause (vii) above or the
Class M-2 Notes under clause (viii) above;
7
(x) to the Distribution Account, for distribution to the holders of the
Certificates by the Certificate Paying Agent through and including the
Payment Date in February 2002, an amount equal to 100% of any remaining
available funds;
(xi) for payment by the Paying Agent to the Class A Noteholders, the
Overcollateralization Increase Amount, if any, until the aggregate Note
Balance of the Class A Notes has been reduced to the Class A Optimal
Principal Balance, to the Class A-1 Notes, Class A-2 Notes and Class A-3
Notes, in that order, in each case until the respective Note Balances of
that Class of Notes is reduced to zero;
(xii) for payment by the Paying Agent to the Class M-1 Noteholders, the
Overcollateralization Increase Amount, if any, to the extent not
distributed to the Class A Notes pursuant to clause (xi) above, until
the Note Balance of the Class M-1 Notes has been reduced to the Class M
Optimal Principal Balance;
(xiii) for payment by the Paying Agent to the Class M-2 Noteholders, the
Overcollateralization Increase Amount, if any, to the extent not
distributed to the Class A Notes pursuant to clause (xi) above or the
Class M-1 Notes pursuant to clause (xii) above, until the Note Balance
of the Class M-1 Notes has been reduced to the Class M-2 Optimal
Principal Balance;
(xiv) for payment by the Paying Agent to the Class B Noteholders, the
Overcollateralization Increase Amount, if any, to the extent not
distributed to the Class A Notes pursuant to clause (xi) above, the
Class M-1 Notes pursuant to clause (xii) above or the Class M-2 Notes
pursuant to clause (xiii) above, until the Note Balance of the Class B
Notes has been reduced to the Class B Optimal Principal Balance;
(xv) for payment by the Paying Agent to the Class M-1 Noteholders, any
Liquidation Loss Amounts allocated to the Class M-1 Notes on any
previous Payment Dates and not previously paid plus interest thereon at
the related Note Rate;
(xvi) for payment by the Paying Agent to the Class M-2 Noteholders, any
Liquidation Loss Amounts allocated to the Class M-2 Notes on any
previous Payment Dates and not previously paid plus interest thereon at
the related Note Rate;
(xvii) for payment by the Paying Agent to the Class B Noteholders, any
Liquidation Loss Amounts allocated to the Class B Notes on any previous
Payment Dates and not previously paid plus interest thereon at the
related Note Rate;
(xviii) to the Indenture Trustee, any amounts owing to the Indenture Trustee
pursuant to Section 6.07 to the extent remaining unpaid; and
8
(xix)any remaining amount, to the Distribution Account, for distribution to the
Certificateholders by the Certificate Paying Agent;
After the Note Balance of any Class has been reduced to zero, that Class will no
longer be entitled to reimbursement for Liquidation Loss Amounts allocated
thereto.
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 of each Class in respect of interest on the
Notes shall be paid in accordance with the priorities set forth above and among
the Noteholders of a Class in accordance with their respective Percentage
Interests. 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, Class M Notes and Class B 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 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.
Accordingly, notwithstanding the order of priority set forth in Section
3.05(a)(i) through (xvii) (other than clause (x)), on the Final Payment Date or
on the Payment Date on which amounts paid by the Servicer in connection with the
purchase of the Home Loans pursuant to Section 8.08 of the Servicing Agreement
are to be distributed, all amounts available to be distributed to Noteholders
and Certificateholders will be applied first to pay accrued and unpaid interest
on the Class A Notes and then to pay principal in reduction of the Note Balance
of the Class A Notes, in each case on a pro rata basis in accordance with the
amount of accrued and unpaid interest thereon and their respective Note
Balances, respectively, until such Note Balances have been reduced to zero, and
then to the Class M-1, Class M-2 and Class B Notes, in that order, in each case
first to pay accrued and unpaid interest thereon and then to pay principal in
reduction of the Note Balance of such Class, until its respective Note Balance
has been reduced to zero, and then shall be distributed in accordance with
Sections 3.05(a)(x), (xviii) and (xix). All principal payments on the Notes of
each Class shall be made in accordance with the priorities set forth in
paragraph (a) above and this paragraph (b) 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
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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 amount of any Liquidation Loss Amounts with
respect to the related Collection Period that were not distributed pursuant to
Sections 3.05(a)(vi), (vii), (viii) or (ix), will be applied as follows: first,
to reduce any Overcollateralization Amount (after allocation of Principal
Collections and Interest Collections on the Home Loans for such Payment Date)
until such amount has been reduced to zero; second, to reduce the Note Balance
of the Class B Notes, until the Note Balance thereof has been reduced to zero;
third, to reduce the Note Balance of the Class M-2 Notes, until the Note Balance
thereof has been reduced to zero; fourth, to reduce the Note Balance of the
Class M-1 Notes, until the Note Balance thereof has been reduced to zero; and
fifth, to reduce the Note Balances of the Class A Notes until the aggregate Note
Balance of the Class A Notes has been reduced to zero. Liquidation Loss Amounts
allocated to the Class A Notes will be allocated among the Class A Notes on a
pro rata basis in accordance with their respective Note Balances immediately
prior to such Payment Date.
Section 3.06 Protection of Trust Estate.
(a) The Issuer shall from time to time execute or authenticate 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
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.
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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 2002, 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.
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, 2001), 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 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.
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Section 3.11 Recordation of Assignments. The Issuer shall enforce the
obligation, if any, of the Sellers 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 GMACM in Section 3.1(a) and Section
3.1(b) of the Purchase Agreement and the benefit of the representations and
warranties made by WG Trust in Section 3.1(c) of the Purchase Agreement,
concerning the Home Loans and the right to enforce the remedies against GMACM or
WG Trust provided in such Section 3.1(d) 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 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 delivered 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 title to any of
the Home Loans until such time as the remaining Trust Estate may be released
pursuant to Section 8.08(b). The Indenture Trustee's holding of such 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 9-313 or 9-314 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 9-313 or 9-314 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 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.
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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) each Rating Agency shall have notified the Issuer that such transaction
will not cause a Rating Event;
(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, 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
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
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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) each Rating Agency shall have notified the Issuer that such transaction
will not cause a Rating Event;
(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 of the
Issuer with respect to the Notes immediately upon the delivery of written notice
to the Indenture Trustee of such conveyance or transfer.
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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 Sellers 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 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.
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Section 3.24 Notice of Events of Default. The Issuer shall give the Indenture
Trustee 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 make available to the
Depositor, the Owner Trustee, each Rating Agency, each Noteholder and each
Certificateholder, 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 other parties
to this Indenture via the Indenture Trustee's internet website. The Indenture
Trustee's internet website shall initially be located at "xxx.xxx.xxxxxxx.xxx".
Assistance in using the website can be obtained by calling the Indenture
Trustee's customer service desk at (000) 000-0000. Parties that are unable to
use the above website are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Indenture Trustee shall 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 by means of
the Indenture Trustee's online service.
Section 3.28 Intentionally Omitted.
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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
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a result thereof; 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. It shall be a
condition to procurement of any such additional credit enhancement that there be
delivered to the Indenture (a) an Opinion of Counsel, acceptable in form to the
Indenture Trustee, from counsel to the provider of such additional credit
enhancement with respect to the enforceability thereof and such other matters as
the Indenture Trustee 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 Additional Representations of the Issuer.
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The Issuer hereby represents and warrants to the Indenture Trustee that
as of the Closing Date:
(a) This Indenture creates a valid and continuing security interest (as
defined in the applicable UCC) in the Mortgage Notes in favor of the
Indenture Trustee, which security interest is prior to all other
Liens (except as expressly permitted otherwise in this Indenture),
and is enforceable as such as against creditors of and purchasers
from the Issuer.
(b) The Mortgage Notes constitute "instruments" within the meaning of the
applicable UCC.
(c) The Issuer owns and has good and marketable title to the Mortgage Notes
free and clear of any Lien of any Person.
(d) The original executed copy of each Mortgage Note (except for any
Mortgage Note with respect to which a Lost Note Affidavit has been
delivered to the Custodian) has been delivered to the Custodian.
(e) The Issuer has received a written acknowledgment from the Custodian
that the Custodian is acting solely as agent of the Indenture
Trustee for the benefit of the Noteholders.
(f) Other than the security interest granted to the Indenture Trustee pursuant
to this Indenture, the Issuer has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Mortgage Notes. 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 Mortgage Notes other than any financing statement relating to
the security interest granted to the Indenture Trustee hereunder or any
security interest that has been terminated. The Issuer is not aware of any
judgment or tax lien filings against the Issuer.
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(g) None of the Mortgage Notes has any marks or notations indicating that they
have been pledged, assigned or otherwise conveyed to any Person other than
the Indenture Trustee, except for (i) any endorsements that are part of a
complete chain of endorsements from the originator of the Mortgage Note to
the Indenture Trustee, and (ii) any marks or notations pertaining to Liens
that have been terminated or released.
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, for the
Class A Notes and the Class M-1 Notes, and minimum initial Note Balances of
$250,000 and integral multiples of $1,000 in excess thereof, for the Class M-2
Notes and Class B Notes.
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.
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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.
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.
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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, 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.
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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.
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.
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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.
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
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(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 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
by the Issuer; and
(4) the Issuer has delivered to the Indenture Trustee 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.
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Section 4.12 Intentionally Omitted.
---------------------
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.
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, 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 Noteholders of Notes representing not
less than a majority of the aggregate Note Balance of the Notes, may declare the
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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 Noteholders of Notes representing a
majority of the aggregate Note Balance of the Notes, 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:
(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
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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
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
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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
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, may 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, enforce any judgment obtained, and collect from the Issuer
and any other obligor on the Notes monies adjudged due;
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(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
(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 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 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 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. Notwithstanding any sale of the Home Loans pursuant to this
Section 5.04(a), the Indenture Trustee shall, for so long as any principal or
accrued interest on the Notes remains unpaid, continue to act as Indenture
Trustee hereunder.
(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 of the Class A Notes, for amounts due
and unpaid on the related Class A Notes for interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Class A Notes for interest from
amounts available in the Trust Estate for such Noteholders;
THIRD: to the Noteholders of the Class A Notes, for amounts due
and unpaid on the related Class A Notes for principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Class A Notes for principal, from
amounts available in the Trust Estate for such Noteholders, until
the respective Note Balances of such Class A Notes have been
reduced to zero;
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FOURTH:to the Noteholders of the Class M Notes, for amounts due
and unpaid on the Class M Notes for interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Class M Notes for interest from amounts
available in the Trust Estate for such Noteholders;
FIFTH: to the Noteholders of the Class M Notes, for amounts due
and unpaid on the Class M Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Class M Notes for principal, from amounts
available in the Trust Estate for such Noteholders, until the
respective Note Balances of such Class M Notes have been reduced
to zero;
SIXTH: to the Noteholders of the Class B Notes, for amounts due
and unpaid on the Class B Notes for interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Class B Notes for interest from amounts
available in the Trust Estate for such Noteholders;
SEVENTH: to the Noteholders of the Class B Notes, for amounts due
and unpaid on the Class B Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Class B Notes for principal, from amounts
available in the Trust Estate for such Noteholders, until the
respective Note Balances of such Class B Notes have been reduced
to zero;
EIGHTH:to the Certificate Paying Agent for amounts due under
Article VIII of the Trust Agreement; and
NINTH: 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, 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, and the Indenture
Trustee shall take such desire into account when determining whether or not to
30
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.
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.
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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 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 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 as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Noteholders of a majority of the
aggregate Note Balance of Notes shall have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee, provided that:
(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 Noteholders of
Notes representing not less than 100% of the aggregate Note Balance of the
Notes;
(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
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(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 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
Noteholders of not less than a majority of the aggregate Note Balance of the
Notes may waive any past Event of Default and its consequences, except an Event
of Default (a) with respect to payment of principal of or interest on any of the
Notes or (b) in respect of a covenant or provision hereof 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.
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.
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Section 5.15 Sale of Trust Estate.
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(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 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 direct the Indenture Trustee to make, such
Sale,
(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, 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 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 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) herein.
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(d) In connection with a Sale of all or any portion of the Trust Estate:
(i) any Noteholder may bid for and purchase the property offered for sale, and
upon compliance with the terms of sale may hold, retain and possess and
dispose of such property, without further accountability, and may, in
paying the purchase money therefor, deliver any Notes or claims for
interest thereon in lieu of cash up to the amount which shall, upon
distribution of the net proceeds of such sale, be payable thereon, and such
Notes, in case the amounts so payable thereon shall be less than the amount
due thereon, shall be returned to the 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 as a result of such Sale in accordance with Section
5.04(b) on the Payment Date next succeeding the date of such Sale and (B)
the expenses of the Sale and of any Proceedings in connection therewith
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).
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Section 5.17 Performance and Enforcement of Certain Obligations.
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(a) Promptly following a written request from the Indenture Trustee, the Issuer,
in its capacity as owner of the Home Loans, shall 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 Sellers 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
Sellers or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Sellers or the Servicer of each of their obligations under the Purchase
Agreement and the Servicing Agreement.
(b) If an Event of Default shall have occurred and be continuing, the Indenture
Trustee, as pledgee of the Home Loans 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 Sellers 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 Sellers 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.
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(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
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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;
(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.
(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 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.
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(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.
(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.
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(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 Noteholders 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, pursuant to the provisions of this
Agreement, unless the Noteholders 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.
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Section 6.05 Notice of Event of Default. 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
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.
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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. The Noteholders of a majority of the aggregate
Note Balance of the Notes may remove the Indenture Trustee by so notifying the
Indenture Trustee (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;
(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. 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.
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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 Xxxxxx. 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
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;
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(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 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.
Within 90 days after ascertaining the occurrence of an Event of Default
which shall not have been cured or waived, unless authorized by the Commission,
the Indenture Trustee shall resign with respect to the Class A Notes, the Class
M Notes and/or the Class B Notes in accordance with Section 6.08 of this
Indenture, and the Issuer shall appoint a successor Indenture Trustee for one,
two or all of such Classes, as applicable, so that there will be separate
Indenture Trustees for the Class A Notes, the Class M Notes and the Class B
Notes. In the event the Indenture Trustee fails to comply with the terms of the
preceding sentence, the Indenture Trustee shall comply with clauses (ii) and
(iii) of TIA ss. 310(b).
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In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11, the
Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the Class to which the appointment of such
successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is
not retiring with respect to all Classes of Notes, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of each Class as to which the retiring Indenture Trustee is not retiring
shall continue to be vested in the Indenture Trustee, and (iii) shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Indenture Trustees co-trustees of
the same trust and that each such Indenture Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Indenture Trustee; and upon the removal of the
retiring Indenture Trustee shall become effective to the extent provided
therein.
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 as a national banking association 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
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.
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(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;
(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 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.
----------------------------------------------------------
(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.
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(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 TIAss. 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, 2002, the Indenture
Trustee shall make available to each Noteholder as required by TIA ss. 313(c) 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).
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.
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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 and the Certificate Paying Agent, on behalf of the
Certificateholders, 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 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
any investment in the institution with which the Note Payment Account is
maintained may mature on such Payment Date) and shall not be sold or disposed of
prior to the maturity. In addition, such Permitted Investments shall not be
purchased at a price in excess of par. 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.
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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 and (ii) all sums due the Indenture Trustee pursuant to this
Indenture have been paid, release any remaining portion of the Trust Estate that
secured the Notes from the lien of this Indenture.
(c) The Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.05 only upon receipt of an Issuer Request accompanied
by an Officers' Certificate.
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.
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(a) Without the consent of the Noteholders of any Notes but with prior notice to
the Rating Agencies, 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 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 any error or 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 (as evidenced by an Opinion of Counsel);
(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.
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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, 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 (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 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
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;
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(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
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
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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.
-----------------------------------------
(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 (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;
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(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 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
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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, 2001, 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.
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 either Seller or
the Issuer, stating that the information with respect to such factual matters is
in the possession of either 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.
54
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.
(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 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 Bank
One, National Association, 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx
00000-0126, Attention: GMACM 2001-CL1. The Indenture Trustee shall promptly
transmit any notice received by it from the Noteholders to the Issuer, or
55
(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 2001-CL1, 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.
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; (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 and (iii) in the case of Fitch, at the following
address: Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Group, 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
(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.
56
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.
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, 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.
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.
57
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
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,
58
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.
59
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 2001-CL1, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
BANK ONE, NATIONAL ASSOCIATION, as Indenture
Trustee
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION, xxxxxx accepts the appointment as Paying Agent
pursuant to Section 3.03 hereof and as Note Registrar pursuant to Section 4.02
hereof.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
Signatures and Seals
60
STATE OF Delaware )
) ss.:
COUNTY OF New Castle )
On this ___ day of November 2001, before me personally appeared Xxxxxxxx
X. Xxxxx, to me known, who being by me duly sworn, did depose and say, that
he/she resides at Wilm., DE, that he/she is the Senior 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/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Notary Public
Acknowledgements
61
STATE OF ___Illinois____ __ )
) ss.:
COUNTY OF __Cook ______ )
On this 29th day of November, 2001, before me personally appeared Xxxxx
Xxxxxxxxxx, to me known, who being by me duly sworn, did depose and say, that
he/she resides at _____________; that he/she is the Vice President of Bank One,
National Association, 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/ Xxxxxx Xxxxx Xxxxxx
Notary Public
NOTORIAL SEAL
62
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 SELLERS, 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 2001-CL1
GMACM Home Loan-Backed Term Note, Class A-1
Registered Initial Note Balance:
$58,472,000
No. R-1 Note Rate: Variable
CUSIP NO. 36185H DJ 95
GMACM Home Loan Trust 2001-CL1, 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 fifty-eight million four hundred
seventy-two thousand dollars ($58,472,000), 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-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 November 29, 2001 (the "Indenture"), between the
Issuer and Bank One, National Association, as indenture trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Payment Date in May 2027, 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 0.25% per
annum and (ii) 10.00% per annum. LIBOR for each applicable Interest Period will
be determined as of 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 herein.
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.
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 2001-CL1 (the
"Series 2001-CL1 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 2001-CL1 Notes. The Series 2001-CL1
Notes are subject to all terms of the Indenture.
The Series 2001-CL1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on December 26, 2001, as described in the Indenture. "Payment
Date" means the twenty-fifth 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 May 2027 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 or the Noteholders of Notes representing not less than a majority of the
aggregate Note Balance of the Notes, 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 Sellers, 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 Sellers, the Servicer, GMAC Mortgage Group, Inc. or the Issuer,
or join in any institution against the Depositor, the Sellers, 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
2001-CL1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of 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 2001-CL1 Notes, on behalf of the Noteholders of all Series 2001-CL1
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 2001-CL1 Notes issued thereunder but with prior notice to the Rating
Agencies.
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, Bank One, National Association, 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.
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 2001-CL1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
By:
--------------------------------------
Name:
Title:
Dated: November 29, 2001
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 SELLERS, 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 2001-CL1
GMACM Home Loan-Backed Term Note, Class A-2
Registered Initial Note Balance:
$16,387,000
No. R-1 Note Rate: 4.99%
CUSIP NO. 36185H DK 68
GMACM Home Loan Trust 2001-CL1, 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 sixteen million three hundred
eighty-seven thousand dollars ($16,387,000), 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 November 29, 2001 (the "Indenture"), between the
Issuer and Bank One, National Association, as indenture trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Payment Date in May 2027, 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 4.99% per annum. Interest on this Note will accrue for each
Payment Date during the calendar month preceding the month in which such Payment
Date occurs. Interest will be computed on the basis of a 360-day year consisting
of twelve 30 day months. Principal of and interest on this Note shall be paid in
the manner specified herein.
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.
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 2001-CL1 (the
"Series 2001-CL1 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 2001-CL1 Notes. The Series 2001-CL1
Notes are subject to all terms of the Indenture.
The Series 2001-CL1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on December 26, 2001, as described in the Indenture. "Payment
Date" means the twenty-fifth 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 May 2027 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 or the Noteholders of Notes representing not less than a majority of the
aggregate Note Balance of the Notes, 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 Sellers, 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 Sellers, the Servicer, GMAC Mortgage Group, Inc. or the Issuer,
or join in any institution against the Depositor, the Sellers, 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
2001-CL1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of 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 2001-CL1 Notes, on behalf of the Noteholders of all Series 2001-CL1
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 2001-CL1 Notes issued thereunder but with prior notice to the Rating
Agencies.
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, Bank One, National Association, 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.
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 2001-CL1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
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 SELLERS, 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 2001-CL1
GMACM Home Loan-Backed Term Note, Class A-3
Registered Initial Note Balance:
$40,306,000
No. R-1 Note Rate: 6.39%
CUSIP NO. 36185H DL 42
GMACM Home Loan Trust 2001-CL1, 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 million three hundred six
thousand dollars ($40,306,000), 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 November 29, 2001 (the "Indenture"), between the Issuer
and Bank One, National Association, as indenture trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Payment Date in May 2027, 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 6.39% per annum. Notwithstanding the foregoing, the Note
Rate on this Note will increase by 0.50% to 6.89% per annum beginning with the
first Interest Period for the Class A-3 Notes commencing after the first Payment
Date on which the Principal Balance of the Home Loans is less than 10% of the
initial Pool Balance. Interest on this Note will accrue for each Payment Date
during the calendar month preceding the month in which such Payment Date occurs.
Interest will be computed on the basis of a 360-day year consisting of twelve 30
day months. Principal of and interest on this Note shall be paid in the manner
specified herein.
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.
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 2001-CL1 (the
"Series 2001-CL1 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 2001-CL1 Notes. The Series 2001-CL1
Notes are subject to all terms of the Indenture.
The Series 2001-CL1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on December 26, 2001, as described in the Indenture. "Payment
Date" means the twenty-fifth 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 May 2027 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 or the Noteholders of Notes representing not less than a majority of the
aggregate Note Balance of the Notes, 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 Sellers, 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 Sellers, the Servicer, GMAC Mortgage Group, Inc. or the Issuer,
or join in any institution against the Depositor, the Sellers, 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
2001-CL1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of 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 2001-CL1 Notes, on behalf of the Noteholders of all Series 2001-CL1
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 2001-CL1 Notes issued thereunder but with prior notice to the Rating
Agencies.
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, Bank One, National Association, 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.
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 2001-CL1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
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 SELLERS, 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 2001-CL1
GMACM Home Loan-Backed Term Note, Class M-1
Registered Initial Note Balance:
$15,776,000
No. R-1 Note Rate: 7.06%
CUSIP NO. 36185H DM 25
GMACM Home Loan Trust 2001-CL1, 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 fifteen million seven hundred
seventy-six thousand dollars ($15,776,000), 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 M-1 Notes) of
the aggregate amount, if any, payable from the Note Payment Account in respect
of principal of the Class M-1 Notes (the "Notes") pursuant to Section 3.05 of
the indenture dated as of November 29, 2001 (the "Indenture"), between the
Issuer and Bank One, National Association, as indenture trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Payment Date in May 2027, 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 7.06% per annum. Notwithstanding the foregoing, the Note
Rate on this Note will increase by 0.50% to 7.56% per annum beginning with the
first Interest Period for the Class M-1 Notes commencing after the first Payment
Date on which the Principal Balance of the Home Loans is less than 10% of the
initial Pool Balance. Interest on this Note will accrue for each Payment Date
during the calendar month preceding the month in which such Payment Date occurs.
Interest will be computed on the basis of a 360-day year consisting of twelve 30
day months. Principal of and interest on this Note shall be paid in the manner
specified herein.
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.
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 2001-CL1 (the
"Series 2001-CL1 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 2001-CL1 Notes. The Series 2001-CL1
Notes are subject to all terms of the Indenture.
The Series 2001-CL1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on December 26, 2001, as described in the Indenture. "Payment
Date" means the twenty-fifth 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 May 2027 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 or the Noteholders of Notes representing not less than a majority of the
aggregate Note Balance of the Notes, 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 Sellers, 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 Sellers, the Servicer, GMAC Mortgage Group, Inc. or the Issuer,
or join in any institution against the Depositor, the Sellers, 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
2001-CL1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of 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 2001-CL1 Notes, on behalf of the Noteholders of all Series 2001-CL1
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 2001-CL1 Notes issued thereunder but with prior notice to the Rating
Agencies.
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, Bank One, National Association, 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.
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 2001-CL1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
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 SELLERS, 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 2001-CL1
GMACM Home Loan-Backed Term Note, Class M-2
Registered Initial Note Balance:
$11,832,000
No. R-1 Note Rate: 7.41%
CUSIP NO. 36185H DN 08
GMACM Home Loan Trust 2001-CL1, 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 eleven million eight hundred thirty-two
thousand dollars ($11,832,000), 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 M-2 Notes) of the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal of the Class M Notes (the "Notes") pursuant to Section 3.05 of the
indenture dated as of November 29, 2001 (the "Indenture"), between the Issuer
and Bank One, National Association, as indenture trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Payment Date in May 2027, 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 7.41% per annum. Notwithstanding the foregoing, the Note
Rate on this Note will increase by 0.50% to 7.91% per annum beginning with the
first Interest Period for the Class M-2 Notes commencing after the first Payment
Date on which the Principal Balance of the Home Loans is less than 10% of the
initial Pool Balance. Interest on this Note will accrue for each Payment Date
during the calendar month preceding the month in which such Payment Date occurs.
Interest will be computed on the basis of a 360-day year consisting of twelve 30
day months. Principal of and interest on this Note shall be paid in the manner
specified herein.
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.
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 2001-CL1 (the
"Series 2001-CL1 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 2001-CL1 Notes. The Series 2001-CL1
Notes are subject to all terms of the Indenture.
The Series 2001-CL1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on December 26, 2001, as described in the Indenture. "Payment
Date" means the twenty-fifth 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 May 2027 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 or the Noteholders of Notes representing not less than a majority of the
aggregate Note Balance of the Notes, 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 Sellers, 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 Sellers, the Servicer, GMAC Mortgage Group, Inc. or the Issuer,
or join in any institution against the Depositor, the Sellers, 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
2001-CL1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of 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 2001-CL1 Notes, on behalf of the Noteholders of all Series 2001-CL1
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 2001-CL1 Notes issued thereunder but with prior notice to the Rating
Agencies.
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, Bank One, National Association, 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.
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 2001-CL1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
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 SELLERS, 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 2001-CL1
GMACM Home Loan-Backed Term Note, Class B
Registered Initial Note Balance:
$9,466,000
No. R-1 Note Rate: 7.90%
CUSIP NO. 36185H DP 55
GMACM Home Loan Trust 2001-CL1, 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 nine million four hundred sixty-six
thousand dollars ($9,466,000), 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 B Notes) of the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal of the Class M Notes (the "Notes") pursuant to Section 3.05 of the
indenture dated as of November 29, 2001 (the "Indenture"), between the Issuer
and Bank One, National Association, as indenture trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Payment Date in May 2027, 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 7.90% per annum. Notwithstanding the foregoing, the Note
Rate on this Note will increase by 0.50% to 8.40% per annum beginning with the
first Interest Period for the Class B Notes commencing after the first Payment
Date on which the Principal Balance of the Home Loans is less than 10% of the
initial Pool Balance. Interest on this Note will accrue for each Payment Date
during the calendar month preceding the month in which such Payment Date occurs.
Interest will be computed on the basis of a 360-day year consisting of twelve 30
day months. Principal of and interest on this Note shall be paid in the manner
specified herein.
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.
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 2001-CL1 (the
"Series 2001-CL1 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 2001-CL1 Notes. The Series 2001-CL1
Notes are subject to all terms of the Indenture.
The Series 2001-CL1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Principal of and interest on this Note will be payable on each Payment
Date, commencing on December 26, 2001, as described in the Indenture. "Payment
Date" means the twenty-fifth 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 May 2027 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 or the Noteholders of Notes representing not less than a majority of the
aggregate Note Balance of the Notes 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 Sellers, 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 Sellers, the Servicer, GMAC Mortgage Group, Inc. or the Issuer,
or join in any institution against the Depositor, the Sellers, 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
2001-CL1 Notes under the Indenture at any time by the Issuer and the Indenture
Trustee with the consent of 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 2001-CL1 Notes, on behalf of the Noteholders of all Series 2001-CL1
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 2001-CL1 Notes issued thereunder but with prior notice to the Rating
Agencies.
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, Bank One, National Association, 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.
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 2001-CL1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
Dated: November 29, 2001
By:
--------------------------------------
Authorized Signatory
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.
EXECUTION COPY
APPENDIX A
DEFINITIONS
Addition Notice: With respect to the transfer of Subsequent Home Loans
to the Issuer by either Seller pursuant to Section 2.2 of the Purchase Agreement
(in substantially the form set forth in Exhibit 3 to such agreement), a notice
given by the respective Seller to the Rating Agencies, the Indenture Trustee 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 Servicing Agreement, the Custodial Agreement, any Subsequent
Transfer Agreement and the other documents and certificates delivered in
connection with any of the above.
1
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,
Delaware or the State in which the Corporate Trust Office is located 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 amount of interest
accrued at the weighted average Note Rate or Rates on the respective Note
Balances for the related Interest Periods on the amount on deposit in the
Pre-Funding Account as of the close of business on the preceding Payment Date
(or as of the Closing Date, in the case of the first Payment Date), over (ii)
the amount of reinvestment earnings since the preceding Payment Date (or as of
the Closing Date, in the case of the first Payment Date) 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)(xix) of the Indenture.
Certificate of Trust: The Certificate of Trust filed for the Trust pursuant
to Section 3810(a) of the Business Trust Statute.
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.
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.
2
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, the Class M-1 Notes as a group, the Class
M-2 Notes as a group and the Class B Notes as a group).
Class A Notes: Collectively, the Class A-1, Class A-2 and Class A-3 Notes.
Class A Optimal Principal Balance: With respect to any Payment Date
prior to the Step-down Date or after the Step-down Date if the Lockout
Cumulative Loss Test and the Delinquency Test have not been satisfied, zero; and
with respect to any other Payment Date, an amount equal to the Pool Balance as
of the end of the preceding Collection Period minus the sum of (a) 47.00% of the
Pool Balance as of the end of the preceding Collection Period and (b) the
Required Overcollateralization Amount for such Payment Date.
Class B Optimal Principal Balance: With respect to any Payment Date
prior to the Step-down Date, zero; and with respect to any other Payment Date,
the Pool Balance as of the end of the preceding Collection Period minus the sum
of (a) the aggregate Note Balance of the Class A Notes, the Class M-1 Notes and
the Class M-2 Notes (after taking into account any payments to be made on such
Payment Date in reduction of such Note Balances) and (b) the Required
Overcollateralization Amount for such Payment Date; provided, however, that the
Class B Optimal Principal Balance for any Payment Date will not be reduced below
the Class B Optimal Principal Balance for the prior Payment Date unless the
Delinquency Test and the Lockout Cumulative Loss Test are satisfied.
Class M Notes: Collectively, the Class M-1 Notes and Class M-2 Notes.
Class M-1 Optimal Principal Balance: With respect to any Payment Date
prior to the Step-down Date, zero; and with respect to any other Payment Date,
the Pool Balance as of the end of the preceding Collection Period minus the sum
of (a) the aggregate Note Balance of the Class A Notes (after taking into
3
account payments to be made on such Payment Date in reduction of such Note
Balances), (b) 27.00% of the Pool Balance as of the end of the preceding
Collection Period, and (c) the Required Overcollateralization Amount for such
Payment Date; provided, however, that the Class M-1 Optimal Principal Balance
for any Payment Date will not be reduced below the Class M-1 Optimal Principal
Balance for the prior Payment Date unless the Delinquency Test and the Lockout
Cumulative Loss Test are satisfied.
Class M-2 Optimal Principal Balance: With respect to any Payment Date
prior to the Step-down Date, zero; and with respect to any other Payment Date,
the Pool Balance as of the end of the preceding Collection Period minus the sum
of (a) the aggregate of the Note Balances of the Class A Notes and the Class M-1
Notes (after taking into account payments to be made on such Payment Date in
reduction of such Note Balances), (b) 12.00% of the Pool Balance as of the end
of the preceding Collection Period, and (c) the Required Overcollateralization
Amount for such Payment Date; provided, however, that the Class M-2 Optimal
Principal Balance for any Payment Date will not be reduced below the Class M-2
Optimal Principal Balance for the prior Payment Date unless the Delinquency Test
and the Lockout Cumulative Loss Test are satisfied.
Closing Date: November 29, 2001.
Code: The Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
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 0 Xxxx Xxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0481, with offices also located
at 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust-GMACM Series 2001-CL1. 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.
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Cumulative Loss Trigger: A trigger that is in effect if cumulative
Liquidation Loss Amounts on the Home Loans, as a percentage of the initial Pool
Balance, at any time during the period (expressed as calendar months following
the month in which the Closing Date occurs) listed in the following table, are
greater than the corresponding percentage in the following table:
Months Cumulative Liquidation
Loss Amounts
24 - 36 10.00%
37 - 48 14.00%
49 - 60 16.00%
61 and after 18.00%
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 Servicer.
Cut-Off Date: November 1, 2001.
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.
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.
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Deleted Loan: A Home Loan replaced or to be replaced with an Eligible
Substitute Loan.
Delinquency Percentage: As to any Collection Period, the percentage
obtained by dividing (a) the aggregate Principal Balance of the Home Loans
(after applying Interest Collections and Principal Collections received during
the related Collection Period) delinquent by 60 days or more as of the end of
the related Collection Period (including Home Loans in bankruptcy, foreclosure
and REO Properties but excluding any Liquidated Home Loans) by (b) the Pool
Balance as of the end of such Collection Period.
Delinquency Test: A test that shall be satisfied for any Payment Date
if the average of the Delinquency Percentages for each of the preceding six
Collection Periods is less than 6%.
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 20th 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 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, A-1+ by Standard & Poor's and F1+ by Fitch
(or the equivalent) or better by each Rating Agency, and its long term debt
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obligations are rated A2 by Xxxxx'x, XX- by Standard & Poor's and AA- by Fitch
(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).
Eligible Substitute Loan: A Home Loan substituted by either Seller or
GMACM for a Deleted Loan, which must, on the date of such substitution, as
confirmed in an Officer's 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 such Seller in the Custodial Account in the month of
substitution); (ii) comply with each representation and warranty made by GMACM
set forth in Section 3.1(b) of the Purchase Agreement, other than clauses
(viii), (xiii), (xv), (xxi), (xxiv), (xxv)(B) and (xxvii), in the case of an
Eligible Substitute Loan substituted by GMACM, and comply with the
representations and warranties made by WG Trust set forth in Section 3.1(c)(ii),
in the case of an Eligible Substitute Loan substituted by WG Trust, 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;
(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, 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 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;
7
(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.
Excess Spread: With respect to any Payment Date, the excess, if any, of
Interest Collections for the related Collection Period with respect to Home
Loans; over the interest due on the Notes on such Payment Date.
Excess Spread Trigger (3%): As to any Payment Date, a trigger that is
in effect if the average of the Excess Spread for such Payment Date and the
preceding two Payment Dates as a percentage of the Pool Balance as of the
related Collection Period is less than 3%.
Excess Spread Trigger (4%): As to any Payment Date, a trigger that is
in effect if the average of the Excess Spread for such Payment Date and the
preceding two Payment Dates as a percentage of the Pool Balance as of the
related Collection Period is less than 4% (but equal to or more than 3%).
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 May 2027.
8
Fiscal Year: The fiscal year of the Trust, which shall end on December 31
of each year.
Fitch: Fitch, Inc. or its successor in interest.
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.
GMAC: General Motors Acceptance Corporation, and its successors and
assigns.
GMACM: GMAC Mortgage Corporation, and its successors and assigns.
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.
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) loan
number, (iii) lien position of the related Mortgage, (iv) original term to
maturity of the related Mortgage Note, (v) date of the related Mortgage Note,
(vi) maturity date of the related Mortgage Note, (vii) Appraised Value of the
related Mortgaged Property, (viii) unpaid principal balance of a mortgage loan
secured by a lien senior to the Home Loan, (ix) CLTV, (x) debt-to-income ratio
of the related Mortgagor, and (xi) 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 to
become due thereunder or the Related Documents, and that remain subject to the
terms thereof.
9
Indemnified Party: The meaning specified in Section 7.02 of the Trust
Agreement.
Indenture: The indenture dated as of November 29, 2001 between the Issuer
and the Indenture Trustee.
Indenture Trustee: Bank One, National Association, a national banking
association, 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 Sellers, 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 Sellers, the
Depositor or any Affiliate of any of the foregoing Persons and (iii) is not
connected with the Issuer, any such other obligor, the Sellers, 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 Aggregate Note Balance: $152,239,000.
------------------------------
Initial Class A-1 Note Balance: $58,472,000.
------------------------------
Initial Class A-2 Note Balance: $16,387,000.
------------------------------
Initial Class A-3 Note Balance: $40,306,000.
------------------------------
Initial Class M-1 Note Balance: $15,776,000.
------------------------------
Initial Class M-2 Note Balance: $11,832,000.
------------------------------
Initial Class B Note Balance: $9,466,000.
-----------------------------
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.
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
10
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 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 Proceeds: Proceeds paid by any insurer 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.
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 paid by the Seller or
GMACM during the related Collection Period 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 in
respect of the Pre-Funding Account, which amount initially shall be $259,767.45,
and thereafter, shall be the amount computed in accordance with Section 3.18 of
the Servicing Agreement.
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 November 29, 2001 and ending
on the day preceding the first Payment Date. With respect to the Class A-2
Notes, the Class A-3 Notes, the Class M Notes and the Class B 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 2001-CL1, a Delaware business
trust, or its successor in interest.
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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.
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, LIBOR will
be the Reference Bank Rate determined by the Indenture Trustee. If no such rate
appears and the Indenture Trustee is unable to determine a Reference Bank Rate,
LIBOR will be LIBOR applicable to the preceding Interest Period.
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, security interest, 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.
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, the Servicer may 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.
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.
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Liquidation Proceeds: Proceeds (including Insurance Proceeds) 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.
Lockout Cumulative Loss Test: A test that shall be satisfied for any
Payment Date if the aggregate cumulative Liquidation Loss Amounts on the Home
Loans prior to any such Payment Date occurring during the first, year, the
second year, the third year or the fourth year (or any year after the fourth
year) after the Stepdown Date are less than 6.50%, 7.50%, 8.50% and 12.00%,
respectively, of the initial Pool Balance.
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 related Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of the
related Mortgage Note, if available).
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Home Loans registered with MERS
on the MERS(R)System.
MOM Loan: With respect to any Home Loan, MERS acting as the mortgagee
of such Home Loan, solely as nominee for the originator of such Home Loan and
its successors and assigns, at the origination thereof.
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: With respect to each Home Loan:
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(i) the original Mortgage Note endorsed or assigned without recourse in
blank (which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of GMACM) or, with respect to any
Home Loan as to which the original Mortgage Note has been permanently lost or
destroyed and has not been replaced, a Lost Note Affidavit;
(ii) the original Mortgage, noting the presence of the MIN of the Home
Loan, if the Mortgage is registered on the MERS(R) System, and language
indicating that the Home Loan is a MOM Loan if the Home Loan is a MOM Loan, with
evidence of recording thereon, or, if the original Mortgage has not yet been
returned from the public recording office, a copy of the original Mortgage
certified by GMACM that such Mortgage has been sent for recording, or a county
certified copy of such Mortgage in the event the recording office keeps the
original or if the original is lost;
(iii) unless the Home Loan is registered on the MERS(R) System,
original assignments (which may be included in one or more blanket assignments
if permitted by applicable law) of the Mortgage in recordable form from GMACM to
"Bank One, National Association, as Indenture Trustee under that certain
Indenture dated as of November 29, 2001, for GMACM Home Loan Trust 2001-CL1,
Home Loan-Backed Notes" c/o the Servicer at an address specified by the
Servicer;
(iv) originals of any intervening assignments of the Mortgage from the
originator to GMACM (or to MERS, if the Home Loan is registered on the MERS(R)
System, and which notes the presence of a MIN), with evidence of recording
thereon, or, if the original of any such intervening assignment has not yet been
returned from the public recording office, a copy of such original intervening
assignment certified by GMACM that such original intervening assignment has been
sent for recording; and
(v) a true and correct copy of each assumption, modification,
consolidation or substitution agreement, if any, relating to such Home Loan; and
(vi) any documents required to be added to such documents pursuant to
the Purchase Agreement, the Trust Agreement or the Servicing Agreement.
It is understood that the Mortgage File (other than item (i) above) may
be retained in microfilm, microfiche, optical storage or magnetic media in lieu
of hard copy; provided, that with respect to any Home Loan not registered on the
MERS(R) System, the original Assignment of Mortgage described in clause (iii)
above shall be retained in the Mortgage File.
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.
Mortgagor: The obligor or obligors under a Mortgage Note.
14
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, plus accrued and
unpaid interest on, 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 Home Loan, the Loan Rate of the Home
Loan as of the first day of the calendar month in which the related Interest
Period begins, net of the Servicing Fee Rate.
Note Balance: With respect to any Payment Date and any Class of Notes,
the Initial Note Balance thereof reduced by the sum of (i) all payments of
principal thereon pursuant to Section 3.05(a) of the Indenture, except in the
case of any amounts distributed to the Class A, Class M or Class B Noteholders
in respect of Liquidation Loss Amounts allocated to such Notes on any previous
Payment Date, and (ii) in the case of the Class A, Class M and the Class B
Notes, any Liquidation Loss Amounts applied to reduce the Note Balance of such
Class of Notes pursuant to Section 3.05(c) of the Indenture on or prior to 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
0.25% per annum, and (ii) 10.00% per annum;
Class A-2 Notes: a fixed rate equal to 4.99% per annum;
Class A-3 Notes: a fixed rate equal to 6.39% per annum (or,
for any Interest Period for the Class A-3 Notes commencing after 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 6.89% per annum);
Class M-1 Notes: a fixed rate equal to 7.06% per annum (or,
for any Interest Period for the Class M-1 Notes commencing after 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 7.56% per annum);
Class M-2 Notes: a fixed rate equal to 7.41% per annum (or,
for any Interest Period for the Class M-2 Notes commencing after 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 7.91% per annum); and
15
Class B Notes: a fixed rate equal to 7.90% per annum (or, for
any Interest Period for the Class B Notes commencing after 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
8.40% 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, 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, Class M-1, Class
M-2 or the Class B 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 $31,552,056.91.
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
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(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.
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 Collection Distribution Amount
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.
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)(x) 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 Home Loan Trust 2001-CL1, 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 25th 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 short-term debt 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;
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(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 short-term 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 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; provided further,
that if the only Rating Agency is Standard & Poor's and the original maturity of
such short-term debt 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 categories available
including any fund advised by the Indenture Trustee or an Affiliate thereof; and
(vi) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and will not cause a Rating Event, as
evidenced in writing;
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 long-term rating category
available shall mean AAA in the case of Standard & Poor's, Aaa in the case of
Moody's and AAA in the case of Fitch, and references herein to the highest
short-term rating category available shall mean A-1+ in the case of Standard &
Poor's, P-1 in the case of Moody's and F1+ in the case of Fitch.
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.
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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.
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) February 27, 2002 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.
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 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.
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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 November 26, 2001,
relating to the Notes.
Purchase Agreement: The home loan purchase agreement dated as of November
29, 2001, among the Sellers, 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, Standard & Poor's, and Fitch Inc. or,
if any 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 rating
category of a Rating Agency shall mean A-1+ in the case of Standard & Poor's,
P-1 in the case of Xxxxx'x and F1+ in the case of Fitch; 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, "Aaa" in the case of Xxxxx'x and "AAA" in the case
Fitch; and in the case of any other Rating Agency, shall mean 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,
unless the Class A-1 Notes are no longer held in book-entry form, the Business
Day next preceding such Payment Date and with respect to the Class A-2 Notes,
Class A-3 Notes, Class M Notes and Class B Notes, and the Class A-1 Notes, if
such Class A-1 Notes are longer held in book-entry form, the last Business Day
of the month preceding the month of such Payment Date.
Reference Bank Rate: With respect to any Interest Period, 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 in amounts approximately
equal to the outstanding Note Balance of the Class A-1 Notes; provided, that at
20
least two Reference Banks provide such rate. If fewer than two such rates are
provided, 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, 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
Class A-1 Notes.
Reference Banks: Three major banks which are engaged in transactions in
the London interbank markets selected by the Indenture Trustee, after
consultation with the Servicer.
Related Documents: With respect to each Home Loan, the documents contained
in the related Mortgage File.
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
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
either 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.
21
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 Insurance Policy: With respect to any Home Loan, any insurance
policy which is required to be maintained from time to time under the Servicing
Agreement or the related Subservicing Agreement in respect of such Home Loan.
Required Overcollateralization Amount: As to any Payment Date prior to
the Stepdown Date, the Required Overcollateralization Amount will be 5.50% of
the initial Pool Balance; provided, however, that if an Excess Spread Trigger
(4%) is in effect with respect to such Payment Date, the Required
Overcollateralization Amount will be 8.00% of the initial Pool Balance; and
provided, further, that if an Excess Spread Trigger (3%) or a Cumulative Loss
Trigger is in effect with respect to such Payment Date, the Required
Overcollateralization Amount will be 10.00% of the initial Pool Balance. As to
any Payment Date on or after the Stepdown Date, the Required
Overcollateralization Amount will be the lesser of (a) the Required
Overcollateralization Amount as of the initial Payment Date and (b) 11.00% of
the current Pool Balance after applying payments received in the related
Collection Period (but not lower than 0.50% of the initial Pool Balance);
provided, however, that if an Excess Spread Trigger (4%) is in effect with
respect to such Payment Date, the Required Overcollateralization Amount will be
the lesser of (a) and (b) above, except that 11.00% shall become 16.00%; and
provided, further, that if an Excess Spread Trigger (3%) or a Cumulative Loss
Trigger is in effect with respect to such Payment Date, the Required
Overcollateralization Amount will be the lesser of (a) and (b) above, except
that 11.00% shall become 20.00%. In addition, the Required Overcollateralization
Amount may be reduced if the Rating Agencies have confirmed that such reduction
will not cause the reduction or withdrawal of the ratings of the Notes.
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.
22
Seller or Sellers: GMAC Mortgage Corporation, a Pennsylvania
corporation, and its successors and assigns and Walnut Grove Mortgage Loan Trust
2001-A, a Delaware business trust, 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 November 29, 2001
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 by the Servicer, as such list may be amended from time to
time.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
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.
Stepdown Date: The first Payment Date occurring after the Payment Date
in November 2004 as to which the aggregate Note Balance of the Class A Notes
(after applying payments received in the related Collection Period) will be
reduced (such determination to be made by the Servicer prior to the actual
distribution of Collections on such Payment Date) to an amount equal to the
excess of (a) the Pool Balance as of such Payment Date (after applying payments
received in the related Collection Period) over (b) the greater of (i)
approximately 47.00% of the Pool Balance as of the end of the related Collection
Period, and (ii) 0.50% 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 close of business
on the last day of the Collection Period immediately prior to the related
Subsequent Cut-Off Date.
23
Subsequent Home Loan: A Home Loan sold by a 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 respective 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.
Telerate Screen Page 3750: The display page so designated on the
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, or, if such service is no longer offered, such other service for
displaying London interbank offered rates or comparable rates as may be selected
by the Indenture Trustee after consultation with the Servicer).
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 November 29, 2001, between
the Owner Trustee and the Depositor.
24
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.
Underwriter: Bear, Xxxxxxx & Co. Inc.
Underwriting Agreement: The underwriting agreement dated November 26, 2001,
between the Depositor, GMACM and the Underwriter.
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.
WG Trust: Walnut Grove Mortgage Loan Trust 2001-A, a Delaware business
trust.
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