EXHIBIT 4.5
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------------------------,
Issuer
and
----------------------------,
Trustee
INDENTURE
Dated as of ________ __, 199_
Relating to
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________________________ NOTES
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TABLE OF CONTENTS
Page
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PARTIES
PRELIMINARY STATEMENT
GRANTING CLAUSE
DEFINITIONS
SECTION 1.01. General Definitions.........................................I-1
ARTICLE II
THE NOTES
SECTION 2.01. Forms Generally............................................II-1
SECTION 2.02. Forms of Notes and Certificate of Authentication...........II-1
SECTION 2.03. Notes Issuable in Classes; Provisions with Respect to
Principal and Interest Payments............................II-2
SECTION 2.04. Denominations..............................................II-3
SECTION 2.05. Execution, Authentication, Delivery and Dating.............II-4
SECTION 2.06. Temporary Notes............................................II-4
SECTION 2.07. Registration, Registration of Transfer and Exchange........II-5
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Note..................II-6
SECTION 2.09. Payments of Principal and Interest; Principal and Interest
Rights Reserved............................................II-7
SECTION 2.10. Persons Deemed Owners......................................II-8
SECTION 2.11. Cancellation...............................................II-9
SECTION 2.12. Authentication and Delivery of Notes.......................II-9
SECTION 2.13. Matters Relating to Book Entry Notes......................II-13
SECTION 2.14. Termination of Book Entry System..........................II-14
SECTION 2.15. Tax Treatment.............................................II-15
ARTICLE III
COVENANTS
SECTION 3.01. Payment of Notes..........................................III-1
SECTION 3.02. Maintenance of Office or Agency...........................III-1
SECTION 3.03. Money for Note Payments to Be Held in Trust...............III-1
SECTION 3.04. Corporate Existence of Owner Trustee......................III-4
SECTION 3.05. Protection of Trust Estate................................III-4
SECTION 3.06. Opinions as to Trust Estate...............................III-5
SECTION 3.07. Performance of Obligations; Master Servicing Agreement....III-5
SECTION 3.08. Investment Company Act....................................III-7
SECTION 3.09. Negative Covenants........................................III-7
SECTION 3.10. Annual Statement as to Compliance.........................III-8
SECTION 3.11. Recording of Assignments..................................III-8
SECTION 3.12. Limitation of Liability of ...............................III-8
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.....................IV-1
SECTION 4.02. Application of Trust Money..................................IV-2
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Event of Default.............................................V-1
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...........V-2
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................V-4
SECTION 5.04. Remedies.....................................................V-4
SECTION 5.05. [Reserved]...................................................V-5
SECTION 5.06. Trustee May File Proofs of Claim.............................V-5
SECTION 5.07. Trustee May Enforce Claims without Possession of Notes.......V-6
SECTION 5.08. Application of Money Collected...............................V-6
SECTION 5.09. Limitation on Suits..........................................V-7
SECTION 5.10. Unconditional Rights of Noteholders to Receive Principal
and Interest.................................................V-8
SECTION 5.11. Restoration of Rights and Remedies...........................V-8
SECTION 5.12. Rights and Remedies Cumulative...............................V-8
SECTION 5.13. Delay or Omission Not Waiver.................................V-8
SECTION 5.14. Control by Noteholders.......................................V-9
SECTION 5.15. Waiver of Past Defaults......................................V-9
SECTION 5.16. Undertaking for Costs.......................................V-10
SECTION 5.17. Waiver of Stay or Extension Laws............................V-10
SECTION 5.18. Sale of Trust Estate........................................V-10
SECTION 5.19. Action on Notes.............................................V-12
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Duties of Trustee...........................................VI-1
SECTION 6.02. Notice of Default...........................................VI-2
SECTION 6.03. Rights of Trustee...........................................VI-3
SECTION 6.04. Not Responsible for Recitals or Issuance of Notes...........VI-4
SECTION 6.05. May Hold Notes..............................................VI-5
SECTION 6.06. Money Held in Trust.........................................VI-5
SECTION 6.07. Compensation and Reimbursement..............................VI-6
SECTION 6.08. Eligibility; Disqualification...............................VI-7
SECTION 6.09. Trustee's Capital and Surplus...............................VI-7
SECTION 6.10. Resignation and Removal; Appointment of Successor...........VI-7
SECTION 6.11. Acceptance of Appointment by Successor......................VI-8
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.........................................VI-9
SECTION 6.13. Preferential Collection of Claim Against Issuer.............VI-9
SECTION 6.14. Co-trustees and Separate Trustees...........................VI-9
SECTION 6.15. Authenticating Agents......................................VI-11
SECTION 6.16. Payment of Certain Insurance Premiums......................VI-12
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses of
Noteholders................................................VII-1
SECTION 7.02. Preservation of Information; Communications to
Noteholders................................................VII-1
SECTION 7.03. Reports by Trustee.........................................VII-1
SECTION 7.04. Reports by Issuer..........................................VII-2
SECTION 7.05. Notice to the Rating Agencies[, to the Insurer and to the
Swap Provider].............................................VII-2
ARTICLE VIII
ACCOUNTS, PAYMENTS OF INTEREST AND PRINCIPAL, AND RELEASES
SECTION 8.01. Collection of Moneys......................................VIII-1
SECTION 8.02. Distribution Account......................................VIII-1
SECTION 8.03. General Provisions Regarding Pledged Accounts.............VIII-2
SECTION 8.04. Purchases of Defective Pledged Mortgages..................VIII-3
SECTION 8.05. Grant of Replacement Pledged Mortgage.....................VIII-4
SECTION 8.06. Reports by Trustee to Noteholders.........................VIII-4
SECTION 8.07. Reports by Trustee........................................VIII-4
SECTION 8.08. Trust Estate; Release and Delivery of Mortgage
Documents.................................................VIII-5
SECTION 8.09. [Reserved]................................................VIII-5
SECTION 8.10. Master Servicer as Agent and Bailees of Trustee...........VIII-5
SECTION 8.11. Opinion of Counsel........................................VIII-6
SECTION 8.12. Release of Pledged Mortgages..............................VIII-6
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders.....IX-1
SECTION 9.02. Supplemental Indentures With Consent of Noteholders........IX-2
SECTION 9.03. Execution of Supplemental Indentures.......................IX-4
SECTION 9.04. Effect of Supplemental Indentures..........................IX-4
SECTION 9.05. Conformity with Trust Indenture Act........................IX-5
SECTION 9.06. Reference in Notes to Supplemental Indentures..............IX-5
SECTION 9.07. Amendments to Deposit Trust Agreement or
Administration Agreement...................................IX-5
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. Redemption...................................................X-1
SECTION 10.02. Form of Redemption Notice....................................X-1
SECTION 10.03. Notes Payable on Redemption Date.............................X-2
SECTION 10.04. Retention of Notes by Issuer.................................X-2
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions........................XI-1
SECTION 11.02. Form of Documents Delivered to Trustee......................XI-1
SECTION 11.03. Acts of Noteholders.........................................XI-2
SECTION 11.04. Notices, etc. to Trustee and Issuer.........................XI-3
SECTION 11.05. Notices and Reports to Noteholders; Waiver of Notices.......XI-4
SECTION 11.06. Rules by Trustee and Agents.................................XI-5
SECTION 11.07. Conflict with Trust Indenture Act...........................XI-5
SECTION 11.08. Effect of Headings and Table of Contents....................XI-5
SECTION 11.09. Successors and Assigns......................................XI-5
SECTION 11.10. Separability................................................XI-5
SECTION 11.11. Benefits of Indenture.......................................XI-5
SECTION 11.12. Legal Holidays..............................................XI-6
SECTION 11.13. Governing Law...............................................XI-6
SECTION 11.14. Counterparts................................................XI-6
SECTION 11.15. Recording of Indenture......................................XI-6
SECTION 11.16. Issuer Obligation...........................................XI-6
SECTION 11.17. Inspection..................................................XI-7
SECTION 11.18. Usury.......................................................XI-7
SECTION 11.19. No Petition.................................................XI-7
[ARTICLE XII
THE NOTE INSURER
SECTION 12.01. Certain Matters Regarding the Insurer and The Insurer's
Policy....................................................XII-1]
TESTIMONIUM..............................................................S-1
SIGNATURES AND SEALS.....................................................S-1
ACKNOWLEDGMENTS..........................................................S-3
SCHEDULE A - Schedule of Pledged Mortgages..............................A-1
EXHIBIT I - Letter Agreement with the Depository
EXHIBIT II - Form of Class A-1 Note
EXHIBIT III - Form of Class A-2 Note
[EXHIBIT IV - Form of Note Insurance Policy]
PARTIES
INDENTURE, dated as of ________ __, 199_ (as amended or supplemented from
time to time as permitted hereby, the "Indenture"), between
_______________________ (herein, together with its permitted successors and
assigns, called the "Issuer"), a
________________________________________________, and
____________________________, a ______________________________________________,
as trustee (together with its permitted successors in the trusts hereunder, the
"Trustee").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for its ____________________________ Notes (the "Notes"), issuable as
provided in this Indenture. All covenants and agreements made by the Issuer
herein are for the benefit and security of the Holders of the Notes[, the
Insurer and the Swap Provider]. The Issuer is entering into this Indenture, and
the Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement of the Issuer
in accordance with its terms have been done.
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee, for the exclusive benefit of the
Holders of the Notes [and the Insurer,] all of the Issuer's right, title and
interest in and to (a) the Pledged Mortgages identified in Schedule A to this
Indenture, including the related Mortgage Documents, which the Issuer has caused
to be delivered to the Custodian herewith, and all interest and principal
received or receivable by the Issuer on or with respect to the Pledged Mortgages
after the Cut-Off Date and all interest and principal payments on the Pledged
Mortgages received prior to the Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments of interest
and principal due and payable on the Pledged Mortgages on or before the Cut-off
Date, and all other proceeds received in respect of such Pledged Mortgages, (b)
the Issuer's rights under the Mortgage Loan Purchase Agreement, the Management
Agreement, the Administration Agreement, the Swap Agreement, the Master
Servicing Agreement, the Assignment and Assumption Agreement and the Master
Mortgage Loan Purchase Agreement [(c) the Insurance Policies,] (d) all cash,
instruments or other property held or required to be deposited in the Note
Account or the Distribution Account (exclusive of any earnings on investments
made with funds deposited in the Distribution Account or the Note Account), (e)
property that secured a Pledged Mortgage that has become an REO property, and
(f) all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquid assets, including, without limitation, all
Insurance Proceeds, Liquidation Proceeds and condemnation awards. Such Grants
are made, however, in trust, to secure the Notes equally and ratably without
prejudice, priority or distinction between any Note and any other Note by reason
of difference in time of issuance or otherwise, [and for the benefit of the
Insurer and the Swap Provider,] and to secure (i) the payment of all amounts due
on the Notes in accordance with their terms, (ii) the payment of all other sums
payable under this Indenture with respect to the Notes, (iii) compliance with
the provisions of this Indenture, all as provided in this Indenture, (iv) the
payment of all amounts due by the Issuer to the [Insurer, including the
obligations of the Issuer to the Insurer under this Indenture, the
Administration Agreement and the Insurance Agreement, and (v) the payment of all
amounts due by the Issuer to the Swap Provider, including the obligations of the
Issuer to the Swap Provider under the Swap Agreement.] All terms used in the
foregoing granting clauses that are defined in Section 1.01 are used with the
meanings given in said Section.
The Trustee acknowledges such Grant, accepts the trusts hereunder in
accordance with the provisions of this Indenture and agrees to perform the
duties herein required to the best of its ability to the end that the interests
of the Holders of the Notes [and the Insurer] may be adequately and effectively
protected.
[The Trustee agrees that it will hold the Insurer's Policy in trust and
that it will hold any proceeds of any claim made upon the Insurer's Policy,
solely for the use and benefit of the Noteholders in accordance with the terms
hereof and of the Insurer's Policy.]
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL DEFINITIONS.
Except as otherwise specified or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of this Indenture, and the definitions of such terms are applicable
to the singular as well as to the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms. Whenever
reference is made herein to an Event of Default or a Default known to the
Trustee or of which the Trustee has notice or knowledge, such reference shall be
construed to refer only to an Event of Default or Default of which the Trustee
is deemed to have notice or knowledge pursuant to Section 6.01(d). Capitalized
terms that are used but not defined in this Indenture and which are defined in
the Administration Agreement have the meanings assigned to them therein. All
other terms used herein which are defined in the Trust Indenture Act (as
hereinafter defined), either directly or by reference therein, have the meanings
assigned to them therein.
"ACCOUNTANT": A Person engaged in the practice of accounting who (except
when this Indenture provides that an Accountant must be Independent) may be
employed by or affiliated with the Issuer or an Affiliate of the Issuer.
"ACT": With respect to any Noteholder, as defined in Section 11.03.
"ADMINISTRATION AGREEMENT": The Administration Agreement dated as of
________________ ____, 199____ among the Issuer, ________________, the
Administrator and the Trustee.
"ADMINISTRATOR": ____________________________, in its capacity as
administrator under the Administration Agreement.
"ADVANCE": The payment of any principal or interest required to be made by
the Master Servicer with respect to any Payment Date pursuant to the Master
Servicing Agreement.
"AFFILIATE": With respect to any Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"AGENT": Any Note Registrar, Paying Agent or Authenticating Agent.
"APPRAISED VALUE": With respect to any Pledged Mortgage, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a Pledged
Mortgage other than a Refinancing Pledged Mortgage, the lesser of (a) the value
of the Mortgaged Property based upon the appraisal made at the time of the
origination of such Pledged Mortgage and (b) the sales price of the Mortgaged
Property at the time of the origination of such Pledged Mortgage; (ii) with
respect to a Refinancing Pledged Mortgage, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of such Refinancing
Pledged Mortgage.
"ASSIGNMENT AND ASSUMPTION AGREEMENT": The Assignment,
Assumption and Recognition Agreement, dated as of ________________ ____,
199____, among the Master Servicer, ________________ and the Depositor pursuant
to which ________________'s rights under the Master Servicing Agreement are
assigned to the Depositor.
"ASSIGNMENTS": Collectively (i) the original instrument of assignment of a
Mortgage, including any interim assignments from the originator or any other
holder of any Pledged Mortgage, and (ii) the original instrument of assignment
of such Mortgage, made by the Issuer to the Trustee (which in either case may,
to the extent permitted by the laws of the state in which the related Mortgaged
Property is located, be a blanket instrument of assignment covering other
Mortgages as well and which may also, to the extent permitted by the laws of the
state in which the related Mortgaged Property is located, be an instrument of
assignment running directly from the mortgagee of record under the related
Mortgage to the Trustee).
"AUTHENTICATING AGENT": The Person, if any, appointed as Authenticating
Agent by the Trustee at the request of the Issuer pursuant to Section 6.15,
until any successor Authenticating Agent for the Notes is named, and thereafter
"Authenticating Agent" shall mean such successor.
"AUTHORIZED OFFICER": Any officer of the Owner Trustee who is authorized to
act for the Owner Trustee in respect of the Issuer and whose name appears on a
list of such authorized officers furnished by the Owner Trustee to the Trustee,
as such list may be amended or supplemented from time to time, and any officer
of the Issuer who is authorized to act pursuant to the Deposit Trust Agreement
and whose name appears on a list furnished by the Depositor to the Owner Trustee
and the Trustee, as such list may be amended or supplemented from time to time.
"BANK": ________________________________, a
________________________________, in its individual capacity and not as Owner
Trustee.
"BANKRUPTCY CODE": The United States Bankruptcy Reform Act of 1978, as
amended.
"BENEFICIAL OWNER": With respect to a Book Entry Note, the Person who is
the beneficial owner of such Book Entry Note.
"BOOK ENTRY NOTES": The Notes shall be registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
"BOOK ENTRY TERMINATION": As defined in Section 2.14.
"BUSINESS DAY": Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, the State
of Maryland, or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
"CLASS": Collectively, all of the Notes bearing the same class designation.
The Notes are divided into Classes as provided in Section 2.03.
"CLOSING DATE": November 6, 1997.
"CODE": The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
"COMMISSION": Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or if at any
time such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties at such
time under the Trust Indenture Act or similar legislation replacing the Trust
Indenture Act.
"CONVERTED MORTGAGE LOAN": A Convertible Mortgage that has converted to a
fixed rate mortgage.
"CONVERTIBLE MORTGAGE": A Pledged Mortgage that provides the Mortgagor with
an option to convert the Mortgage Rate to a fixed rate.
"CORPORATE TRUST OFFICE": The principal corporate trust office of the
Trustee located at ________________________, _____________________,
_____________________, or at such other address as the Trustee may designate
from time to time by notice to the Noteholders, [the Insurer, the Issuer and the
Swap Provider,] or the principal corporate trust office of any successor
Trustee.
"CUT-OFF DATE": With respect to the Pledged Mortgages, ________________
____, 199____.
"DEBT SERVICE REDUCTION": With respect to any Pledged Mortgage, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Pledged Mortgage which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
"DEFAULT": Any occurrence which is, or with notice or the lapse of time or
both would become, an Event of Default.
"DEFAULTED PLEDGED MORTGAGE": The meaning specified in Section 8.04(e).
"DEFICIENT VALUATION": With respect to any Pledged Mortgage, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Pledged Mortgage, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
"DEFINITIVE NOTES": Notes other than Book Entry Notes.
"DELETED PLEDGED MORTGAGE": As defined in Section 2 of the Administration
Agreement.
"DENOMINATION": With respect to each Note, the amount set forth on the face
thereof as the "Initial Principal Amount of this Note".
"DEPOSITOR": ________________________________ , a
-------------------------.
"DEPOSITORY": The initial Depository with respect to each Class of Book
Entry Notes shall be The Depository Trust Company of New York, the nominee for
which is Cede & Co. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
"DEPOSITORY PARTICIPANTS": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"DEPOSIT TRUST AGREEMENT": The Deposit Trust Agreement, dated as of
________________ ____, 199____, between ________________________, as Owner
Trustee, and the Depositor, creating the Issuer, as amended or supplemented from
time to time.
"DISTRIBUTION ACCOUNT": The separate Eligible Account created and
maintained by the Trustee pursuant to Section 8.02 in the name of the Trustee
for the benefit of the Noteholders [and the Insurer] and designated
"____________________________ in trust for registered holders of
____________________________, ____________________________ Notes." Funds in the
Distribution Account shall be held in trust for the Noteholders [and the
Insurer] for the uses and purposes set forth in this Indenture.
"ESCROW ACCOUNT": The Eligible Account or Accounts established and
maintained pursuant to the Master Servicing Agreement.
"EVENT OF DEFAULT": The meaning specified in Section 5.01.
"EXPENSE FEE RATE": As to each Pledged Mortgage, and any calendar month,
equals the sum of the Servicing Fee Rate and any premium payable by
________________________ to a correspondent lender with respect to such Pledged
Mortgage and the per annum rate that represents such Pledged Mortgage's pro rata
share, for such month, of the sum of the Management Fee[, the Insurer Premium]
and the fees payable to the Owner Trustee and the Custodian.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": ▇▇▇▇▇▇▇ Mac, a corporate instrumentality of the United States
created and existing under Title III of the Emergency Home Finance Act of 1970,
as amended, or any successor thereto.
"FIRREA": The Financial Institutions Reform, Recovery and Enforcement Act
of 1989.
"FNMA": ▇▇▇▇▇▇ Mae, a federally chartered and privately owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
"GRANT": To grant, bargain, sell, warrant, alienate, remise, release,
convey, assign, transfer, mortgage, pledge, create and grant a security interest
in, deposit, set-over and confirm. A Grant of a Pledged Mortgage and related
Mortgage Documents, a Permitted Investment, the Administration Agreement, the
Swap Agreement, the Mortgage Loan Purchase Agreement, the Management Agreement,
the Master Servicing Agreement, the Assignment and Assumption Agreement, the
Master Mortgage Loan Purchase Agreement, [an Insurance Policy], or any other
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including, without limitation,
the immediate and continuing right to claim for, collect, receive and give
receipts for principal and interest payments thereunder, Insurance Proceeds,
condemnation awards, purchase prices and all other moneys payable thereunder and
all proceeds thereof, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise, and generally to do
and receive anything which the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"HIGHEST LAWFUL RATE": The meaning specified in Section 11.18.
"HOLDER": The holder of Notes issued pursuant to this Indenture.
"INDENTURE" or "THIS INDENTURE": This instrument as originally executed
and, if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
as so supplemented or amended. All references in this instrument to designated
"Articles", "Sections", "Subsections" and other subdivisions are to the
designated Articles, Sections, Subsections and other subdivisions of this
instrument as originally executed. The words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section, Subsection or other subdivision.
"INDEPENDENT": When used with respect to any specified Person means such a
Person who (i) is in fact independent of the Issuer and any other obligor upon
the Notes, (ii) does not have any direct financial interest or any material
indirect financial interest in the Issuer or in any such other obligor or in an
Affiliate of the Issuer or such other obligor and (iii) is not connected with
the Issuer or any such other obligor as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person shall be appointed by
an Issuer Order and with the approval of the Trustee, which approval shall not
be unreasonably withheld, and such opinion or certificate shall state that the
signer has read this definition and that the signer is Independent within the
meaning hereof.
"INDEX": As to each Pledged Mortgage, the index from time to time in effect
for the adjustment of the Mortgage Rate set forth as such on the related
Mortgage Note.
"INDIRECT PARTICIPANT": A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
"INDIVIDUAL NOTE": A Note of an original principal amount of $1,000; a Note
of an original principal amount in excess of $1,000 shall be deemed to be a
number of Individual Notes equal to the quotient obtained by dividing such
original principal amount by $1,000.
["INSURANCE AGREEMENT": The Insurance and Indemnity Agreement dated as of
__________________ ____, 199__, by and among the Insurer,
________________________, the Depositor, the Issuer, the Administrator and the
Trustee.
"INSURANCE POLICY": With respect to any Pledged Mortgage, any primary
mortgage guaranty insurance policy or other insurance policy with respect to the
Pledged Mortgages, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policy (but shall
not include the Insurer's Policy or the Limited Purpose Surety Note).
"INSURER": ____________________________, a
____________________________ and any successor thereto.
"INSURER DEFAULT": The existence and continuance of any of the following:
(a) an Insurer Payment Default; or
(b) the filing of any petition or commencement of any case or proceeding by
the Insurer under any state or federal law relating to insolvency or bankruptcy
or the consent of Insurer to the entry of any decree or order for relief in an
involuntary case or proceeding under any state or federal bankruptcy or
insolvency law or the making of a general assignment of the Insurer for the
benefit of its creditors or the admission of the Insurer in writing in its
inability to pay its debts as they become due; or
(c) a court of competent jurisdiction or other competent regulatory agency
enters a final and nonappealable order, judgment or decree which is unstayed and
in effect for a period of 60 consecutive days under any state or federal
bankruptcy or insolvency law to appoint a custodian, trustee, agent or receiver
for the Insurer or for all or any material portion of the Insurer's property or
authorizing the taking of possession by a custodian, trustee, agent or receiver
of the Insurer or the taking of possession of all or any material portion of the
Insurer's property.
"INSURER'S POLICY": The financial guaranty insurance policy issued by the
Insurer covering the Notes issued pursuant to the Insurance Agreement.
"INSURER PAYMENT DEFAULT": Failure and continued failure by the Insurer to
make an Insured Payment required under the Insurer's Policy in accordance with
its terms.]
"INVESTOR CERTIFICATE": As defined in Section 1.01 of the Deposit Trust
Agreement.
"ISSUER": ________________________ formed pursuant to the Deposit Trust
Agreement.
"ISSUER ORDER" and "ISSUER REQUEST": A written order or request that is
dated and signed in the name of the Issuer by an Authorized Officer and
delivered to the Trustee.
"LETTER AGREEMENT": With respect to the Book Entry Notes, the letter
agreement among the Issuer, the Trustee and the Depository governing book entry
transfers of, and certain other matters with respect to, such Book Entry Notes
and attached as Exhibit I hereto.
"MANAGEMENT AGREEMENT": The Management Agreement, dated as of
________________ ____, 199____, between ________________ and the Issuer, under
which ________________ provides certain management services to the Issuer, as
such agreement may be amended or supplemented from time to time.
"MARGIN": As to each Pledged Mortgage, the percentage amount set forth on
the related Mortgage Note which is to be added to the Index in calculating the
Mortgage Rate thereon.
"MASTER MORTGAGE LOAN PURCHASE AGREEMENT": The Master Mortgage Loan
Purchase Agreement dated as of ________________ ____, 199____, as amended,
between ________________ and ________________, but only to the extent that such
agreement relates to the Pledged Mortgages.
"MASTER SERVICER": ________________, and any Person succeeding
________________ as master servicer under the Master Servicing Agreement.
"MASTER SERVICER DEFAULT": Any event of default under the Master Servicing
Agreement that subjects the Master Servicer to termination pursuant to the terms
thereof.
"MASTER SERVICING ACCOUNT": The account or accounts created and maintained
pursuant to the Master Servicing Agreement.
"MASTER SERVICING AGREEMENT": Collectively, the Master Servicing Agreement
dated as of ________________ ____, 199____, as amended, between ________________
____ and ________________ and the Pledged Asset Mortgage Servicing Agreement
dated as of ________________ ____, 199____ between ________________ and
________________, but only to the extent that such agreements relate to the
master servicing of the Pledged Mortgages, including those Pledged Mortgages
that are Mortgage 100SM Loans or ParentPower(R) Mortgage Loans.
"MATURITY": With respect to any Note, the date on which the entire unpaid
principal amount of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity of the final installment of such
principal or by declaration of acceleration, call for redemption or otherwise.
"MOODY'S": ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto. For
purposes of Section 11.04 the address for notices to Moody's shall be ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Residential Surveillance Mortgage Group or such other address as Moody's may
hereafter furnish to the Issuer, the Trustee and the Master Servicer.
"MORTGAGE": The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
"MORTGAGE NOTE": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Pledged
Mortgage.
"MORTGAGE RATE": The annual rate of interest borne by a Mortgage Note from
time to time.
"MORTGAGED PROPERTY": The underlying property securing a Pledged Mortgage.
"MORTGAGOR": The obligor(s) on a Mortgage Note.
"NET MORTGAGE RATE": As to any Pledged Mortgage and Payment Date, the
related Mortgage Rate as of the Due Date in the month preceding the month of
such Payment Date reduced by the related Expense Fee Rate.
"NOTE ACCOUNT": The separate Eligible Account or Accounts created and
maintained by the Administrator pursuant to the Administration Agreement with a
depository institution in the name and for the benefit of the Trustee on behalf
of Noteholders[, the Insurer and the Swap Provider,] and designated "Note
Account in trust for the registered holders of ________________________
________________________ Notes."
"NOTE DISTRIBUTION AMOUNT": As to any Payment Date, the sum of (i) the
Interest Payment Amount and (ii) the Principal Payment Amount.
"NOTEHOLDER" OR "HOLDER": The Person in whose name a Note is registered in
the Note Register.
"NOTE INTEREST RATE": The Class A-1 Interest Rate or the Class A-2 Interest
Rate, as applicable.
"NOTE REGISTER" AND "NOTE REGISTRAR": As defined in Section 2.07.
"NOTES": Any notes authorized by, and authenticated and delivered under,
this Indenture.
"OFFICERS' CERTIFICATE": A certificate signed by two Authorized Officers.
"OPERATIVE AGREEMENTS": The meaning ascribed thereto in the Deposit Trust
Agreement.
"OPINION OF COUNSEL": A written opinion of counsel who may, except as
otherwise expressly provided in this Indenture, be counsel for the Issuer, and
who shall be reasonably satisfactory to the Trustee [and the Insurer].
"ORIGINAL CLASS A-1 PRINCIPAL BALANCE": $__________________
"ORIGINAL CLASS A-2 PRINCIPAL BALANCE": $__________________
"ORIGINAL PLEDGED MORTGAGE": The Pledged Mortgage refinanced in connection
with the origination of a Refinancing Pledged Mortgage.
"ORIGINAL POOL PRINCIPAL BALANCE": The Pool Principal Balance as of the
Cut-off Date.
"OTS": The Office of Thrift Supervision.
"OUTSTANDING": As of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(ii) Notes or portions thereof for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust for the Holders of such
Notes; provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor, satisfactory to the Trustee, has been made;
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Trustee [and the Insurer] is presented that any such
Notes are held by a bona fide purchaser (as defined by the Uniform
Commercial Code of the applicable jurisdiction); and
(iv) Notes alleged to have been destroyed, lost or stolen for which
replacement Notes have been issued as provided for in Section 2.08;
provided, however, that in determining whether the Holders of the requisite
percentage of the aggregate Principal Amount of the Outstanding Notes have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Issuer, any other obligor upon the
Notes or any Affiliate of the Issuer or such other obligor shall be
disregarded and deemed not to be Outstanding (unless any Affiliate of the
Issuer or such other obligor holds 100% of the aggregate Principal Amount
of the Outstanding Notes), except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to
be so owned shall be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Issuer, any other obligor
upon the Notes or any Affiliate of the Issuer or such other obligor;
provided further, however, that Notes that have been paid with proceeds of
the [Insurer's Policy] shall be deemed to remain Outstanding for purposes
of this Indenture until [the Insurer] has been paid as subrogee under this
Indenture, such payment to be evidenced by a written notice from [the
Insurer] to the Trustee, [and the Insurer] shall be deemed to be the Holder
thereof to the extent of any payments thereon made by [the Insurer];
provided further that [the Insurer] shall not be entitled to receive more
than the [Insurer Reimbursement Amount], in accordance with Section 2.03(b)
of this Indenture.
"OUTSTANDING PLEDGED MORTGAGE": As of any Due Date, a Pledged Mortgage with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Pledged Mortgage prior to such Due Date.
"OWNER TRUSTEE": ________________________________, a
________________________________, not in its individual capacity but solely as
Owner Trustee under the Deposit Trust Agreement, until a successor Person shall
have become the Owner Trustee pursuant to the applicable provisions of the
Deposit Trust Agreement, and thereafter "Owner Trustee" shall mean such
successor Person.
"PARTICIPANT": A participating organization that utilizes the services of
the Depository Trust Company.
"PAYING AGENT": The Trustee or any other depository institution or trust
company that is authorized by the Issuer pursuant to Section 3.03 to pay the
principal of, or interest on, any Notes on behalf of the Issuer.
"PAYMENT DATE": With respect to the Notes and the Investor Certificate, the
25th day of each calendar month after the initial issuance of the Notes and the
Investor Certificate or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in November 1997.
"PAYMENT DATE STATEMENT": The meaning specified in Section 3(e) of the
Administration Agreement.
"PERMITTED ENCUMBRANCE": Any lien, charge, security interest, mortgage or
other encumbrance Granted by the Issuer in the Trust Estate, provided that:
(i) such lien, charge, security interest, mortgage or encumbrance
extends only to a portion of the Trust Estate which is limited to cash
deliverable or payable to the Issuer pursuant to Section 8.01 or Section
8.02(d);
(ii) such lien, charge, security interest, mortgage or other
encumbrance secures indebtedness which the Issuer is permitted to incur
under the terms of this Indenture; and
(iii) the beneficiary of such lien, charge, security interest,
mortgage or other encumbrance has agreed that in connection with the
enforcement thereof it will not bring any Proceeding seeking, or which
would result in, the sale of any portion of the Trust Estate and will not
file any petition for the commencement of insolvency proceedings with
respect to the Issuer under the federal bankruptcy laws, as now or
hereafter in effect, or any other present or future federal or state
bankruptcy, insolvency or similar law, or for the appointment of any
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or of any of its property, or seeking an
order for the winding up or liquidation of the affairs of the Issuer.
"PERSON": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PLEDGED ACCOUNTS": The Note Account and the Distribution Account
(exclusive of any earnings on investments made with funds deposited in the
Distribution Account or the Note Account).
"PLEDGED MORTGAGES": Such of the mortgage loans Granted to the Trustee
pursuant to the provisions hereof as from time to time are held as a part of the
Trust Estate (including any REO Property), the mortgage loans so held being
identified in the Schedule of Pledged Mortgages attached as Schedule A to this
Indenture, notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property.
"PREDECESSOR NOTES": With respect to any particular Note of a Class, every
previous Note of that Class evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.08 in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note.
"PREFERENCE CLAIM": Any amount previously distributed to a Noteholder that
is recoverable and sought to be recovered as a voidable preference by a trustee
in bankruptcy pursuant to the Bankruptcy Code as amended from time, in
accordance with a final nonappealable order of a court having competent
jurisdiction.
"PRINCIPAL AMOUNT": As of any Payment Date, in the case of the Class A-1
Notes, the Original Class A-1 Principal Balance reduced by all amounts
previously distributed to holders of the Class A-1 Notes as payments of
principal or, in the case of the Class A-2 Notes, the Original Class A-2
Principal Balance reduced by all amounts previously distributed to holders of
the Class A-2 Notes as payments of principal and, or, if the context so
provides, the aggregate of such balances for both Classes of Notes.
"PRINCIPAL PREPAYMENT": Any payment of principal by a Mortgagor on a
Pledged Mortgage that is received in advance of its scheduled Due Date and is
not accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
"PRINCIPAL PREPAYMENT IN FULL": Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Pledged Mortgage.
"PROCEEDING": Any suit in equity, action at law or other judicial or
administrative proceeding.
"PROSPECTUS SUPPLEMENT": The Prospectus Supplement dated _________________
____, 199__ relating to the Notes.
"RATING AGENCY": Each of S&P and Moody's. If either such organization or a
successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Issuer, notice of which designation shall be given to the
Trustee. References herein to a given rating or rating category of a Rating
Agency shall mean such rating category without giving effect to any modifiers.
"RECORD DATE": With respect to any Payment Date, the date on which the
Persons entitled to receive any payment of principal of, or interest on, any
Notes (or notice of a payment in full of principal) due and payable on such
Payment Date are determined; such date shall be the last day of the month
preceding the month of such Payment Date.
"REDEMPTION DATE": Any Payment Date on which Notes are to be redeemed.
"REDEMPTION PRICE": With respect to the Notes to be redeemed, an amount
equal to ____% of the Principal Amount of the Class A-1 Notes and ____% of the
Principal Amount of the Class A-2 Notes, together with all unpaid Interest
Payment Amounts.
"REFINANCING PLEDGED MORTGAGE": Any Pledged Mortgage originated in
connection with the refinancing of an existing mortgage loan.
"RESPONSIBLE OFFICER": With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee and also, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"S&P": Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇ Inc. For
purposes of Section 11.04 the address for notices to S&P shall be Standard &
Poor's Ratings Group, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Mortgage Surveillance Monitoring, or such other address as S&P may
hereafter furnish to the Issuer, the Trustee and the Master Servicer.
"SAIF": The Savings Association Insurance Fund, or any successor thereto.
"SALE": The meaning specified in Section 5.18(a).
"SECURITIES ACT": The Securities Act of 1933, as amended.
"STATED MATURITY": With respect to any and all Notes, _________________
____, 20__.
"STATED PRINCIPAL BALANCE": As to any Pledged Mortgage and Due Date, the
unpaid principal balance of such Pledged Mortgage as of such Due Date as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of any moratorium or similar
waiver or grace period) after giving effect to any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Pledged Mortgage) and to the payment of principal due
on such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
["SWAP AGREEMENT": The ISDA Master Agreement with an attached Schedule and
Confirmation, dated as of ________________ ____, 199____, between the Issuer and
the Swap Provider.
"SWAP PROVIDER": ________________________________ and its successors.]
"TRUST ESTATE": All money, instruments and other property subject or
intended to be subject to the lien of this Indenture for the benefit of the
Noteholders [and the Insurer] as of any particular time (including, without
limitation, all property and interests Granted to the Trustee), including all
proceeds thereof.
"TRUST INDENTURE ACT" OR "TIA": The Trust Indenture Act of 1939, as
amended, as in force at the Closing Date, unless otherwise specifically
provided.
"TRUSTEE": ____________________________, a ____________________________,
and any Person succeeding as Trustee hereunder pursuant to Section 6.12 or any
other applicable provision hereof.
"VOTING RIGHTS": With respect to all of the provisions of this Indenture
requiring the consent, vote, resolution or similar action of the Noteholders,
the voting rights represented by each Note as against the other Noteholders,
which voting rights shall be in the proportion borne by the Principal Amount of
such Note to the aggregate Principal Amounts of the Notes.
ARTICLE II
THE NOTES
SECTION 2.01. FORMS GENERALLY.
The Notes and the Trustee's certificate of authentication shall be in
substantially the form required by this Article II, 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 be
required to comply with the rules of any securities exchange on which the Notes
may be listed, or as may, consistently herewith, be determined by the officers
executing such 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 on the face of the Note.
The Definitive Notes may be produced in any manner determined by the
officers executing such Notes, as evidenced by their execution thereof;
provided, however, that in the event the Notes are listed on any securities
exchange, the Notes shall be produced in accordance with the rules of any
securities exchange on which the Notes may be listed.
SECTION 2.02. FORMS OF NOTES AND CERTIFICATE OF AUTHENTICATION.
(a) The form of Note which is a Class A-1 Note is attached
hereto as Exhibit II.
(b) The form of Note which is a Class A-2 Note is attached hereto as
Exhibit III.
(c) The form of the Trustee's certificate of authentication is as follows:
"This is one of the Notes referred to in the within mentioned Indenture.
___________________________________
as Trustee
By: ________________________________
Authorized Signatory"
(d) The form of assignment is as follows:
"FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________________________
______________________________________
(Please insert Social Security or other
Identifying Number of Assignee)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or type name and address of Assignee)
the within Note of ________________________, and does hereby irrevocably
constitute and appoint ______________ Attorney to transfer such Note on the
books of the within named trust, with full power of substitution in the
premises.
Dated: _______________________________ _______________________________________
Notice: The signature to this
assignment must correspond with the
name as written upon the face of this
Note in every particular without
alteration or enlargement or any
change whatever. The signature must be
guaranteed by a member of a signature
guaranty medallion program. Notarized
or witnessed signatures are not
acceptable."
SECTION 2.03. NOTES ISSUABLE IN CLASSES; PROVISIONS WITH RESPECT TO
PRINCIPAL AND INTEREST PAYMENTS.
(a) General.
The Notes shall be designated generally as the "________________________,
"________________________ Notes" of the Issuer. Each Note shall bear upon the
face thereof the designation so selected for the Class to which it belongs.
Notes of each Class shall constitute Book Entry Notes as set forth in
Section 2.13 hereof. The Notes shall be issued in two Classes, the Class A-1
Notes and the Class A-2 Notes. The aggregate principal amount of Notes that may
be authenticated and delivered under this Indenture is limited to
$________________ with respect to the Class A-1 Notes and $________________ with
respect to the Class A-2 Notes, except for Notes
authenticated and delivered upon registration of, transfer of or in exchange
for, or in lieu of Notes pursuant to Sections 2.06, 2.07 and 2.08 hereof.
All of the Notes shall be issued in the appropriate forms attached as
Exhibits hereto with such additions and completions as are appropriate for each
such Class.
The final installments of principal of the Classes of Notes shall be
payable at the Stated Maturity. The principal of each Note shall be payable in
installments ending no later than the Stated Maturity of the final installment
of the principal thereof unless the unpaid principal of such Note becomes due
and payable at an earlier date by declaration of acceleration or call for
redemption or otherwise. For each Payment Date prior to the Stated Maturity, the
aggregate amount of each installment of principal due and payable on each Class
of Notes shall be as provided in Section 2.03(b). All payments made with respect
to any Note shall be applied first to the interest then due and payable on such
Note, then, if applicable, to any Noteholders' Interest Carryover then to the
principal thereof.
(b) Payments of Principal of and Interest on the Notes.
On each Payment Date, the Trustee shall withdraw Net Available Funds [(and
any amounts on deposit pursuant to claims under the Insurer's Policy)] from the
Distribution Account and distribute such funds to the Noteholders [and the
Insurer, as applicable,] in the following amounts and order of priority:
________________________________.
Each Class of Notes shall accrue interest at the related Note Interest
Rate, and such interest shall be payable on each Payment Date as provided in
Section 2.09(a). All principal payments on each Class of Notes shall be made pro
rata to the Holders of each Class of Notes entitled thereto in the proportion
that the Principal Amount of each such Class bears to the other Class.
SECTION 2.04. DENOMINATIONS.
Each Class of Book Entry Notes shall be evidenced initially by one or more
Notes representing the entire aggregate Principal Amount of such Class of Notes
as of the Closing Date, beneficial ownership of which may be held in
denominations representing Principal Amounts of $1,000 and in multiples of
$1,000 in excess thereof. All of the Book Entry Notes shall be initially
registered on the Note Register in the name of Cede & Co., the nominee of the
Depository, and no Beneficial Owner will receive a Definitive Note representing
such Beneficial Owner's interest in the Book Entry Notes, except in the event of
Book Entry Termination.
SECTION 2.05. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed by an Authorized Officer in the name and on
behalf of the Issuer. The signature of such officer on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signature of an individual who was at
any time an Authorized Officer shall bind the Issuer, notwithstanding that such
individual has ceased to hold such office prior to the authentication and
delivery of such Notes or did not hold such office at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Notes executed on behalf of the Issuer to the
Trustee for authentication; and the Trustee shall authenticate and deliver such
Notes as in this Indenture provided and not otherwise.
Each Note authenticated on the Closing Date shall be dated the Closing
Date. All other Notes which are authenticated after the Closing Date for any
other purpose hereunder shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Trustee or by any Authenticating Agent by the manual signature of one of its
authorized officers or employees, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.06. TEMPORARY NOTES.
So long as the Book Entry Notes are held by the Depository for the
Participants in book-entry form, they may be typewritten or in any other form
acceptable to the Issuer, the Trustee and the Depository. At any time during
which the Book Entry Notes are not held by the Depository for the Participants
in book-entry form, the Definitive Notes shall be lithographed or printed with
steel engraved borders.
Pending the preparation of Definitive Notes, the Issuer may execute, and
upon Issuer Order the Trustee shall authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they may be so issued and with such 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 definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.02, without charge to the Holder. Upon surrender or
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Trustee shall authenticate and deliver and exchange therefor a like
principal amount of definitive Notes of the same Class and of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes of the
same Class.
SECTION 2.07. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes. The Trustee is hereby initially appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar appointed by the Issuer, the Issuer shall
promptly appoint a successor or, in the absence of such appointment, shall
assume the duties of Note Registrar.
At any time the Trustee is not also the Note Registrar, the Trustee shall
be a co-Note Registrar. The Issuer shall cause each co-Note Registrar to furnish
the Note Registrar, promptly after each authentication of a Note by it,
appropriate information with respect thereto for entry by the Note Registrar
into the Note Register. If the Trustee shall at any time not be authorized to
keep and maintain the Note Register, the Trustee shall have the right to inspect
such Note Register at all reasonable times and to rely conclusively upon a
certificate of the Person in charge of the Note Register as to the names and
addresses of the Holders of the Notes and the principal amounts and numbers of
such Notes so held.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and Class.
At the option of the Holder, Notes may be exchanged for other Notes of any
authorized denominations, and of a like aggregate initial principal amount and
Class, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Trustee shall authenticate and deliver, the Notes which the Noteholder
making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge as may be imposed in connection with
any registration of transfer or exchange of Notes, other than exchanges pursuant
to Section 2.08 not involving any transfer.
SECTION 2.08. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
If (1) any mutilated Note is surrendered to the Trustee or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note and (2) there is delivered to the Trustee such security or indemnity as may
be required by the Trustee [and the Insurer] to save the Issuer [and the
Insurer] and the Trustee harmless, then, in the absence of notice to the Issuer
or the Trustee that such Note has been acquired by a bona fide purchaser, the
Issuer shall execute and upon its request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a new Note or Notes of the same tenor, aggregate initial principal
amount and Class bearing a number not contemporaneously outstanding. If, after
the delivery of such new Note, a bona fide purchaser of the original Note in
lieu of which such new Note was issued presents for payment such original Note,
the Issuer and the Trustee shall be entitled to recover such new Note from the
person to whom it was delivered or any person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expenses incurred
by the Issuer or the Trustee in connection therewith. If any such mutilated,
destroyed, lost or stolen Note shall have become or shall be about to become due
and payable, or shall have become subject to redemption in full, instead of
issuing a new Note, the Issuer may pay such Note without surrender thereof,
except that any mutilated Note shall be surrendered.
Upon the issuance of any new Note under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.09. PAYMENTS OF PRINCIPAL AND INTEREST; PRINCIPAL AND INTEREST
RIGHTS RESERVED.
(a) The Notes of each Class shall bear interest for each Interest Accrual
Period at the Note Interest Rate for the Notes of such Class, which interest
shall be due and payable on each Payment Date on the unpaid principal amount of
the Notes of such Class commencing on the Closing Date and continuing on each
Payment Date thereafter until the entire unpaid principal amount of the Notes of
such Class is paid, whether by acceleration or otherwise, and (to the extent
lawful and enforceable) shall bear interest on overdue interest at the Note
Interest Rate for the Notes of such Class all as specified herein, in the forms
of the Notes and in the Administration Agreement. In addition, in the
circumstances specified in the Administration Agreement, Noteholders' Interest
Carryover may accrue with respect to the Notes which shall be payable as
specified herein, in the forms of the Notes and in the Administration Agreement.
The principal of the Notes shall be payable as specified herein, in the
forms of the Notes and in the Administration Agreement until the entire unpaid
principal balance of the Notes of such Series is paid.
(b) Each payment of principal of and interest on, and any Noteholders'
Interest Carryover with respect to, a Book Entry Note shall be paid to the
Depository, which shall credit the amount of such payments to the accounts of
its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such payments to the
Beneficial Owners of the Book Entry Notes that it represents and to each
indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Beneficial Owners of the Book Entry
Notes that it represents. All such credits and disbursements are to be made by
the Depository and the Depository Participants in accordance with the provisions
of the Notes. Neither the Trustee, the Note Registrar[, the Insurer] nor the
Issuer shall have any responsibility for such credits and disbursements.
Each payment of principal of and interest on, and any Noteholders' Interest
Carryover with respect to, a Definitive Note shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the Record Date, for the applicable Payment Date by check
mailed to such Person's address as it appears in the Note Register on such
Record Date, except for the final installment of principal payable with respect
to such Note, which shall be payable as provided in Section 2.09(c).
All payments of principal of and interest on, and any Noteholders' Interest
Carryover with respect to, the Notes shall be made only from the Trust Estate
and any other assets of the Issuer, and each Holder of the Notes, by its
acceptance of the Notes, agrees that it will have recourse solely against such
Trust Estate and such other assets of the Issuer and that neither the Owner
Trustee in its individual capacity, the Owner nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns shall be personally liable for any amounts payable, or performance due,
under the Notes or this Indenture.
(c) All reductions in the principal amount of a Note (or one or more
Predecessor Notes) effected by payments of installments of principal made on any
Payment Date shall be binding upon all Holders of such Note and any Note issued
upon transfer thereof or in exchange therefor or in lieu thereof. The final
installment of principal of each Note (including the Redemption Price of any
Note called for redemption), shall be payable only upon presentation and
surrender thereof on or after the Payment Date therefor at the office or agency
of the Issuer maintained by it for such purpose in the Borough of Manhattan, the
City of New York, State of New York, pursuant to Section 3.02. Whenever the
Trustee expects that the entire remaining unpaid principal amount of any Note
will become due and payable on the next Payment Date, it shall, no later than
five days prior to such Payment Date, mail or cause to be mailed to the Holder
of each Note as of the close of the business on such otherwise applicable Record
Date a notice to the effect that:
(i) the Trustee expects that funds sufficient to pay such final
installment will be available in the Distribution Account on such Payment
Date; and
(ii) if such funds are available, such final installment will be
payable on such Payment Date, but only upon presentation and surrender of
such Note at the office or agency of the Issuer maintained for such purpose
pursuant to Section 3.02 (the address of which shall be set forth in such
notice).
Notices in connection with redemptions of Notes shall be mailed to Holders
in accordance with Section 10.02.
SECTION 2.10. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Note, the
Issuer, [the Insurer,] the Trustee, any Agent and any other agent of the Issuer,
[the Insurer,] or the Trustee shall treat the Person in whose name any Note is
registered as the owner of such Note (a) on the applicable Record Date for the
purpose of receiving payments of the principal of, and interest on, such Note
and (b) on any other date for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Issuer, [the Insurer,] the Trustee, any Agent
nor any other agent of the Issuer or the Trustee shall be affected by notice to
the contrary.
SECTION 2.11. CANCELLATION.
All Notes surrendered for payment, registration of transfer, exchange or
redemption (unless the Issuer elects not to retire redeemed Notes) shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Issuer may at any time deliver to the
Trustee for cancellation any Note previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be held by the Trustee in accordance with its
standard retention policy, unless the Issuer shall direct by an Issuer Order
that they be destroyed or returned to it.
SECTION 2.12. AUTHENTICATION AND DELIVERY OF NOTES.
The Notes may be executed by the Issuer and delivered to the Trustee for
authentication, and thereupon the same shall be authenticated and delivered by
the Trustee, provided, that such execution and authentication may be made in
counterpart, upon Issuer Request and upon receipt by the Trustee of the
following:
(a) an Issuer Order authorizing the execution, authentication and delivery
of the Notes and specifying the Classes, the Stated Maturity of the final
installment of principal, the principal amount and the Note Interest Rate, of
each Class of such Notes to be authenticated and delivered;
(b) an Issuer Order authorizing the execution and delivery of this
Indenture;
SECTION 2.13. MATTERS RELATING TO BOOK ENTRY NOTES.
(a) If the Notes are listed on any stock exchange at any time after the
Closing Date, the Issuer shall, if required as a condition to such listing,
prepare and deliver to the Trustee Notes in substantially the same form as the
Notes issued on the Closing Date, but with such other additional features and
such modifications, if any, as shall be necessary or appropriate in order to
comply with the requirements of such stock exchange for the listing of the Notes
on such exchange. Notes in the form issued on the Closing Date shall thereafter
be exchangeable for Notes in such revised form to the same extent as temporary
Notes are exchangeable for Definitive Notes pursuant to Section 2.06.
(b) Each Class of Book Entry Notes will be issued in the form of a single
typewritten note certificate (each, a "DTC Certificate") to be delivered to the
Depository by the Issuer substantially in the respective forms for each such
Class attached as Exhibits hereto. The DTC Certificate for each such Class of
Book Entry Notes shall be initially registered on the Note Register in the name
of the nominee of such Depository and no Beneficial Owner will receive a
certificate representing its interests in any Class of Book Entry Notes except
in the event that the Trustee issues Definitive Notes, as provided in Section
2.14. Pursuant to the Letter Agreement, while each Class of the Book Entry Notes
remains outstanding and such Depository remains the Holder, it will agree to
make book-entry transfers among the Depository Participants and receive and
transmit payments of principal and interest on the Book Entry Notes until and
unless the Trustee authenticates and delivers Definitive Notes to the Beneficial
Owners of the Book Entry Notes or their nominees, as described in Section 2.14.
(c) Prior to Book Entry Termination, each Class of Book Entry Notes will
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of the Book Entry Notes may not be transferred by the Trustee
or the Note Registrar except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Beneficial Owners and with
respect to ownership and transfers of such Book Entry Notes; (iii) ownership and
transfers of registration of the Book Entry Notes on the books of the Depository
shall be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall deal with the Depository,
Depository Participants and interest participating firms as representatives of
the Beneficial Owners of the Book Entry Notes for purposes of exercising the
rights of holders under the Indenture, and requests and directions for and votes
of such representatives shall not be deemed to be inconsistent if they are made
with respect to different Beneficial Owners; and (vi) the Trustee [and the
Insurer] may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and Persons shown on the books of such indirect participating firms as
direct or indirect Beneficial Owners.
All transfers by Beneficial Owners of Book Entry Notes shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Beneficial Owner. Each Depository Participant
shall only transfer Book Entry Notes of Beneficial Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
SECTION 2.14. TERMINATION OF BOOK ENTRY SYSTEM.
(a) The book entry system through the Depository with respect to any Class
of Book Entry Notes may be terminated (a "Book Entry Termination") upon the
happening of any of the following:
(i) The Depository or the Issuer advises the Trustee in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and the Issuer is unable to locate a
qualified successor clearing agency satisfactory to the Trustee and the
Issuer;
(ii) The Issuer at its option advises the Trustee in writing that it
elects to terminate the book entry system through the Depository; or
(iii) After the occurrence of an Event of Default (at which time the
Trustee shall use all reasonable efforts to promptly notify each Beneficial
Owner through the Depository of such Event of Default when such notice
shall be given pursuant to Section 6.02), the Beneficial Owners of a
majority in aggregate Principal Amount of the Book Entry Notes together
advise the Trustee and the Depository through the Depository Participants
in writing that the continuation of a book entry system through the
Depository is no longer in the best interests of the Beneficial Owners.
(b) Upon the occurrence of any event described in subsection (a) above, the
Trustee shall notify all Beneficial Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Note
certificates to Beneficial Owners requesting the same, in an aggregate Principal
Amount representing the interest of each, making such adjustments and allowances
as it may find necessary or appropriate as to accrued interest, if any, and
previous calls for redemption. Definitive Note certificates shall be issued only
upon surrender to the Trustee of the Book Entry Note by the Depository,
accompanied by registration instructions for the Definitive Note certificates.
Neither the Issuer nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon issuance of the Definitive Note
certificates, all references herein to obligations imposed upon or to be
performed by the Depository shall cease to be applicable and the provisions
relating to Definitive Notes shall be applicable.
SECTION 2.15. 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.
ARTICLE III
COVENANTS
SECTION 3.01. PAYMENT OF NOTES.
The Issuer will pay or cause to be duly and punctually paid the principal
of, and interest on, the Notes (and, to the extent applicable, Noteholders'
Interest Carryover accrued thereon) in accordance with the terms of the Notes
and this Indenture.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain in the Borough of Manhattan, the City of New York,
the State of New York an office or agency where Notes may be presented or
surrendered for payment or 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 will give prompt written
notice to the Trustee [and the Insurer] of the location and any change in the
location, of such office or agency. Until written notice of any change in the
location of such office or agency is delivered to the Trustee or if at any time
the Issuer shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee [and the Insurer] with the address thereof, Notes
may be so presented and surrendered, and such notices and demands may be made or
served, at the Corporate Trust Office, and the Issuer hereby appoints the
Trustee as its agent to receive all such surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices
or agencies (in or outside the City of New York) where the Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that (i) no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in the Borough of Manhattan, the City of New York, the State
of New York, for the purposes set forth in the preceding paragraph, (ii)
presentations or surrenders of Notes for payment may be made only in the City of
New York, the State of New York or at the Corporate Trust Office of the Trustee
and (iii) any designation of an office or agency for payment of Notes shall be
subject to Section 3.03. The Issuer will give prompt written notice to the
Trustee [and the Insurer] of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 3.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
All payments of amounts due and payable with respect to any Notes which are
to be made from amounts withdrawn from the Distribution Account pursuant to
Section 8.02(c) or Section 5.08 shall be made on behalf of the Issuer by the
Trustee or by a Paying Agent, and no amounts so withdrawn from the Distribution
Account for payments of Notes shall be paid over to the Issuer under any
circumstances except as provided in this Section 3.03 or in Section 5.08.
If the Issuer shall have a Paying Agent that is not also the Note
Registrar, it shall furnish, or cause the Note Registrar to furnish, no later
than the fifth calendar day after each Record Date or the first Business Day
after a Record Date applicable to a Payment Date on which the Notes will be
redeemed in full, a list, in such form as such Paying Agent may reasonably
require, of the names and addresses of the Holders of Notes and of the number of
Individual Notes of each Class held by each such Holder.
Whenever the Issuer shall have a Paying Agent other than the Trustee, it
will, on or before the Business Day next preceding each Payment Date, direct the
Trustee to deposit with such Paying Agent an aggregate sum sufficient to pay the
amounts then becoming due (to the extent funds are then available for such
purpose in the Distribution Account), such sum to be held in trust for the
benefit of the Persons entitled thereto. Any moneys deposited with a Paying
Agent in excess of an amount sufficient to pay the amounts then becoming due on
the Notes with respect to which such deposit was made shall, upon Issuer Order,
be paid over by such Paying Agent to the Trustee for application in accordance
with Article VIII.
Any Paying Agent other than the Trustee shall be appointed by Issuer
Order[, subject to the Insurer's written consent, provided, that, no Insurer
Default shall have occurred and be continuing]. The Trustee is hereby appointed
as the initial Paying Agent. The Issuer shall not appoint any Paying Agent which
is not, at the time of such appointment, a depository institution or trust
company whose obligations would be Permitted Investments pursuant to clause (iv)
of the definition of the term "Permitted Investments". The Issuer will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee (and if
the Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(1) allocate all sums received for payment to the Holders of Notes on
each Payment Date among such Holders in the proportion specified in the
applicable Payment Date Statement, as the case may be, in each case to the
extent permitted by applicable law;
(2) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(3) if such Paying Agent is not the Trustee, immediately resign as a
Paying Agent and forthwith pay to the Trustee all sums held by it in trust
for the payment of the Notes if at any time it ceases to meet the standards
set forth above required to be met by a Paying Agent at the time of its
appointment;
(4) if such Paying Agent is not the Trustee, give the Trustee notice
of any Default by the Issuer (or any other obligor upon the Notes) in the
making of any payment required to be made with respect to any Notes for
which it is acting as Paying Agent;
(5) if such Paying Agent is not the Trustee, at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(6) comply with all requirements of the Code, and all regulations
thereunder, 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;
provided, however, that with respect to withholding and reporting
requirements applicable to original issue discount (if any) on any Class of
Notes, the Issuer has provided the calculations pertaining thereto to the
Trustee.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or any other purpose, by Issuer Order direct any
Paying Agent, if other than the Trustee, to pay to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by such Paying Agent; and upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable escheat laws, any money held by the Trustee or any
Paying Agent in trust for the payment of any amount due with respect to any Note
and remaining unclaimed for six years after such amount has become due and
payable to the Holder of such Note shall be discharged from such trust and, upon
its written request, paid to the Issuer; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Trustee or such Paying Agent with respect to such trust
money shall thereupon cease. The Trustee may, but shall not be required to,
adopt and employ, at the expense of the Issuer, any reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Trustee or any
Agent, at the last address of record for each such Holder).
SECTION 3.04. CORPORATE EXISTENCE OF OWNER TRUSTEE.
(a) Any corporation or association into which the Owner Trustee may be
merged or with which it may be consolidated, or any corporation or association
resulting from any merger or consolidation to which the Owner Trustee shall be a
party, shall be the successor Owner Trustee under this Indenture without the
execution or filing of any paper, instrument or further act to be done on the
part of the parties hereto, anything herein, or in any agreement relating to
such merger or consolidation, by which any such Owner Trustee may seek to retain
certain powers, rights and privileges therefore obtaining for any period of time
following such merger or consolidation, to the contrary notwithstanding.
(b) Any successor to the Owner Trustee appointed pursuant to Section 10.01
of the Deposit Trust Agreement shall be the successor Owner Trustee under this
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the Owner
Trustee in accordance with this Section 3.04, the Person formed by or surviving
such consolidation or merger (if other than the Issuer) or the Person succeeding
to the Owner Trustee under the Deposit Trust Agreement may exercise every right
and power of the Owner Trustee, on behalf of the Issuer, under this Indenture
with the same effect as if such Person had been named as the Owner Trustee
herein.
SECTION 3.05. PROTECTION OF TRUST ESTATE.
(a) The Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action as may be necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust Estate;
(ii) maintain or preserve the lien of this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iv) enforce any of the Mortgage Documents; or
(v) preserve and defend title to the Trust Estate and the rights of
the Trustee, and of the Noteholders [and the Insurer], in the Pledged
Mortgages and the other property held as part of the Trust Estate against
the claims of all Persons and parties.
The Issuer hereby designates the Trustee its agent and attorney-in-fact to
execute any financing statement, continuation statement or other instrument
required pursuant to this Section 3.05; provided, however, that such designation
shall not be deemed to create a duty in the Trustee to monitor the compliance of
the Issuer with the foregoing covenants; and provided further, however, that the
duty of the Trustee to execute any instrument required pursuant to this Section
3.05 shall arise only if the Trustee has knowledge pursuant to Section 6.01(d)
of the occurrence of a failure of the Issuer to comply with provisions of this
Section 3.05.
(b) Except as permitted by Section 8.08, the 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 3.06 (or from the jurisdiction in which it was held, or to which it is
intended to be removed, as described in the Opinion of Counsel delivered at the
Closing Date pursuant to Section 2.12(c), if no Opinion of Counsel has yet been
delivered pursuant to Section 3.06) or cause or permit ownership or the pledge
of any portion of the Trust Estate that consists of book-entry securities to be
recorded on the books of a Person located in a different jurisdiction from the
jurisdiction in which such ownership or pledge was recorded at such time unless
the Trustee [and the Insurer] shall have first received an Opinion of Counsel to
the effect that the lien and security interest created by this Indenture with
respect to such property will continue to be maintained after giving effect to
such action or actions.
SECTION 3.06. OPINIONS AS TO TRUST ESTATE.
On or before May 15 in each calendar year, beginning with the first
calendar year commencing more than three months after the Closing Date, the
Issuer shall furnish to the Trustee [and the Insurer] an Opinion of Counsel
reasonably satisfactory in form and substance to the Trustee [and the Insurer]
either stating that, in the opinion of such counsel, such action has been taken
as is necessary to maintain the lien and security interest created by this
Indenture and reciting the details of such action or stating that in the opinion
of such counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe all such actions, if any,
that will, in the opinion of such counsel, be required to be taken to maintain
the lien and security interest of this Indenture with respect to the Trust
Estate until May 15 in the following calendar year.
SECTION 3.07. PERFORMANCE OF OBLIGATIONS; MASTER SERVICING AGREEMENT.
(a) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in the Deposit Trust Agreement and the Swap Agreement.
The Issuer and the Trustee shall punctually perform and observe all of their
respective obligations and agreements contained in the Administration Agreement.
(b) The Issuer shall not take any action and will use its reasonable good
faith efforts not to permit any action to be taken by others that would release
any Person from any of such Person's covenants or obligations under any of the
Mortgage Documents 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 Mortgage
Documents, except as expressly provided or permitted in this Indenture, the
Master Servicing Agreement, the Administration Agreement or such Mortgage
Document or other instrument, or unless such action will not adversely affect
the interests of the Holders of the Notes[, the Swap Provider and the Insurer
(unless an Insurer Default has occurred and is continuing), and the Insurer
(unless an Insurer Default has occurred and is continuing) shall have consented
in writing thereto].
(c) The Issuer shall monitor the performance of the Master Servicer under
the Master Servicing Agreement, and shall use its reasonable good faith efforts
to cause the Master Servicer duly and punctually to perform all of its duties
and obligations thereunder. Upon the occurrence of a Master Servicer Default of
which an Authorized Officer of the Issuer has actual knowledge under the Master
Servicing Agreement, the Issuer shall promptly notify the Trustee [and the
Insurer], and shall, [subject to the prior written consent of the Insurer so
long as no Insurer Default has occurred and is continuing,] specify in such
notice the action, if any, the Issuer is taking in respect of such Master
Servicer Default. So long as any such Master Servicer Default shall be
continuing [and subject to the prior written consent of the Insurer so long as
no Insurer Default has occurred and is continuing,] the Trustee may (i)
terminate all of the rights and powers of the Master Servicer pursuant to the
applicable provisions of the Master Servicing Agreement; (ii) exercise any
rights it may have to enforce the Master Servicing Agreement against the Master
Servicer; and/or (iii) waive any such Master Servicer Default under the Master
Servicing Agreement or take any other action with respect to such Master
Servicer Default as is permitted thereunder.
(d) Upon any termination by the Trustee of the Master Servicer's rights and
powers pursuant to the Master Servicing Agreement, the Trustee may appoint
itself as the successor Master Servicer and the rights and powers of the Master
Servicer with respect to the Pledged Mortgages shall vest in the Trustee. Under
such circumstances, the Trustee shall be the successor in all respects to the
Master Servicer with respect to the Pledged Mortgages under the Master Servicing
Agreement until the Trustee shall have appointed, with the consent of the
Issuer, such consent not to be unreasonably withheld, and the Rating Agencies
[and the Insurer, provided, however, with respect to the Insurer such consent
shall not be required if an Insurer Default shall have occurred and be
continuing,] and in accordance with the applicable provisions of the Master
Servicing Agreement, a new Person to serve as successor Master Servicer. The
Trustee, at its option, may elect to continue to serve as successor Master
Servicer under the Master Servicing Agreement.
(e) Upon any termination of the Master Servicer's rights and powers
pursuant to the Master Servicing Agreement, the Trustee shall promptly notify
the Issuer[, the Insurer] and the Rating Agencies, specifying in such notice
that the Trustee or any successor Master Servicer, as the case may be, has
succeeded the Master Servicer under the Master Servicing Agreement, which notice
shall also specify the name and address of any such successor Master Servicer.
SECTION 3.08. INVESTMENT COMPANY ACT.
The Issuer shall at all times conduct its operations so as not to be
subject to the Investment Company Act of 1940, as amended (or any successor
statute), and the rules and regulations thereunder.
SECTION 3.09. NEGATIVE COVENANTS.
The Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any portion of the
Trust Estate, or merge or consolidate with another entity, except as expressly
permitted by this Indenture or the Administration Agreement, unless the Issuer
[and the Insurer] have received an Opinion of Counsel (and have delivered a copy
thereof to the Trustee) to the effect that such transaction will not (A) result
in a "substantial modification" of the Notes under Treasury Regulation Section
1.1001-3, or adversely affect the status of the Notes as indebtedness for
federal income tax purposes, or (B) if 100% of the Investor Certificates are not
owned by the Depositor, cause the Trust Estate to be subject to an entity level
tax for federal income tax purposes;
(b) claim any credit on, or make any deduction from, the principal of, or
interest on, any of the Notes by reason of the payment of any taxes levied or
assessed upon any portion of the Trust Estate;
(c) engage in any business or activity other than in connection with, or
relating to, the issuance of the Notes and the Investor Certificate pursuant to
this Indenture and the Deposit Trust Agreement, respectively[, or the obligation
to pay certain amounts to the Swap Provider pursuant to the Swap Agreement, or
amend Section 2.03 or Section 10.01 of the Deposit Trust Agreement as in effect
on the Closing Date without, in each case, the consent of the Insurer (unless an
Insurer Default has occurred and is continuing)] and the consent of the Holders
of 662/3% of the aggregate Principal Amount of the Notes then Outstanding;
(d) incur any indebtedness or assume or guaranty any indebtedness of any
Person, except for such indebtedness as may be incurred by the Issuer in
connection with the issuance of the Notes pursuant to this Indenture;
(e) dissolve or liquidate in whole or in part; or
(f) (i) permit the validity or effectiveness of this Indenture or any Grant
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 under this Indenture, except as may
be expressly permitted hereby, (ii) permit any lien, charge, security interest,
mortgage or other encumbrance (other than the lien of this Indenture, the lien
created by Section 8.04 of the Deposit Trust Agreement, as in effect on the
Closing Date, or any Permitted Encumbrance) to be created on or extended 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 perfected first priority security interest
in the Trust Estate.
SECTION 3.10. ANNUAL STATEMENT AS TO COMPLIANCE.
On or before 120 days after the end of the first fiscal year of the Issuer
which ends more than three months after the Closing Date, and each fiscal year
thereafter, the Issuer shall deliver to the Trustee [and the Insurer, unless an
Insurer Default has occurred and is continuing,] a written statement, signed by
an Authorized Officer, stating that:
(1) a review of the fulfillment by the Issuer during such year of its
obligations under this Indenture has been made under such officer's
supervision; and
(2) to the best of such officer's knowledge, based on such review, the
Issuer has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a Default in the fulfillment of any such
obligation, specifying each such Default known to such officer and the
nature and status thereof.
SECTION 3.11. RECORDING OF ASSIGNMENTS.
The Issuer shall cause the Assignments of the Pledged Mortgages securing
the Notes to be duly recorded in the manner specified in Section 2(a)(i) of the
Administration Agreement. If the Issuer fails to cause the Assignments to be
recorded within the time limit provided thereunder, the Issuer shall purchase
such corresponding Pledged Mortgages pursuant to Section 8.04 and the applicable
provisions of the Administration Agreement.
SECTION 3.12. LIMITATION OF LIABILITY OF________________________ .
It is expressly understood and agreed by the parties hereto that (a) this
Indenture is executed and delivered by ________________________, not
individually or personally but solely as owner trustee of
________________________ under the Deposit Trust Agreement, in the exercise of
the powers and authority conferred and vested in it as Owner Trustee, (b) each
of the representations, undertakings and agreements herein made on the part of
the Issuer is made and intended not as personal representations, undertakings
and agreements by ________________________, but is made and intended for the
purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on ________________________, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any being expressly waived by the Trustee, [the
Insurer,] and the Noteholders and by any Person claiming by, through or under
the Trustee, [the Insurer,] and the Noteholders and (d) under no circumstances
shall ________________________ be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or the other Operative Agreements.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
Whenever the following conditions shall have been satisfied:
(1) either
(A) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.08, and (ii) Notes for whose
payment money has theretofore been deposited in trust and thereafter repaid
to the Issuer, as provided in Section 3.03) have been delivered to the
Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at the Stated Maturity of the
final installment of the principal thereof within one year, or
(iii) are to be called for redemption within one year under
irrevocable arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Issuer,
and the Issuer, in the case of clause (B)(i), (B)(ii) or (B)(iii)
above, has deposited or caused to be deposited with the Trustee, in trust
for such purpose, an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the Stated Maturity of their
entire unpaid principal amount or to the applicable Redemption Date, as the
case may be, and in the case of Notes which were not paid at the Stated
Maturity of their entire unpaid principal amount, for all overdue principal
and all interest payable on such Notes to the next succeeding Payment Date
therefor;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee [and the Insurer (unless
an Insurer Default has occurred and is continuing),] an Officers'
Certificate and an Opinion of Counsel reasonably satisfactory in form and
substance to the Trustee each stating that all conditions precedent herein
providing for the satisfaction and discharge of this Indenture have been
complied with;
then, upon Issuer Request, this Indenture and the lien, rights and interests
created hereby shall cease to be of further effect, and the Trustee and each
co-trustee and separate trustee, if any, then acting as such hereunder shall, at
the expense of the Issuer, execute and deliver all such instruments as may be
necessary to acknowledge the satisfaction and discharge of this Indenture and
shall pay, or assign or transfer and deliver, to the Issuer or upon Issuer Order
all Pledged Mortgages, cash, securities and other property held by it as part of
the Trust Estate remaining after satisfaction of the conditions set forth in
clauses (1) and (2) above.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 6.07, the obligations of
the Trustee to the Issuer and the Holders of Notes under Section 3.03, the
obligations of the Trustee to the Holders of Notes under Section 4.02 and the
provisions of Article II with respect to lost, stolen, destroyed or mutilated
Notes, registration of transfers of Notes and rights to receive payments of
principal of, and interest on, the Notes shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Sections 3.03 and 4.01
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent, as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
the Trustee.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. EVENT OF DEFAULT.
"Event of Default", wherever used herein, means, with respect to Notes
issued hereunder, any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) if the Issuer shall
(A) default in the payment when and as due of any installment of
principal of or interest on any Note and such default shall continue
for ______ days, or
(B) default in the payment of the Redemption Price of any Note
which has been called for redemption pursuant to Article X;
(2) if the Issuer shall breach, or default in the due observance, of
any one or more of the covenants set forth in clauses (a) through (e) of
Section 3.09;
(3) if the Issuer shall breach, or default in any material respect in
the due observance or performance of, any other of its covenants in this
Indenture and such Default shall continue for a period of 30 days (such 30
day period to be automatically extended for 30 days upon delivery by the
Issuer of an Officers' Certificate setting forth the steps being taken and
stating the default is curable, to the Trustee [and, provided no Insurer
Default has occurred and is continuing, to the Insurer]) after there shall
have been given, by registered or certified mail, to the Issuer [and the
Insurer by the Trustee, or to the Issuer and the Trustee by the Insurer,
or, during the existence of an Insurer Default] by the Holders of Notes
representing more than 50% of the aggregate Principal Amount of the Notes,
a written notice specifying such Default and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(4) if any representation or warranty of the Issuer made in this
Indenture, or any certificate or other writing delivered pursuant hereto or
in connection herewith shall prove to be incorrect in any material respect
as of the time when the same shall have been made and, within 30 days (such
30 day period to be automatically extended for 30 days upon delivery by the
Issuer of an Officers' Certificate setting forth the steps being taken and
stating the default is curable, to the Trustee and[, provided no Insurer
Default has occurred and is continuing, to the Insurer)] after there shall
have been given, by registered or certified mail, written notice thereof to
the Issuer [and the Insurer by the Trustee, or to the Issuer and the
Trustee by the Insurer, or, during the existence of an Insurer Default,] by
the Holders of Notes representing more than 50% of the aggregate Principal
Amount of the Notes, the circumstance or condition in respect of which such
representation or warranty was incorrect shall not have been eliminated or
otherwise cured;
(5) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Issuer in an involuntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other
present or future federal or state bankruptcy, insolvency or similar law,
or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or of any substantial
part of its property, or ordering the winding up or liquidation of the
affairs of the Issuer and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Issuer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other
present or future federal or state bankruptcy, insolvency or similar law,
or the consent by the Issuer to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or of any substantial part of its property
or the making by the Issuer of an assignment for the benefit of creditors
or the failure by the Issuer generally to pay its debts as such debts
become due or the taking of corporate action by the Issuer in furtherance
of any of the foregoing.
(a) [Reserved]
[(b) Notwithstanding the foregoing, the failure of the Issuer to pay
when and as due any installment of principal of (regardless of the lapse of
any grace period) any Note shall not constitute an Event of Default
hereunder unless the Principal Amount of the Notes after application of all
available amounts on deposit in the Distribution Account on a Payment Date
exceeds the Pool Principal Balance with respect to such Payment Date or the
aggregate Principal Amount of the Notes is not paid in full on the Stated
Maturity. Subject to the foregoing, Section 5.01 of the Indenture shall
otherwise apply in all respects to the Notes.]
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
Subject to Section 12.01(a)(vi) hereof, if an Event of Default occurs and
is continuing with respect to the Notes, then and in every such case the Trustee
or the Holders of Notes representing more than 50% of the aggregate Principal
Amount of the Notes may declare all the Notes to be immediately due and payable,
provided, however, that if an [Insurer Default] shall have occurred and is
continuing, such declaration may not have occurred prior to the 45th day after
the occurrence of the applicable Event of Default, by a notice in writing to the
Issuer (and to the Trustee if given by Noteholders), and upon any such
declaration such Notes shall become immediately due and payable in an amount
equal to:
(i) the aggregate Principal Amount of all Classes of Notes,
(ii) accrued and unpaid interest at the Class A-1 Interest Rate or
Class A-2 Interest Rate, as applicable, on the aggregate Principal Amounts
through the date of acceleration, and
(iii) interest (but only to the extent payment thereof shall be
legally enforceable) on any overdue installments of interest on the Notes
from the due date of any such installments to the date of the acceleration
at the Note Interest Rate at which such interest accrued or such lower rate
at which payment of such interest shall be legally enforceable.
At any time after such a declaration of acceleration of maturity of the
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, [the
Insurer or, in the case of an Insurer Default,] the Holders of Notes
representing more than 50% of the aggregate Principal Amount of the Notes, by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Issuer has paid or deposited with the Trustee a sum sufficient
to pay:
(A) all payments of principal of, and interest on, all Notes and
all other amounts which would then be due hereunder or upon such Notes
if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the nonpayment of the principal
of Notes which have become due solely by such acceleration, have been cured
or waived as provided in Section 5.15.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Issuer covenants that if an Event of Default shall occur and be
continuing in respect to the Notes and the Notes have been declared due and
payable and such declaration and its consequences have not been rescinded and
annulled, the Issuer will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of the Notes:
(i) the amounts specified in the first paragraph of Section 5.02, and
(ii) 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 Trustee, its
agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, [and at the
direction of the Insurer (unless an Insurer Default shall have occurred and be
continuing),] may institute a Proceeding for the collection of the sums so due
and unpaid, and may prosecute such Proceeding to judgment or final decree, and
may enforce the same against the Issuer or any other obligor upon the Notes and
collect, out of the Trust Estate (as defined in the Deposit Trust Agreement),
wherever situated, of the Issuer, the moneys adjudged or decreed to be payable
in the manner provided by law; provided, however, that neither the Bank nor any
of its agents, officers, directors, employees, successors or assigns shall be
personally liable for any amounts due under the Notes or this Indenture.
If an Event of Default occurs and is continuing, [the Trustee shall, with
the prior written consent of the Insurer, or, in the case of an Insurer
Default,] the Trustee may proceed to protect and enforce its rights and the
rights of the Noteholders by any Proceedings the Trustee deems appropriate to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or enforce any other proper remedy, including, without
limitation, instituting a Proceeding prior to any declaration of acceleration of
the Stated Maturity of the Notes for the collection of all amounts then due and
unpaid on such Notes, prosecuting such Proceeding to final judgment or decree,
enforcing the same against the Issuer and collecting out of the property,
wherever situated, of the Issuer the moneys adjudged or decreed to be payable in
the manner provided by law.
SECTION 5.04. REMEDIES.
Subject to the rights of the [Insurer] under Article XII hereof, if an
Event of Default shall have occurred and be continuing and the Notes have been
declared due and payable and such declaration and its consequences have not been
rescinded and annulled, the Trustee (subject to Section 5.18, to the extent
applicable) may do one or more of the following:
(a) institute Proceedings for the collection of all amounts then payable on
the Notes, or under this Indenture, whether by declaration or otherwise, enforce
any judgment obtained, and collect from the Issuer moneys adjudged due;
(b) in accordance with Section 5.18, sell the Trust Estate, other than the
Issuer's rights to receive net amounts payable under the Swap Agreement, or any
portion of the Trust Estate or rights or interest in the Trust Estate, at one or
more public or private Sales called and conducted in any manner permitted by
law;
(c) institute Proceedings from time to time for the complete or partial
foreclosure of this Indenture with respect to the Trust Estate; and
(d) exercise any remedies of a secured party under the Uniform Commercial
Code and take any other appropriate action to protect and enforce the rights and
remedies of the Trustee or the Holders of the Notes hereunder,
provided, however, subject to the rights of the [Insurer] under Article XII
hereof, that prior to exercising the foregoing, the Trustee shall have consulted
with the Issuer concerning alternative pay down scenarios but in no event shall
such consultation in any way restrict the rights of the [Insurer] to exercise
the remedies set forth in this Section 5.04.
SECTION 5.05. [RESERVED].
SECTION 5.06. TRUSTEE MAY FILE PROOFS OF CLAIM.
Subject to Article XII hereof, [including the rights of the
Insurer thereunder,] and in case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, composition or
other judicial Proceeding relative to the Issuer or any other obligor upon any
of the Notes or the property of the Issuer or of such other obligor or their
creditors, the Trustee (irrespective of whether the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
any overdue principal or interest) shall be entitled and empowered, by
intervention in such Proceeding or otherwise to:
(i) file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and file such other
papers or documents and take such other actions as it deems necessary or
advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Noteholders allowed in such
Proceeding; and
(ii) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
receiver, assignee, trustee, liquidator or sequestrator (or other similar
official) in any such Proceeding is hereby authorized by each Noteholder to
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay
to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting any of the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Noteholder in any such Proceeding.
SECTION 5.07. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or any of the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any Proceeding relating thereto, and any
such Proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered. Any surplus shall be available, in accordance with Section
5.08, for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 5.08. APPLICATION OF MONEY COLLECTED.
If the Notes have been declared due and payable following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, any money collected by the Trustee with respect to the Notes pursuant
to this Article or otherwise and any monies that may then be held or thereafter
received by the Trustee with respect to the Notes shall be applied, after
payment to the Trustee of such amounts as may be payable to it under Section
6.07, in the order, at the date or dates fixed by the Trustee and, in case of
the distribution of the entire amount due on account of principal of, and
interest on, such Notes, upon presentation and surrender thereof:
First: To the payment of amounts then due and unpaid to the Master
Servicer in respect of Nonrecoverable Advances made by the Master Servicer
pursuant to the Master Servicing Agreement;
Second: To the payment of any amounts then due and owing to the Swap
Provider pursuant to the Swap Agreement;
Third: To the payment of amounts of interest and principal then due
and unpaid upon the Outstanding Notes in accordance with the priorities set
forth in Section 2.03(b) [or otherwise due and owing to the Insurer]; and
Fourth: To the payment of the remainder, if any, to the Issuer or any
other Person legally entitled thereto.
SECTION 5.09. LIMITATION ON SUITS.
No Holder of a Note shall have any right to institute any Proceedings,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
[and the Insurer (unless an Insurer Default has occurred and is
continuing)] of a continuing Event of Default;
(2) the Holders of Notes representing more than 50% of the aggregate
Principal Amount of the Notes[, with the prior written consent of the
Insurer (unless an Insurer Default has occurred and is continuing),] shall
have made written request to the Trustee to institute Proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity in
full against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such Proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by [the Insurer or] the Holders of
Notes representing more than 50% of the aggregate Principal Amount of the
Notes [in the case of an Insurer Default];
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing themselves of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all the
Holders of Notes.
SECTION 5.10. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, other than the
provisions hereof limiting the right to recover amounts due on a Note to
recovery from the property of the Issuer, the Holder of any Note shall have the
right, to the extent permitted by applicable law, which right is absolute and
unconditional, to receive payment of each installment of interest on such Note
on the respective Stated Maturities of such installments of interest, to receive
payment of each installment of principal of such Note when due (or, in the case
of any Note called for redemption, on the date fixed for such redemption) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
SECTION 5.11. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee[, the Insurer] or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee[, the Insurer] or to such Noteholder, then
and in every such case the Issuer, the Trustee[, the Insurer (unless an Insurer
Default has occurred and is continuing)] 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
Trustee[, the Insurer] and the Noteholders shall continue as though no such
Proceeding had been instituted.
SECTION 5.12. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee[, the
Insurer] or to the Noteholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.13. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee[, the Insurer] or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Noteholders, as the case may be.
SECTION 5.14. CONTROL BY NOTEHOLDERS.
[Subject to the rights of the Insurer under Article XII hereof,] the
Holders of Notes representing more than 50% of the aggregate Principal Amount of
the Notes shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided, however, that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) any direction to the Trustee to undertake a Sale of the Trust
Estate shall be by the Holders of Notes representing the percentage of the
aggregate Principal Amount of the Notes specified in Section 5.18(b)(1),
unless Section 5.18(b)(2) is applicable; and
(3) [Reserved];
(4) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; provided, however, that,
subject to Section 6.01, the Trustee need not take any action which it
determines might involve it in liability or be unjustly prejudicial to the
Noteholders not consenting.
SECTION 5.15. WAIVER OF PAST DEFAULTS.
[Subject to the rights of the Insurer under Article XII hereof,] the
Holders of Notes representing more than 50% of the aggregate Principal Amount of
the Notes may waive any past Default hereunder and its consequences, except a
Default:
(1) in the payment of any installment of principal of, or interest on,
any Note; or
(2) in respect of a covenant or provision hereof which under Section
9.02 cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 5.16. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by his or
her acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate Notes representing more than 10% of the aggregate
Principal Amount of the Notes, or to any suit instituted by any Noteholder for
the enforcement of the payment of any installment of interest on any Note on or
after the Stated Maturity thereof expressed in such Note or for the enforcement
of the payment of any installment of principal of any Note when due (or, in the
case of any Note called for redemption, on or after the applicable redemption
date).
SECTION 5.17. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension of law wherever enacted,
now or at any time hereafter in force, which may affect the covenants in, or the
performance of, this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.18. SALE OF TRUST ESTATE.
(a) The power to effect any sale (a "Sale") of any portion of the Trust
Estate pursuant to Section 5.04 shall not be exhausted by any one or more Sales
as to any portion of the Trust Estate remaining unsold, but shall continue
unimpaired until the entire Trust Estate shall have been sold or all amounts
payable on the Notes and under this Indenture with respect thereto shall have
been paid. The Trustee may from time to time postpone any public Sale by public
announcement made at the time and place of such Sale. The Trustee hereby
expressly waives its right to any amount fixed by law as compensation for any
Sale.
(b) To the extent permitted by law, the Trustee shall not in any private
Sale sell or otherwise dispose of the Trust Estate, or any portion thereof,
unless:
(1) the Holders of all Notes consent to, or direct the Trustee to
make, such Sale; or
(2) the proceeds of such Sale would be not less than the entire amount
which would be distributable to the Holders of the Notes, in full payment
thereof in accordance with Section 5.08, on the Payment Date next
succeeding the date of such Sale.
(3) [Reserved]
The purchase by the Trustee of all or any portion of the Trust
Estate at a private Sale shall not be deemed a Sale or disposition thereof for
purposes of this Section 5.18(b).
(c) Unless the Holders of all Notes have otherwise consented or directed
the Trustee, at any public Sale of all or any portion of the Trust Estate at
which a minimum bid equal to or greater than the amount described in paragraph
(2) of subsection (b) of this Section 5.18 has not been established by the
Trustee and no Person bids an amount equal to or greater than such amount, the
Trustee shall bid an amount at least $1.00 more than the highest other bid.
(d) In connection with a Sale of all or any portion of the Trust Estate:
(1) any Holder or Holders of Notes or _______________________, as
manager under the Management Agreement[, or the Insurer] 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 amount so payable thereon
shall be less than the amount due thereon, shall be returned to the Holders
thereof after being appropriately stamped to show such partial payment;
(2) the Trustee may bid for and acquire the property offered for Sale
in connection with any public Sale thereof, and, in lieu of paying cash
therefor, may make settlement for the purchase price by crediting the gross
Sale price against the sum of (A) the amount which would be distributable
to the Holders of the Notes as a result of such Sale in accordance with
Section 5.08 on the Payment Date next succeeding the date of such Sale and
(B) the expenses of the Sale and of any Proceedings in connection therewith
which are reimbursable to it, without being required to produce the Notes
in order to complete any such Sale or in order for the net Sale price to be
credited against such Notes, and any property so acquired by the Trustee
shall be held and dealt with by it in accordance with the provisions of
this Indenture;
(3) the Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Trust Estate in
connection with a Sale thereof;
(4) the Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its interest in any
portion of the Trust Estate in connection with a Sale thereof, and to take
all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to
ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
SECTION 5.19. ACTION ON NOTES.
The Trustee's right to seek and recover judgment under this Indenture shall
not be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the lien of this Indenture nor
any rights or remedies of the Trustee[, the Insurer] or the Holders of Notes
shall be impaired by the recovery of any judgment by the Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs. [If an Insurer Default has occurred and is continuing the Trustee shall
use reasonable efforts to locate an additional insurer; provided that no
additional insurance policy to the Insurer's Policy shall be accepted unless the
Rating Agencies shall have provided written confirmation that, upon such policy
being in force, the ratings on the Notes would be in the highest rating category
of each such agency and the Issuer has consented to such additional insurer.]
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and no implied covenants or
obligations shall be read into this Indenture; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee shall, however, examine such certificates and opinions to determine
whether they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of subsection (b) of this
Section;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) The 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 5.14 or Section 5.18;
(4) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith at the direction of Noteholders [or
the Insurer].
(d) Except with respect to duties of the Trustee prescribed by the TIA, as
to which this Section 6.01(d) shall not apply, for all purposes under this
Indenture, the Trustee shall not be deemed to have notice or knowledge of any
Event of Default described in Section 5.01(2), 5.01(5) or 5.01(6) or any Default
described in Section 5.01(3) or 5.01(4) or any Master Servicer Default or unless
a Responsible Officer assigned to and working in the Trustee's corporate trust
department has actual knowledge thereof or unless written notice of any event
which is in fact such an Event of Default, Master Servicer Default or default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Notes generally, the Issuer, the Trust Estate or this Indenture.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. In determining that such repayment or indemnity is not reasonably
assured to it, the Trustee must consider not only the likelihood of repayment or
indemnity by or on behalf of the Issuer but also the likelihood of repayment or
indemnity from amounts payable to it from the Trust Estate pursuant to Sections
6.07 and 8.02(d); provided, however, that, except as provided in the first
sentence of this Section 6.01(e), the Trustee shall not refuse or fail to
perform any of its duties hereunder solely as a result of nonpayment of its
reasonable fees and expenses; and provided further, however, that nothing in
this Section 6.01(e) shall be construed to limit the exercise by the Trustee of
any right or remedy permitted under this Indenture or otherwise in the event of
the Issuer's failure to pay the amounts due the Trustee pursuant to Section
6.07.
(f) Every provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of this Section.
(g) Notwithstanding any extinguishment of all right, title and interest of
the Issuer in and to the Trust Estate following an Event of Default and a
consequent declaration of acceleration of the Stated Maturity of the Notes,
whether such extinguishment occurs through a Sale of the Trust Estate to another
Person, the acquisition of the Trust Estate by the Trustee or otherwise, the
rights, powers and duties of the Trustee with respect to the Trust Estate (or
the proceeds thereof) and the Noteholders [and the Insurer] and the rights of
Noteholders [and the Insurer] shall continue to be governed by the terms of this
Indenture.
SECTION 6.02. NOTICE OF DEFAULT.
Upon the Trustee obtaining knowledge of the occurrence of any Default, the
Trustee shall furnish the Issuer [and the Insurer] with notice of each such
Default, and one Business Day thereafter shall transmit by mail to all Holders
of Notes notice of each such default; provided, however, that except in the case
of a Default of the type described in Section 5.01(1), the Trustee shall be
protected in withholding such notice to all Holders of Notes if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of the
Notes; [and provided, further, that the Trustee shall not withhold such notice
from the Insurer; and provided, further, that in the case of any Default of the
character specified in Section 5.01(3) or 5.01(4) no such notice to the Insurer
and Holders of the Notes shall be given until at least 30 days after the
occurrence thereof.] Concurrently with the mailing of any such notice to [the
Insurer and the] Holders of the Notes, the Trustee shall transmit by mail a copy
of such notice to the Rating Agencies.
SECTION 6.03. RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.01 hereof:
(a) the Trustee may request and rely upon and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order, and any resolution
of the board of directors may be sufficiently evidenced by a written resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate or the Officer's Certificate of the Master Servicer;
(d) the Trustee may consult with counsel, and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request or direction of any of
the Noteholders [or the Insurer] pursuant to this Indenture, unless such
Noteholders [or the Insurer] shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the 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, direction, consent, order, bond, note or other
paper or document, but the Trustee, in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, on reasonable prior notice to the Issuer, to examine the
books, records and premises of the Issuer, personally or by agent or attorney,
during the Issuer's normal business hours; provided that the Trustee shall and
shall cause its agents to hold in confidence all such information except to the
extent disclosure may be required by law and except to the extent that the
Trustee, in its sole judgment, may determine that such disclosure is consistent
with its obligations hereunder;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall remain liable for the
execution and performance of any powers and duties by the Trustee directly or by
or through agents or attorneys appointed and supervised by the Trustee
hereunder;
(h) the 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;
(i) prior to the time that one of its Responsible Officers obtains actual
knowledge of a Master Servicer Default or a failure by the Master Servicer
thereunder which with notice and the passage of time will become a Master
Servicer Default, the Trustee shall not be responsible for taking action with
respect thereto;
(j) the Trustee shall not be responsible for supervising, monitoring or
reviewing the Master Servicer's performance of its duties under the Master
Servicing Agreement except to the extent of determining (i) that the periodic
reports, certificates and opinions required to be delivered by the Master
Servicer to it thereunder are delivered in timely fashion and conform to the
requirements of the Master Servicing Agreement and (ii) that the amounts
received by it from the Master Servicer for deposit in the Distribution Account
during any month are as shown in the Master Servicer's report for such month;
and
(k) the provisions of this Section, other than clauses (e), (i) and (j),
and of Sections 6.01(b) and (c) shall apply to the Trustee as it may be
successor Master Servicer under the Master Servicing Agreement.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the certificates of
authentication on the Notes, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations with respect to the Trust Estate or as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee shall not be
accountable for the use or application by the Issuer of the Notes or the
proceeds thereof or any money paid to the Issuer or upon Issuer Order pursuant
to the provisions hereof.
The Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Pledged
Mortgage, any Mortgage, any item of Additional Collateral and Insurance Policy,
or any other item of collateral under this Indenture or the perfection and
priority of any item of the Trust Estate or the maintenance of any such
perfection and priority or for or with respect to the sufficiency of the Trust
Estate or its ability to generate the payment to be distributed to Noteholders
under this Indenture, including, without limitation: the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon; the validity of the assignment of any Pledged Mortgage
to the Trustee or of any intervening assignment; the completeness of any Pledged
Mortgage; the performance or enforcement of any Pledged Mortgage, the compliance
by the Issuer or the Master Servicer with any warranty or representation made
under this Indenture, the Administrator Agreement, the Master Servicing
Agreement or any other agreement or in any related document or the accuracy of
any such warranty or representation; any investment of monies by or at the
direction of the Issuer or the Master Servicer or any loss resulting therefrom;
the acts or omissions of any of the Issuer, the Master Servicer, or any
Mortgagor; any action of the Master Servicer taken in the name of the Trustee;
the failure of the Master Servicer to act or perform any duties required of it
as agent of the Trustee hereunder; or any action by the Trustee taken in good
faith at the instruction of the Issuer, the Master Servicer [or the Insurer].
The Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or otherwise to perfect
or maintain the perfection of any security interest or lien granted to it
hereunder.
SECTION 6.05. MAY HOLD NOTES.
The Trustee, any Agent, or any other agent of the Issuer, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Issuer or any Affiliate of
the Issuer with the same rights it would have if it were not the Trustee, Agent
or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by this Indenture or by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Issuer and except to the extent of
income or other gain on investments which are obligations of the Trustee, in its
commercial capacity, and income or other gain actually received by the Trustee
on investments, which are obligations of others.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Issuer agrees to indemnify the Trustee and each of its directors,
officers, employee and agents for, and to hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their part,
arising out of, or in connection with, the acceptance or administration of this
trust, including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder[, provided, however that unless an Insurer Default exists, the
Trustee shall notify the Insurer of such legal action (provided that the failure
to notify the Insurer shall not waive the rights of the Trustee to
indemnification) and such indemnification by the Trustee out of the Note Account
shall be preconditioned on the Trustee's duty (i) to allow the Insurer to
control the defense or settlement of any such action and (ii) to allow the
Insurer to direct the Trustee with respect thereto; provided, further, that (a)
if the Insurer does not assume control of the defense of any such action within
a reasonable period of time after the filing of such action, the Trustee shall
have the right to act on its own in defending the action until such time as the
Insurer assumes control of the defense, (b) the Trustee along with the Insurer
shall have the right to consent to any counsel hired to defend the Trustee
(which consent of the Trustee shall not be unreasonably withheld) and (c) the
Trustee along with the Insurer shall have the right to consent to any settlement
if the amount of such settlement is less than full indemnification or the
Trustee would not be fully released from liability with respect to such action
as a result of such settlement. Any amounts payable to the Trustee and its
directors, officers, employees or agents, in respect of indemnification provided
by this paragraph, or pursuant to any other right of reimbursement from the Note
Account that the Trustee and its agents, may have hereunder in its capacity as
such, including but not limited to the following paragraph of this Section 6.07,
may be withdrawn by the Master Servicer or the Trustee from the Note Account and
paid to the Trustee, or its agents, at any time subject to a maximum amount of
$ in any calendar year pursuant to Section 3(c)(iii)(D) of the
Administration Agreement. Any such amounts due to the Trustee, or its agents, in
excess of $100,000 in such calendar year shall be reimbursable to the Trustee
pursuant to Section 3(c)(vii)(G) of the Administration Agreement].
As security for the performance of the obligations of the Issuer under this
Section, the Trustee shall have a lien ranking junior to the lien of the Notes
with respect to which any claim of the Trustee under this Section arose upon all
property and funds held or collected as part of the Trust Estate by the Trustee
in its capacity as such payable pursuant to Section 3(c)(vii)(G) of the
Administration Agreement. The Trustee shall not institute any Proceeding seeking
the enforcement of such lien against the Trust Estate unless such Proceeding is
in connection with a Proceeding in accordance with Article V for enforcement of
the lien of this Indenture after the occurrence of an Event of Default (other
than an Event of Default arising solely from the Issuer's failure to pay amounts
due the Trustee under this Section 6.07) and a resulting declaration of
acceleration of Stated Maturity of the Notes which has not been rescinded and
annulled.
SECTION 6.08. ELIGIBILITY; DISQUALIFICATION.
Irrespective of whether this Indenture is qualified under the TIA, this
Indenture shall always have a Trustee who satisfies the requirements of TIA
Sections 310(a)(1) and 310(a)(5). The Trustee shall always have a combined
capital and surplus as stated in Section 6.09. The Trustee shall be subject to
TIA Section 310(b).
SECTION 6.09. TRUSTEE'S CAPITAL AND SURPLUS.
The Trustee shall at all times have a combined capital and surplus of at
least $50,000,000 or shall be a member of a bank holding company system, the
aggregate combined capital and surplus of which is at least $50,000,000;
provided, however, that the Trustee's separate capital and surplus shall at all
times be at least the amount required by TIA Section 310(a)(2) if this Indenture
is qualified under the TIA. If the Trustee publishes annual reports of condition
of the type described in TIA Section 310(a)(2), its combined capital and surplus
for purposes of this Section 6.09 shall be as set forth in the latest such
report.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof to
the Issuer [and the Insurer]. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by (1) [the Insurer or (2) by]
Act of the Holders representing more than 662/3% of the aggregate Principal
Amount of the Notes[, with the prior written consent of the Insurer; provided,
however, the Insurer shall have no such right if an Insurer Default exists and
is continuing, delivered to the Trustee and to the Issuer].
(d) If at any time:
(1) the Trustee shall have a conflicting interest prohibited by
Section 6.08 and shall fail to resign or eliminate such conflicting
interest in accordance with Section 6.08 after written request therefor by
the Issuer[, the Insurer] or by any Noteholder; provided, however, that
this Section 6.10(d)(1) shall not be operative as part of this Indenture
unless and until this Indenture is qualified under the TIA, and until such
qualification this Indenture shall be construed as if this Section
6.10(d)(1) were not contained herein; or
(2) the Trustee shall cease to be eligible under Section 6.09 or shall
become incapable of acting or shall be adjudged a bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (i) the Issuer by an Issuer Order may remove the Trustee
or (ii) subject to Section 5.16, [the Insurer or] any Noteholder who has been a
bona fide Holder of a Note for at least six months may, on behalf of itself and
all others similarly situated[, and with the prior written consent of the
Insurer unless an Insurer Default exists and is continuing,] petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee, unless this Indenture is qualified under the TIA and the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA.
[(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Trustee for any cause, the
Issuer, by an Issuer Order and with the prior written consent of the Insurer
unless an Insurer Default exists and is continuing, shall promptly appoint a
successor Trustee. If within one year after such resignation, removal or
incapability or the occurrence of such vacancy a successor Trustee shall be
appointed by the Insurer or by Act of the Holders of Notes representing more
than 662/3% of the aggregate Principal Amount of the Notes and with the prior
written consent of the Insurer unless an Insurer Default exists and is
continuing, delivered to the Issuer and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Issuer. If no successor Trustee shall have been so appointed by the Issuer,
the Insurer or Noteholders and shall have accepted appointment in the manner
hereinafter provided, the Insurer or any Noteholder who has been a bona fide
Holder of a Note for at least six months may, on behalf of itself and all others
similarly situated and with the prior written consent of the Insurer unless an
Insurer Default exists and is continuing, petition any court of competent
jurisdiction for the appointment of a successor Trustee.]
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to [the Insurer and] the
Holders of Notes. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Issuer[, the Insurer] and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee. Notwithstanding the
foregoing, on request of the Issuer or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder subject
nevertheless to its lien, if any, provided for in Section 6.07. Upon request of
any such successor Trustee, the Issuer shall execute and deliver any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder[,
provided such corporation shall be otherwise qualified and eligible under this
Article and be acceptable to the Insurer, unless an Insurer Default has occurred
and is continuing, without the execution or filing of any paper or any further
act on the part of any of the parties hereto]. In case any Notes have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had authenticated such Notes.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIM AGAINST ISSUER.
If this Indenture is qualified under the TIA, the Trustee shall be subject
to TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b), and a Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
SECTION 6.14. CO-TRUSTEES AND SEPARATE TRUSTEES.
[Subject to the rights of the Insurer under Article XII hereof,] at any
time or times, for the purpose of meeting the legal requirements of the TIA or
of any jurisdiction in which any of the Trust Estate may at the time be located,
the Issuer and the Trustee shall have power to appoint, and, upon the written
request of the Trustee or of the Holders of Notes representing more than 50% of
the aggregate Principal Amount of the Notes with respect to which a co-trustee
or separate trustee is being appointed, the Issuer shall for such purpose join
with the Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the Trustee, of all or any
part of the Trust Estate, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Issuer does not join in such
appointment within 15 days after the receipt by it of a request to do so, or in
case an Event of Default has occurred and is continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument from the Issuer be required by any co-trustee
or separate trustee so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Issuer. Each notice shall include the name and address of any such co-trustee or
successor trustee.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms:
(1) The Notes shall be authenticated and delivered and all rights,
powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely
by the Trustee.
(2) The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
by the Trustee or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee
or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Trustee
shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(3) The Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Issuer evidenced by an Issuer Order, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case of an Event of Default has
occurred and is continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Issuer. Upon the written request of the Trustee, the
Issuer shall join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee which has resigned or has been removed may be appointed in
the manner provided in this Section.
(4) No co-trustee or separate trustee shall be required to satisfy the
eligibility requirements under Sections 6.08 and 6.09. No Trustee,
co-trustee or separate trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder.
(5) Any Act of Noteholders delivered to the Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
(6) The Issuer and the Trustee may each at any time accept the
resignation of or remove any co-trustee or separate trustee, except that
following an Event of Default, the Trustee acting alone may accept the
resignation of or remove any co-trustee or separate trustee.
SECTION 6.15. AUTHENTICATING AGENTS.
The Trustee may appoint an Authenticating Agent with power to act on its
behalf and subject to its direction in the authentication and delivery of the
Notes and in connection with transfers and exchanges under Sections 2.06 and
2.07, if any, as fully to all intents and purposes as though the Authenticating
Agent had been expressly authorized by those Sections to authenticate and
deliver Notes. For all purposes of this Indenture (other than in connection with
the authentication and delivery of Notes pursuant to Sections 2.05 and 2.12 in
connection with their initial issuance and for purposes of Section 2.08), the
authentication and delivery of Notes by the Authenticating Agent pursuant to
this Section shall be deemed to be the authentication and delivery of Notes "by
the Trustee".
Any Authenticating Agent may also serve as Note Registrar or co-Note
Registrar, as provided in Section 2.07. Any Authenticating Agent appointed by
the Trustee pursuant to the terms of this Section 6.15 or pursuant to the terms
of any supplemental indenture shall deliver to the Trustee as a condition
precedent to the effectiveness of such appointment an instrument accepting the
trusts, duties and responsibilities of Authenticating Agent (and, if applicable,
of Note Registrar or co-Note Registrar) and indemnifying the Trustee for and
holding the Trustee harmless against, any loss, liability or expense (including
reasonable attorneys' fees) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance, administration of the
trust or exercise of authority by such Authenticating Agent, Note Registrar or
co-Note Registrar.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any further act on the part of the
parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and the Issuer. The Trustee may at any time terminate
the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and the Issuer.
Any Authenticating Agent shall be entitled to reasonable compensation for
its services, and the Trustee shall be entitled to be reimbursed for such
payments, subject to Section 6.07. The provisions of Sections 2.10, 6.04 and
6.05 shall be applicable to any Authenticating Agent.
SECTION 6.16. PAYMENT OF CERTAIN INSURANCE PREMIUMS.
Notwithstanding anything to the contrary contained in this Indenture, the
Trustee agrees, for the benefit of the Holders of the Notes [and the Insurer,]
that, should it fail to receive notice from the Master Servicer, or the
applicable insurers, within the time period required pursuant to the Master
Servicing Agreement, to the effect that any premiums due with respect to any
Insurance Policies the premiums for which are required to be paid by the Master
Servicer from amounts on deposit in any related escrow account, or required to
be advanced by the Master Servicer, the Trustee shall proceed with diligence to
make inquiries of the Master Servicer, the Issuer and the applicable insurers as
to whether such premiums have been paid at the times set forth in the Master
Servicing Agreement. In the event such premiums have not been paid and the
coverage provided under the related Insurance Policy may be interrupted or
adversely affected, the Trustee agrees promptly to pay such premiums from
amounts on deposit in the Distribution Account in accordance with its
obligations under the applicable provisions of the Administration Agreement.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF NOTEHOLDERS.
(a) The Issuer shall furnish or cause to be furnished to the Trustee (i)
semi-annually, not less than 45 days nor more than 60 days after the Interest
Payment Date occurring closest to six months after the Closing Date and each
Interest Payment Date occurring at six-month intervals thereafter, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Notes and (ii) at such other times, as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a list
of similar form and content as of a date not more than 10 days prior to the time
such list is furnished; provided, however, that so long as the Trustee is the
Note Registrar, no such list shall be required to be furnished to the Trustee.
(b) In addition to furnishing to the Trustee the Noteholder lists, if any,
required under subsection (a), the Issuer shall also furnish all Noteholder
lists, if any, required under Section 3.03 at the times required by Section
3.03.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list, if any, furnished to the Trustee as provided
in Section 7.01 and the names and addresses of the Holders of Notes received by
the Trustee in its capacity as Note Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) If this Indenture is qualified under the TIA, Noteholders may
communicate pursuant to TIA Section 312(b) with other Noteholders with respect
to their rights under this Indenture or under the Notes.
(c) If this Indenture is qualified under the TIA, the Issuer, the Trustee
and the Note Registrar shall have the protection of TIA Section 312(c).
SECTION 7.03. REPORTS BY TRUSTEE.
(a) If this Indenture is qualified under the TIA, then within 30 days after
May 15 of each year (the "reporting date"), commencing with the year after the
issuance of the Notes, (i) in the circumstance required by TIA Section 313(a),
the Trustee shall mail to all Holders [and the Insurer] a brief report dated as
of such reporting date that complies with TIA Section 313(a), (ii) the Trustee
shall also mail to Holders of Notes [and the Insurer] with respect to which it
has made advances any reports with respect to such advances that are required by
TIA Section 313(b)(2) and (iii) the Trustee shall also mail to Holders of Notes
[and the Insurer] any reports required by TIA Section 313(b)(1). For purposes of
the information required to be included in any such reports pursuant to TIA
Sections 313(a)(3), 313(b)(1) (if applicable) or 313(b)(2), the principal amount
of indenture securities outstanding on the date as of which such information is
provided shall be the aggregate Principal Amount of the then Notes covered by
the report. The Trustee shall comply with TIA Section 313(c) with respect to any
reports required by this Section 7.03(a).
(b) If this Indenture is qualified under the TIA, a copy of each report
required under this Section 7.03 shall, at the time of such transmission to
Holders of Notes [and the Insurer] be filed by the Trustee with the Commission
and with each securities exchange upon which the Notes are listed. The Issuer
will notify the Trustee when the Notes are listed on any securities exchange.
SECTION 7.04. REPORTS BY ISSUER.
If this Indenture is qualified under the TIA, the Issuer (a) shall file
with the Trustee, within 15 days after it files them with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) which the Issuer is required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 and (b) shall also comply with the other provisions of TIA Section 314(a).
SECTION 7.05. NOTICE TO THE RATING AGENCIES[, TO THE INSURER AND TO THE SWAP
PROVIDER].
The Issuer shall use its best efforts promptly to provide notice to the
Rating Agencies[, the Insurer and the Swap Provider] of any of the following
events of which it has actual knowledge:
(a) any material change to or amendment of this Indenture;
(b) the occurrence of any Default or Event of Default that has not been
cured;
(c) the resignation or termination of the Trustee;
(d) the substitution of Pledged Mortgages;
(e) the final payment of Noteholders;
[(f) any payment or claim made under the Insurer's Policy,] and
(g) any Event of Default or Termination Event by, or with respect to, the
Swap Provider or any notice received by the Issuer pursuant to the Swap
Agreement that the Swap Provider reasonably believes that it may not be able to
make a payment required to be made under the Swap Agreement.
ARTICLE VIII
ACCOUNTS, PAYMENTS OF INTEREST AND PRINCIPAL, AND RELEASES
SECTION 8.01. COLLECTION OF MONEYS.
Except as otherwise expressly provided herein, the 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 Trustee pursuant to this
Indenture. The Trustee shall hold all such money and property received by it as
part of the Trust Estate and shall apply it as provided in this Indenture.
Except as otherwise expressly provided herein, if any default occurred in the
making of any payment or performance under any agreement or instrument that is
part of the Trust Estate, the 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 hereunder and any
right to proceed thereafter as provided in Article V.
SECTION 8.02. DISTRIBUTION ACCOUNT.
(a) [Reserved.]
(b) [Reserved.]
(c) The Trustee shall establish and maintain, on behalf of the Noteholders
[and the Insurer], the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted to the Trustee pursuant to Section
3(c)(iv) of the Administration Agreement; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Administrator shall remit any amount not required to
be remitted, it may withdraw such amount from the Distribution Account, any
provision herein to the contrary notwithstanding; provided that the
Administrator shall submit an explanation of such withdrawal to the Issuer. All
funds deposited in the Distribution Account shall be held by the Trustee in
trust for the Noteholders[, the Insurer and the Swap Provider] until disbursed
in accordance with this Indenture or withdrawn in accordance with Section
2.03(b). In no event shall the Trustee incur liability, other than any liability
arising out of its recklessness, bad faith or willful misconduct, for
withdrawals from the Distribution Account at the direction of the Administrator.
(d) Subject to Sections 5.02, 5.08 and 6.16, on each Payment Date and
Redemption Date, the Trustee shall distribute all amounts on deposit in the
Distribution Account to Noteholders in respect of the Notes to the extent of
amounts due and unpaid on the Notes for principal and interest in the amounts
and in accordance with Section 2.03(b).
SECTION 8.03. GENERAL PROVISIONS REGARDING PLEDGED ACCOUNTS.
(a) Each Pledged Account shall relate solely to the Notes, the Investor
Certificate, the Swap Agreement and to the Pledged Mortgages, Permitted
Investments and other property securing the Notes. Funds and other property in
each Pledged Account shall not be commingled with any other moneys or property
of the Issuer or any Affiliate thereof. Notwithstanding the foregoing, the
Trustee may hold any funds or other property received or held by it as part of a
Pledged Account, other than the Distribution Account, in collective accounts
maintained by it in the normal course of its business and containing funds or
property held by it for other Persons (which may include the Issuer or an
Affiliate), provided that such accounts are under the sole control of the
Trustee and the Trustee maintains adequate records indicating the ownership of
all such funds or property and the portions thereof held for credit to each
Pledged Account.
(b) All or a portion of the funds in the Pledged Accounts shall be invested
in Permitted Investments and reinvested by the Trustee subject to the provisions
of Section 3(c)(viii) of the Administration Agreement and, in the case of the
Note Account, upon written direction of _______________________, so long as no
Default or Event of Default shall have occurred and be continuing. The income
and gain (net of any losses) realized from any such investment of funds on
deposit in the Pledged Accounts shall be for the benefit of
_______________________ or the Trustee as provided in Section 3(c)(viii) of the
Administration Agreement and shall be remitted monthly to
_______________________ or the Trustee, as applicable, as provided in the
Administration Agreement. The amount of any realized losses in the Pledged
Accounts incurred in respect of any such investments shall promptly be deposited
by _______________________ or the Trustee, as applicable, in the applicable
Pledged Account.
(c) Subject to Sections 6.01(c) and 8.03(b), the Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Pledged Accounts
resulting from any loss on any Permitted Investment included therein except for
losses attributable to the Trustee's failure to make payments on such Permitted
Investments issued by the Trustee, in its commercial capacity as principal
obligor and not as trustee, in accordance with their terms.
(d) If a Default or Event of Default shall have occurred and be continuing
with respect to the Notes but the Notes shall not have been declared due and
payable pursuant to Section 5.02 or if such Notes shall have been declared due
and payable following an Event of Default, amounts collected or receivable from
the Trust Estate are being applied in accordance with Section 5.05 as if there
had not been such a declaration, then the Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Note Account in one or more
Permitted Investments.
(e) The Trustee shall, at all times while any Notes are
outstanding, maintain in its possession, or in the possession of an agent whose
actions with respect to such items are under the sole control of the Trustee,
all certificates or other instruments, if any, evidencing any investment of
funds in a Pledged Account. The Trustee shall relinquish possession of such
items, or direct its agent to do so, only for purposes of collecting the final
payment receivable on such investment or certificate or, in connection with the
sale of any investment held in a Pledged Account, against delivery of the amount
receivable in connection with any sale.
SECTION 8.04. PURCHASES OF DEFECTIVE PLEDGED MORTGAGES.
(a) If at any time the Issuer[, the Insurer] or the Trustee discovers or is
notified (i) that there has been a breach of any of _______________________'s
representations and warranties with respect to Pledged Mortgages contained in
the Administration Agreement that materially and adversely affects the interests
of the Noteholders[, the Insurer or the Swap Provider] in any Pledged Mortgage,
or (ii) that any of the Mortgage Documents for a Pledged Mortgage has not been
properly executed by the Mortgagor or contains a material defect, then the party
discovering such defect or omission or receiving notice thereof shall promptly
notify the other parties.
(b) If any defect, misrepresentation or omission described in subsection
(a) of this Section 8.04 materially and adversely affects the interests of the
Noteholders[, the Insurer or the Swap Provider,] then _______________________,
on behalf of the Issuer shall, pursuant to the applicable provisions of the
Administration Agreement, either (i) cure any such defect, misrepresentation or
omission, (ii) remove such Pledged Mortgage and substitute in its place a
Replacement Pledged Mortgage or (iii) purchase the affected Pledged Mortgage, in
each case at the times and in the manner set forth in the Administration
Agreement.
(c) Upon any such purchase or substitution, the Issuer shall be entitled to
request a release of the defective Pledged Mortgage from the lien of this
Indenture pursuant to Section 8.08(c) and Section 8.12.
(d) If the Issuer or _______________________ shall either (i) purchase any
Pledged Mortgage it is required to purchase pursuant to the Administration
Agreement and deposit the Purchase Price therefor in the Note Account or (ii)
(a) remove such Pledged Mortgage from the Trust Estate and substitute in its
place a Replacement Pledged Mortgage and (b) deposit in the Note Account any
related Substitution Adjustment Amount, in each case in the manner set forth in
the Administration Agreement, then the Issuer shall be deemed to have complied
with all requirements imposed upon it by this Section 8.04 with respect to such
Pledged Mortgage.
(e) _______________________ shall, pursuant to the Management Agreement, in
its sole discretion, have the right to purchase for its own account from the
Trust Estate any Delinquent Pledged Mortgage at the Purchase Price therefor and
in the same manner as that specified for the purchase of Defective Pledged
Mortgages pursuant to Section 2(c)(iii) of the Administration Agreement;
provided, however, that, prior to any such purchase by _______________________,
_______________________ shall notify [the Insurer] of any such purchase proposed
to be made by _______________________ and [the Insurer] shall have five Business
Days to disapprove any such purchase. Upon purchase of such Pledged Mortgage by
_______________________, the Administrator and the Issuer shall have the right
to treat such Pledged Mortgage (a "Defaulted Pledged Mortgage") as having been
the subject of a Principal Prepayment in Full and request the release thereof
from the lien of this Indenture pursuant to Section 8.12.
(f) With respect to any Converted Mortgage Loan for which the Master
Servicing Agreement requires the Master Servicer to purchase the Converted
Mortgage Loan, neither _______________________ or the Issuer shall have any
obligation to purchase such a Converted Mortgage Loan should the Master Servicer
fail to do so. Any purchase of a Converted Mortgage Loan by the Master Servicer
or any other Person shall be at the price specified in the Master Servicing
Agreement, but in no event less than Purchase Price therefor. Upon any such
purchase of a Converted Mortgage Loan, the Administrator and the Issuer shall
have the right to treat such Pledged Mortgage as having been the subject of a
Principal Prepayment in Full and shall request the release thereof from the lien
of this Indenture pursuant to Sections 8.08(c) and 8.12.
SECTION 8.05. GRANT OF REPLACEMENT PLEDGED MORTGAGE.
The Issuer shall be permitted to substitute any Pledged
Mortgage for any Original Pledged Mortgage initially Granted to the Trustee on
the Closing Date pursuant to this Indenture as set forth in Sections 2(a)(ii)
and 2(c)(iii) of the Administration Agreement.
SECTION 8.06. REPORTS BY TRUSTEE TO NOTEHOLDERS.
On each Payment Date, upon receipt from the Master Servicer, the Trustee
shall deliver a Payment Date Statement to each Holder of Notes.
SECTION 8.07. REPORTS BY TRUSTEE.
In addition to any statements required to be delivered or prepared by the
Trustee pursuant to Section 2.09, 8.02 or 10.01, the Trustee shall deliver to
the Issuer [and the Insurer], within two Business Days after the request of the
Issuer [or the Insurer], a written report setting forth the amount of each
Pledged Account established hereunder and the identity of the investments
included therein. Without limiting the generality of the foregoing, the Trustee
shall, upon the request of the Issuer [or the Insurer], promptly transmit to the
Issuer [and the Insurer] copies of all accountings of, and information with
respect to, collections furnished to it by the Administrator and shall promptly
notify the Issuer [and the Insurer] if on the Payment Date, the related Note
Distribution Amount or any portion thereof has not been received by the Trustee.
SECTION 8.08. TRUST ESTATE; RELEASE AND DELIVERY OF MORTGAGE DOCUMENTS.
(a) The Trustee may, and when required by the provisions of this Indenture
shall, execute instruments in form supplied to it to release property from the
lien of this Indenture, or convey the Trustee's interest in the same, in a
manner and under circumstances which are not inconsistent with the provisions of
this Indenture and the TIA. No party relying upon an instrument executed by the
Trustee as provided in this Article VIII shall be bound to ascertain the
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) In connection with a redemption of the Notes as to which the Trustee
receives a notice from the Issuer pursuant to Section 10.01(b) that the
Redemption Amount will be deposited into the Distribution Account not later than
10:00 a.m., New York City time, on the Redemption Date, the Trustee is hereby
authorized, if so directed by the Issuer in writing not less than five (5)
Business Days prior to the Redemption Date, to release property from the lien of
this Indenture on such Redemption Date against receipt by the Trustee of
immediately available funds in an amount not less than the Redemption Amount.
(c) Upon request by the Master Servicer accompanied by a Request for
Release of Documents in the form of Exhibit Two to the Custodial Agreement to
the effect that a Pledged Mortgage has been the subject of a Prepayment in Full
or has otherwise been paid in full, together with any other items required under
Section 8.12, the Trustee shall promptly request that the Custodian release the
related Mortgage Documents and execute such other documents as the Master
Servicer may request to evidence satisfaction and discharge of such Pledged
Mortgage.
(d) The Trustee shall, at such time as there are no Notes Outstanding,
release all of the Trust Estate to the Issuer (other than any cash held for the
payment of the Notes pursuant to Section 3.03 or Section 4.02), subject,
however, to Section 4.01 and the rights of the Trustee under Section 6.07.
SECTION 8.09. [RESERVED]
SECTION 8.10. MASTER SERVICER AS AGENT AND BAILEES OF TRUSTEE.
In order to facilitate the servicing of the Pledged Mortgages by the Master
Servicer, the Master Servicer shall deposit in a Master Servicing Account
proceeds of the Pledged Mortgages in accordance with the provisions of the
Master Servicing Agreement and this Indenture, prior to the time they are
deposited into the Note Account. In addition, the Master Servicer will be
required to remit to the Administrator for deposit in the Note Account all funds
held in the related Master Servicing Account that are required to be remitted to
the Administrator in accordance with the terms of the Master Servicing Agreement
and the Administration Agreement. Solely for purposes of perfection under
Section 9-305 of the Uniform Commercial Code or similar provision of law in the
state in which such property is held by the Master Servicer, the Trustee hereby
designates the Master Servicer as its agent and bailee to hold such funds with
respect to the Pledged Mortgages until they are deposited into the Note Account
as well as its agent and bailee in holding any Mortgage Documents or other
documents contained released to it by the Custodian pursuant to the Custodial
Agreement and any other items constituting a part of the Trust Estate which from
time to time come into possession of the Master Servicer. It is intended that,
by the Master Servicer's acceptance of such agency pursuant to the Master
Servicing Agreement, the Trustee, as secured party, will be deemed to have
possession of such Mortgage Documents, such moneys and such other items for
purposes of Section 9-305 of the Uniform Commercial Code or similar provision of
law of the states in which such property is held by such Master Servicer.
SECTION 8.11. OPINION OF COUNSEL.
The Trustee shall be entitled to receive at least five
Business Days' notice of any action to be taken pursuant to Section 8.08(a)
(other than in connection with releases of Pledged Mortgages which were the
subject of a Principal Prepayment in Full) accompanied by copies of any
instruments involved, and the Trustee shall be entitled to request an Opinion of
Counsel, in form and substance reasonably satisfactory to the Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Trustee in connection with any
such action.
SECTION 8.12. RELEASE OF PLEDGED MORTGAGES.
(a) The Issuer shall be entitled to request a release from the lien of this
Indenture of any Pledged Mortgage at any time after such Pledged Mortgage has
been the subject of a Principal Prepayment in Full or in accordance with the
requirements of Section 8.04 or 8.08 if:
(i) the Master Servicer has complied with all requirements imposed on
it by Section 8.04 or 8.08 in connection with such Pledged Mortgage (or is
deemed to have complied with such requirements by reason of the provisions
of Section 8.04(e));
(ii) at the time such release is requested, no Default or Event of
Default has occurred and is continuing; provided, however, that if a
Pledged Mortgage has been the subject of a Principal Prepayment in Full,
then the Trustee shall release such Pledged Mortgage from the lien of this
Indenture upon compliance with all other conditions of this subsection (a),
notwithstanding the existence of a Default or Event of Default;
(iii) the Master Servicer, the Issuer or _______________________
delivers to the Trustee an Officers' Certificate (A) identifying the
Pledged Mortgage to be released, (B) requesting the release thereof, (C)
setting forth the amount deposited in the Note Account with respect
thereto, if any, and (D) certifying that the conditions set forth in
clauses (i) and (ii) above have been satisfied; and
(iv) the Issuer delivers to the Trustee a certificate of fair value if
required by Section 314(d)(1) or Section 314(d)(3) of the TIA.
(b) Upon satisfaction of the conditions specified in subsection (a) of this
Section 8.12, the Trustee shall release from the lien of this Indenture and
deliver to or upon the order of the Issuer the Pledged Mortgage to be released
(including all related Mortgage Documents) described in the Request for Release.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Subject to the rights of [the Insurer] under Article XII hereof and without
the consent of the Holders of any Notes, the Issuer and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Trustee any property subject or required to be subjected
to the lien of this Indenture, or to subject to the lien of this Indenture
additional property;
(2) to add to the conditions, limitations and restrictions on the
authorized amount, terms and purposes of the issuance, authentication and
delivery of any Notes, as herein set forth, additional conditions,
limitations and restrictions thereafter to be observed;
(3) to evidence the succession of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(4) to add to the covenants of the Issuer, for the benefit of the
Holders of all Notes or to surrender any right or power herein conferred
upon the Issuer;
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, which shall not be inconsistent
with the provisions of this Indenture, provided that such action shall not
adversely affect the interests of the Holders of the Notes [and the
Insurer, unless an Insurer Default has occurred and is continuing] (any
such action shall be deemed not to adversely affect the interests of the
Noteholders [and the Insurer] if the Issuer delivers to the Trustee letters
from each Rating Agency to the effect that such action will not result in a
downgrading of the Notes without taking into account the [Insurer's
Policy]);
(6) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted, and to add to this Indenture such other provisions as may be
expressly required by the TIA; or
(7) to modify, eliminate or add to any provision of the Indenture as
shall be necessary in order to procure another note insurance policy [in
the event of an Insurer Default].
The 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, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise except to the extent required by law.
The Trustee may in its discretion determine whether or not the rights of
the Holder of Notes would be adversely affected by any supplemental indenture,
and any such determination shall be conclusive upon the Holders of all Notes,
whether theretofore or thereafter authenticated and delivered hereunder. In
making such determination, a supplemental indenture shall be conclusively deemed
by the Trustee not to adversely affect the Notes if (i) the Trustee receives a
letter or other writing from each Rating Agency rating the Notes to the effect
that execution of the supplemental indenture will not result in any change in
the current rating assigned by that Rating Agency to the Notes [without taking
into account the Insurer's Policy (or in the case of clause (7) above]; that
will not result in the Notes not being assigned by each agency the highest
credit rating of each agency) and (ii) the supplemental indenture effects no
change in principal priority schedules, interest rates, Redemption Prices,
substitution of Mortgage Collateral, Payment Dates, Record Dates, terms or
redemption, the application of surplus to the payment of the Notes or other
payment terms. The Trustee shall not be liable for any such determination made
in good faith.
Prior to joining in the execution of any such supplemental indenture, the
Trustee may in its discretion obtain an Opinion of Counsel to the effect that
such transaction will not result in a "substantial modification" of the Notes
under Treasury Regulation Section 1.1001-3, or adversely affect the status of
the Notes as indebtedness for federal income tax purposes.
[The Trustee shall provide the Insurer, if any, with a copy of any
supplemental indenture executed pursuant to this Section, by first class mail
mailed to the Insurer within five Business Days after the execution of such
supplemental indenture. Notwithstanding the foregoing, no supplemental indenture
may be entered into without the prior written consent of the Insurer (except (i)
in the case of clause (7) above or (ii) if an Insurer Default has occurred and
is continuing).]
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
Subject to the rights of [the Insurer] under Article XII hereof and with
the consent of the Holders of Notes representing not less than two-thirds of the
aggregate Principal Amount of the Notes by Act of said Holders delivered to the
Issuer and the Trustee [and the Insurer], the Issuer and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(1) change the Stated Maturity of the final installment of the
principal of, or any installment of interest on, any Note or reduce the
principal amount thereof, the Note Interest Rate thereon or the Redemption
Price with respect thereto, change the earliest date on which any Note may
be redeemed at the option of the Issuer, change any place of payment where,
or the coin or currency in which, any Note or any interest thereon is
payable, or impair the right to institute suit for the enforcement of the
payment of any installment of interest due on any Note on or after the
Stated Maturity thereof or for the enforcement of the payment of the entire
remaining unpaid principal amount of any Note on or after the Stated
Maturity of the final installment of the principal thereof (or, in the case
of redemption, on or after the applicable Redemption Date);
(2) reduce the percentage of the aggregate Principal Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with provisions of this Indenture or Defaults
hereunder and their consequences provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 5.14 or
Section 5.18(b) except to increase any percentage specified therein or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(4) modify or alter the provisions of the proviso to the definition of
the term "Outstanding";
(5) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust
Estate (except for Permitted Encumbrances) or terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Holder
of any Note of the security afforded by the lien of this Indenture; or
(6) modify any of the provisions of this Indenture in such manner as
to materially and adversely affect rights of the Holders of the Notes to
the benefits of any provisions for the mandatory redemption of Notes
contained herein.
The Trustee may in its discretion determine whether or not the rights of
the Holder of any Notes would be materially and adversely affected by any
supplemental indenture and any such determination shall be conclusive upon the
Holders of all Notes authenticated and delivered hereunder[, provided, however,
that unless an Insurer Default has occurred and is continuing, written consent
of the Insurer shall be required unless such action shall not, as evidenced by
an Opinion of Counsel delivered to the Trustee and the Insurer adversely affect
in any material respect the interests of the Insurer]. The Trustee shall not be
liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Trustee shall mail to the
Holders of the Notes to which such supplemental indenture relates a notice
setting forth in general terms the substance of such supplemental indenture. The
Trustee shall mail to [the Insurer] a copy of any supplemental indenture
executed pursuant to this Section, by first class mail, mailed to [the Insurer]
within five Business Days after the execution of such supplemental indenture.
Any failure of the 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, consenting to or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee [and the Insurer,
unless an Insurer default has occurred and is continuing,] shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Executed copies of any supplemental indenture permitted by this Article shall be
provided by the Trustee to the Rating Agencies.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes to which such supplemental indenture relates which have theretofore
been or thereafter are authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
SECTION 9.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and if required by the Trustee shall,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Notes.
SECTION 9.07. AMENDMENTS TO DEPOSIT TRUST AGREEMENT OR ADMINISTRATION
AGREEMENT.
Subject to the rights of [the Insurer] under Article XII hereof, the
Trustee shall, upon Issuer Request, consent to any proposed amendment to the
Deposit Trust Agreement or Administration Agreement, or an amendment to or
waiver of any provision of any other document relating to the Deposit Trust
Agreement or Administration Agreement, such consent to be given without the
necessity of obtaining the consent of the Holders of any Notes upon receipt by
the Trustee of:
(i) an Opinion of Counsel to the effect that such amendment or waiver
will not materially and adversely affect the interests of the Holders of
the Notes and that all conditions precedent to such consent specified in
this Section 9.07 have been satisfied; provided, however, that no such
Opinion of Counsel shall be required if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would
not result in the downgrading or withdrawal of the respective ratings then
assigned to the Notes without taking into account the [Insurer's Policy];
it being understood and agreed that any such letter in and of itself will
not represent a determination as to the materiality of any such amendment
and will represent a determination only as to the credit issues affecting
any such rating;
(ii) an Officers' Certificate, to which such proposed amendment or
waiver shall be attached, stating that such attached copy is the true copy
of the proposed amendment or waiver and that all conditions precedent to
such consent specified in this Section 9.07 have been satisfied;
(iii) written confirmation from the Rating Agencies that the
implementation of the proposed amendment or waiver will not adversely
affect their rating of the Notes; and
(iv) any other document required pursuant to Section 11.01;
provided, however, amendments to the definitions of Specified
Overcollateralization Amount, Base Specified Overcollateralization Amount and
Target Percentage (each of which is contained in the Administration Agreement),
may be made solely upon (i) the written consent of the Issuer and[, if no
Insurer Default shall have occurred and be continuing, the Insurer] and with the
advise of tax counsel to the Issuer, or (ii) the written consent of the Issuer
and the Trustee and with the advice of tax counsel to the Issuer [and without
the consent of the Insurer if an Insurer Default shall have occurred and be
continuing].
Notwithstanding the foregoing, the Trustee may decline to consent to a
proposed waiver or amendment that adversely affects its own rights, duties or
immunities under this Indenture or otherwise.
Nothing in this Section 9.07 shall be construed to require that any Person
obtain the consent of the Trustee to any amendment or waiver or any provision of
any document where the making of such amendment or the giving of such waiver
without obtaining the consent of the Trustee is not prohibited by this Indenture
or by the terms of the document that is the subject of the proposed amendment or
waiver.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. REDEMPTION.
(a) The Notes shall not be subject to special redemption.
(b) The Notes shall be subject to redemption by the Issuer, in whole but
not in part, at the option of the Issuer, on any Payment Date on or after the
earlier of (i) ten years after the Closing Date and (ii) the Payment Date after
which the Pool Principal Balance with respect to such Payment Date, is ____% or
less than the Initial Pool Principal Balance, on the terms and conditions
specified in this subsection (b) at the Redemption Price [plus all amounts due
to the Insurer pursuant to the Insurance Agreement]. If the Issuer elects to so
redeem the Notes, it shall, no later than 30 days prior to the Payment Date
selected for such redemption, deliver notice of such election to the Trustee
[and the Insurer] and either (a) deposit in the Distribution Account the
Redemption Price therefor [plus all amounts due to the Insurer pursuant to the
Insurance Agreement] and any amounts then due and owing to the Swap Provider
(collectively, the "Redemption Amount") or (b) state in such notice that the
Redemption Amount will be deposited in the Distribution Account not later than
10:00 a.m., New York City time, on the applicable Redemption Date.
(c) [Reserved]
(d) In effecting any redemption pursuant to subsection (b), concurrent with
the notice provided for therein, the Issuer shall deliver an Issuer Order
directing the Trustee to effect such redemption, any certification and opinion
required pursuant to Section 11.01 and a form of redemption notice. All Notes so
redeemed shall be due and payable on such Redemption Date upon the giving of the
notice thereof required by Section 10.02.
(e) If the Issuer or any Affiliate of the Issuer elects to retain the Notes
following any redemption pursuant to subsection (b) of this Section 10.01, the
Issuer shall, as a condition precedent to such redemption without retirement,
consult with tax counsel to determine that such redemption without retirement
will not adversely affect [the Insurer]. Prior to a resale of the Notes
following any such redemption without retirement, the Issuer shall obtain an
opinion of tax counsel confirming the status of the Notes as indebtedness for
federal income tax purposes.
SECTION 10.02. FORM OF REDEMPTION NOTICE.
Notice of redemption shall be given by the Trustee in the name of and at
the expense of the Issuer by first class mail, postage prepaid, mailed not less
than thirty days prior to the applicable Redemption Date (but in no event prior
to the date on which the Redemption Amount with respect to the Notes to be
redeemed pursuant to Section 10.01 has been deposited in the Distribution
Account or the date on which the notice of such deposit referred to in Section
10.01 has been received by the Trustee) to [the Insurer] and each Holder of
Notes to be redeemed, such Holders being determined as of the Record Date with
respect to the Payment Date on which such redemption is to occur.
All notices of redemption shall state:
(1) the Redemption Date; and
(2) the fact of such payment in full and the place where such Notes
are to be surrendered for payment of the Redemption Price (which shall be
the office or agency of the Issuer to be maintained as provided in Section
3.02). Failure to give notice of redemption, or any defect therein, to any
Holder of any Note selected for redemption shall not impair or affect the
validity of the redemption of any other Note.
SECTION 10.03. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as provided in Section 10.02, the
Notes or portions thereof so to be redeemed shall, on the applicable Redemption
Date, become due and payable at the Redemption Price and (unless the Issuer
shall default in the payment of the Redemption Price or elect not to retire the
Notes so redeemed, as provided in Section 10.04) no interest shall accrue on
such Redemption Price for any period after the last day preceding the day on
which such Redemption Date occurs.
SECTION 10.04. RETENTION OF NOTES BY ISSUER.
In the event that the Issuer effects a redemption of the Notes in
accordance with the provisions of Section 10.01(b), it may elect to cause the
Notes to remain Outstanding and not release the lien of the Indenture with
respect to the Trust Estate securing such Notes or terminate such Notes. If the
Issuer so elects, the Notes shall not merge with the security therefor, but
shall remain validly Outstanding, subject to the following paragraph.
The Trustee, if so directed by the Issuer in writing not less
than (5) Business Days prior to the Redemption Date, shall authenticate and
prepare for delivery on the Redemption Date new Notes evidencing Book Entry
Notes or Definitive Notes (as directed by the Issuer) on the order of the Issuer
against receipt by the Trustee of immediately available funds in an amount not
less than the Redemption Amount.
Notwithstanding the foregoing, no redemption of any Note shall be permitted
without retiring it and no sale of previously redeemed Notes may be made by the
Issuer unless the Issuer shall have delivered to the Trustee [and the Insurer,
provided an Insurer Default has not occurred and is continuing], an Opinion of
Counsel that such redemption without retirement or sale, as the case may be,
does not violate any provision of the TIA or other applicable law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Issuer to the Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Trustee [and the Insurer] an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate, opinion or letter with respect to compliance with a
condition or covenant provided for in this Indenture (including one furnished
pursuant to specific requirements of this Indenture relating to a particular
application or request) shall include:
(1) a statement that each individual signing such certificate, opinion
or letter has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate, opinion or letter are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 11.02. FORM OF DOCUMENTS DELIVERED TO 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 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 other certificate or opinion is based
are erroneous. Any such Issuer certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Authorized Officer or Officers of the Owner Trustee or a
certificate of the officers of the Depositor or the manager of the Issuer,
stating that the information with respect to such factual matters is in the
possession of the Owner Trustee, or the Depositor or the manager of the Issuer,
unless such officer or 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. Any Opinion of Counsel may be based on the written
opinion of other counsel, in which event such Opinion of Counsel shall be
accompanied by a copy of such other counsel's opinion and shall include a
statement to the effect that such counsel believes that such counsel and the
Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Wherever in this Indenture, in connection with any application or
certificate or report to the 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 Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in Section
6.01(b)(2).
Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Trustee at the request or direction
of the Issuer, then, notwithstanding that the satisfaction of such condition is
a condition precedent to the Issuer's right to make such request or direction,
the Trustee shall be protected in acting in accordance with such request or
direction if it does not have knowledge of the occurrence and continuation of
such Default or Event of Default as provided in Section 6.01(d).
SECTION 11.03. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders
may be embodied in any evidence by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by an agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
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 Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him or her the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his or her authority.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Trustee or the Issuer in reliance thereon, whether or not any notation of such
action is made upon such Notes.
SECTION 11.04. NOTICES, ETC. TO TRUSTEE AND ISSUER.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Noteholder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with and received by the Trustee at its Corporate Trust Office with a
copy to:
____________________________, ____________________________,
_____________________, ____________________________, Attention:
____________________________ (____________________________);
(2) the Issuer by the Trustee or by any Noteholder shall be sufficient
for every purpose hereunder (except as provided in Sections 5.01(3) and
(4)) if in writing and mailed, first-class, postage prepaid, to the Issuer
addressed to it
_____________________________, ___________________________,
_____________________, ____________________________, Attention:
____________________________, or at any other address previously furnished
in writing to the Trustee by the Issuer;
(3) any Rating Agency by the Trustee or the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with and received by such Rating Agency at the address specified
therefor in the definition corresponding to the name of such Rating Agency;
[(4) [the Insurer by the Trustee,] the Issuer or any Noteholder shall
be sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid to [the Insurer] at
____________________________, _________________________, _________________,
____________________________, Attention: ____________________________
(________________________/____________________________ Notes, Class A-1 and
Class A-2; or
(5) the Swap Provider by the Trustee or the Issuer shall be sufficient
for every purpose hereunder if in writing and mailed, first-class, postage
prepaid to the Swap Provider at ___________________________,
____________________________, _____________________,
____________________________, Attention: Swap Group (___________________).]
SECTION 11.05. NOTICES AND REPORTS TO NOTEHOLDERS; WAIVER OF NOTICES.
Where this Indenture provides for notice to Noteholders of any event or the
mailing of any report to Noteholders, such notice or report shall be
sufficiently given (unless otherwise herein expressly provided) if mailed,
first-class, postage prepaid, to each Noteholder affected by such event or to
whom such report is required to be mailed, at the address of such Noteholder as
it appears on the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice or the mailing
of such report. In any case where a notice or report to Noteholders is mailed in
the manner provided above, neither the failure to mail such notice or report,
nor any defect in any notice or report so mailed, to any particular Noteholder
shall affect the sufficiency of such notice or report with respect to other
Noteholders, and any notice or report which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
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.
Waiver of notice by any Noteholder shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to Noteholders of any event, such
notice shall also be sent to S&P, so long as S&P is a Rating Agency and to
Moody's so long as ▇▇▇▇▇'▇ is a Rating Agency.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for any meeting of
Noteholders. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
SECTION 11.07. CONFLICT WITH TRUST INDENTURE ACT.
If this Indenture is qualified under the TIA and any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions of the TIA, such
required provision shall control.
SECTION 11.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.09. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 11.10. SEPARABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.11. BENEFITS OF INDENTURE.
Except as provided in Section 12.01(i) hereof, nothing in this Indenture or
in the Notes, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any separate trustee or
co-trustee appointed under Section 6.14 and the Noteholders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12. LEGAL HOLIDAYS.
In any case where the date of any Payment Date, Redemption Date or any
other date on which principal of, or interest on, any Note is proposed to be
paid shall not be a Business Day, then (notwithstanding any other provision of
the Notes or this Indenture) payment need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the nominal date of any such Payment Date, Redemption Date or other date
for the payment of principal of, or interest on, any Note, as the case may be,
and no interest shall accrue for the period from and after any such nominal
date, provided such payment is made in full on such next succeeding Business
Day.
SECTION 11.13. GOVERNING LAW.
This Indenture and each Note shall be construed in accordance with and
governed by the substantive laws of the State of New York applicable to
agreements made and to be performed in the State of New York and the
obligations, rights and remedies of the parties hereto and the Noteholders shall
be determined in accordance with such laws.
SECTION 11.14. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.15. RECORDING OF INDENTURE.
This Indenture is subject to recording in any appropriate public recording
office, such recording to be effected by the Issuer and at its expense in
compliance with any Opinion of Counsel delivered pursuant to Section 2.12(c) or
Section 3.06.
SECTION 11.16. ISSUER OBLIGATION.
No recourse may be taken, directly or indirectly, against (i) the Bank,
(ii) any incorporator, subscriber to the capital stock, stockholder, officer or
director of the Bank or of any predecessor or successor of the Bank, (iii) any
holder of a beneficial interest in the Issuer (solely in its capacity as such),
(iv) any incorporator, subscriber to the capital stock, stockholder, partner,
beneficiary, agent, officer, director, employee, or successor or assign of a
holder of a beneficial interest in the Issuer, (v) the Depositor or any
Affiliate thereof (other than the Issuer) or (vi) any incorporator, subscriber
to the capital stock, stockholder, officer, director or employee of the Trustee
or any predecessor or successor of the Trustee with respect to the Issuer's
obligation with respect to the Notes or the obligation of the Issuer or the
Trustee under this Indenture or any certificate or other writing delivered in
connection herewith or therewith.
SECTION 11.17. INSPECTION.
The Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Trustee [or the Insurer], during the Issuer's normal
business hours, to examine all books of account, records, reports and other
papers of the Issuer, to make copies and extracts therefrom, to cause such books
to be audited by Independent Accountants selected by the Trustee [or the
Insurer], as the case may be, and to discuss its affairs, finances and accounts
with its officers, employees and Independent Accountants (and by this provision
the Issuer hereby authorizes its Accountants to discuss with such
representatives such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any reasonable expense
incident to the exercise by the Trustee [or the Insurer] of any rights under
this Section 11.17, but not in excess of $5,000 per year, shall be borne by the
Issuer.
SECTION 11.18. USURY.
The amount of interest payable or paid on any Note under the terms of this
Indenture shall be limited to an amount which shall not exceed the maximum
nonusurious rate of interest allowed by the applicable laws of the United States
or the State of New York (whichever shall permit the higher rate), which could
lawfully be contracted for, charged or received (the "Highest Lawful Rate"). In
the event any payment of interest on any Note exceeds the Highest Lawful Rate,
the Issuer stipulates that such excess amount will be deemed to have been paid
as a result of an error on the part of both the Trustee, acting on behalf of the
Holder of such Note, and the Issuer, and the Holder receiving such excess
payment shall promptly, upon discovery of such error or upon notice thereof from
the Issuer or the Trustee, refund the amount of such excess or, at the option of
the Trustee, apply the excess to the payment of principal of such Note, if any,
remaining unpaid.
SECTION 11.19. NO PETITION.
The Trustee, by entering into this Indenture, and each Noteholder, by
accepting 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 Operative
Agreements.
[ARTICLE XII
THE NOTE INSURER
SECTION 12.01. CERTAIN MATTERS REGARDING THE INSURER AND THE INSURER'S POLICY.
(a) Rights of the Insurer to Exercise Certain Rights of Noteholders. By
accepting its Note, each noteholder agrees that unless an Insurer Default
exists, the Insurer shall have the right to exercise the Voting Rights of the
Noteholders with respect to all matters, including without limitation the
following matters without any further consent of the Noteholders, to the extent
such rights are provided for herein:
(i) the right to direct the Trustee to terminate the rights and
obligations of the Master Servicer under the Master Servicing Agreement in
the event of a Master Servicer Default;
(ii) the right to consent to or direct any waivers of defaults by the
Master Servicer;
(iii) the right to remove the Trustee pursuant to this Indenture;
(iv) the right to institute proceedings against the Master Servicer
and the right to direct Proceedings pursuant to Section 5.14 of this
Indenture;
(v) the right to require the Issuer, the Company or
_____________________ to repurchase or substitute Pledged Mortgage Loans
pursuant to this Indenture;
(vi) the right to accelerate maturity of the Notes or rescind a
declaration of acceleration pursuant to Section 5.02 of this Indenture;
(vii) the right to direct the exercise of all remedies pursuant to
Section 5.04 of this Indenture;
(viii) the right to request that the Trustee take possession of and
retain the Trust Estate pursuant to Section 5.05 of this Indenture or to
rescind such election by the Trustee pursuant to the same section; and
(ix) the right to waive any past Default pursuant to Section 5.15 of
this Indenture.
In addition, unless an Insurer Default exists, the Insurer's consent will
be required prior to, among other things, (i) the appointment of any successor
Trustee or Master Servicer or (ii) any amendment to the Indenture; provided,
however, that the Insurer shall not unreasonably withhold, condition or delay
its consent. Each Noteholder agrees that, unless an Insurer Default exists, the
rights specifically set forth above may be exercised by the Noteholders only
with the prior written consent of the Insurer.
(b) Issuer to Act Solely with Consent of the Insurer. Unless an Insurer
Default exists and is continuing, the Issuer shall not exercise the right to
appoint a co-trustee pursuant to Section 6.14 of this Indenture or successor
trustee pursuant to Section 6.10 of this Indenture without the prior written
consent of the Insurer.
Unless an Insurer Default exists and is continuing, the Issuer and the
Trustee shall not undertake any litigation with respect to the Trust Estate
without the prior consent and at the direction of the Insurer.
(c) Trustee to Act Solely with Consent of the Insurer. Unless an Insurer
Default exists and is continuing, the Trustee shall not exercise the right to:
(i) agree to any amendment of this Indenture, Deposit Trust Agreement
or Administration Agreement pursuant to Article IX of this Indenture;
(ii) undertake any litigation pursuant to the Indenture or incur any
expenses reimbursable pursuant to Section 6.03 of this Indenture;
(iii) exercise any of the remedies set forth in Section 5.04 or 5.06
of this Indenture;
(iv) appoint co-trustees or separate trustees pursuant to Section 6.14
of this Indenture; or
(v) agree to any amendment to, or grant any waiver of rights under,
the Master Servicing Agreements;
without the prior written consent of the Insurer, which shall not be
unreasonably withheld; provided, however, during the existence and continuation
of an Insurer Default the Trustee shall not require the prior written consent of
the Insurer to exercise any of the rights enumerated above.
(d) Trust Estate and Accounts Held for Benefit of the Insurer and the
Noteholders. The Trustee shall hold the Trust Estate (subject to the obligations
of each Custodian) for the benefit of the Noteholders and, unless an Insurer
Default exists and is continuing, the Insurer, and all references in this
Indenture and in the Notes to the benefit of Holders of the Notes shall, unless
an Insurer Default exists and is continuing, be deemed to include the Insurer.
The Trustee shall, unless an Insurer Default exists and is continuing, cooperate
in all reasonable respects with any reasonable request by the Insurer for action
to preserve or enforce the Insurer's rights or interests under this Indenture
and the Notes.
(e) Claims Upon the Insurer's Policy.
(i) The Trustee shall (A) receive as attorney-in-fact of each
Noteholder any Insured Payment from the Insurer or on behalf of the Insurer
and (B) disburse such Insured Payment to such Noteholders in accordance
with Section 2.03(b) hereof for the benefit of the related Noteholders. Any
Insured Payment received by the Trustee shall be held by the Trustee
uninvested. Insured Payments disbursed by the Trustee from proceeds of the
Insurer's Policy shall not be considered payment by the Issuer with respect
to the Notes, nor shall such payments discharge the obligation of the
Issuer with respect to such Notes, and the Insurer shall become the owner
of such unpaid amounts due from the Issuer in respect of such Insured
Payments as the deemed assignee and subrogee of such Noteholders and shall
be entitled to receive the Insurer Reimbursement Amount in respect thereof.
The Trustee hereby agrees on behalf of each Noteholder for the benefit of
the Insurer that it recognizes that to the extent the Insurer makes Insured
Payments for the benefit of the Noteholders, the Insurer will be entitled
to receive the related Insurer Reimbursement Amount in accordance with the
priority of distributions referenced in Section 2.03(b) hereof.
(ii) The Trustee shall promptly notify the Insurer of any proceeding
or the institution of any action, of which an Officer of the Trustee has
actual knowledge, constituting a Preference Claim in respect of any payment
made on the Notes. Each Noteholder that pays any amount pursuant to a
Preference Claim theretofore received by such Noteholder on account of a
Note will be entitled to receive reimbursement for such amounts from the
Insurer in accordance with the terms of the Insurer's Policy. Each
Noteholder, by its purchase of Notes, and the Trustee hereby agree that,
the Insurer (so long as no Insurer Payment Default exists) may at any time
during the continuation of any proceeding relating to a Preference Claim
direct all matters relating to such Preference Claim, including, without
limitation, (i) the direction of any appeal of any order relating to such
Preference Claim and (ii) the posting of any surety, supersedeas or
performance bond pending any such appeal. In addition and without
limitation of the foregoing, the Insurer shall be subrogated to the rights
of the Trustee and each Noteholder in the conduct of any such Preference
Claim, including, without limitation, all rights of any party to any
adversary proceeding action with respect to any court order issued in
connection with any such Preference Claim.
(iii) Each Noteholder, by its purchase of Notes, and the Trustee
hereby agree that, unless an Insurer Default exists and is continuing, the
Insurer shall have the right to direct all matters relating to the Notes in
any proceeding in a bankruptcy of the Issuer, including without limitation
any proceeding relating to a Preference Claim, any appeal of any order
relating to a Preference Claim and the posting of any surety or bond
pending any such appeal.
(f) Trustee to Cooperate. Unless an Insurer Default exists and is
continuing, the Trustee shall cooperate in all respects with any reasonable
request by the Insurer for action to preserve or enforce the Insurer's rights or
interests hereunder without limiting the rights or affecting the interests of
the Noteholders as otherwise set forth herein.
(g) Surrender and Cancellation. The Trustee shall surrender the Insurer's
Policy to the Insurer for cancellation upon the expiration of the term of the
Insurer's Policy as provided in the Insurer's Policy.
(h) Reports to the Insurer. All notices, statements, reports, certificates
or opinions required by this Indenture to be sent to any other party hereto or
to any of the Noteholders shall also be sent to the Insurer. The Issuer and the
Trustee shall make available to the Insurer their books and records for the
purpose of copying and inspection of any information about the Notes or the
Noteholders.
(i) Third-Party Beneficiary. The Insurer shall be a third-party beneficiary
of this Indenture, entitled to enforce the provisions thereof as if a party
thereto.
(j) Costs and Expenses. The Insurer shall not be responsible for any costs
or expenses relating to the Trust Estate or the Pledged Mortgages except for the
payment of amounts pursuant to the Insurer's Policy.
(k) Survival of the Insurer's Right to be Reimbursed.
Notwithstanding Section 4.01 of this Indenture, this Indenture shall not be
discharged or satisfied until satisfaction of the conditions set forth therein
and payment of the Insurer Reimbursement Amount. The Insurer's right to receive
the Insurer Reimbursement Amount shall survive the satisfaction and discharge of
this Indenture.
(l) Opinions of Counsel. While the Insurer's Policy is in effect, each
Opinion of Counsel rendered pursuant to the Indenture, the Administration
Agreement, the Deposit Trust Agreement, the Custodial Agreement, the Master
Servicing Agreement, the Master Mortgage Loan Purchase Agreement or the
Management Agreement also shall be addressed to the Insurer.]
IN WITNESS WHEREOF, each party has caused this Indenture to be executed by
its duly authorized officer or officers as of the day and year first above
written.
____________________________________________
as Issuer
By: _______________________________________,
By: ________________________________________
Name:
Title:
___________________________________________
as Trustee
By: _______________________________________
Authorized Officer
By: _______________________________________
Name:
Title:
STATE OF _________________ )
) ss.:
COUNTY OF _________________ )
On the day of _________________, 19__ before me personally came
_________________, to me known, who being by me duly sworn did depose and say
that she/he resides in _________________, that she/he is the _________________
of _________________, the corporation described in and which executed the above
instrument and that she/he signed her/his name thereto by authority of the Board
of Directors of said corporation.
[NOTARIAL SEAL]
_____________________________________
Notary Public
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
On the day of , 19__, before me, a notary public in and for said State,
personally appeared _________________, known to me (or proved to me on the basis
of satisfactory evidence) to be a _________________ of _________________, the
corporation that executed the within instrument, and also known to me (or proved
to me on the basis of satisfactory evidence) to be the persons who executed it
on behalf of said _________________ corporation, and acknowledged to me that
such _________________ corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
_________________________________________
Notary Public
EXHIBIT I
LETTER AGREEMENT WITH THE DEPOSITORY
EXHIBIT II
FORM OF CLASS A-1 NOTE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF. THE PRINCIPAL AMOUNT OF THIS NOTE MAY BE
ASCERTAINED ONLY BY OBTAINING A CONFIRMATION THEREOF FROM THE TRUSTEE UNDER THE
INDENTURE REFERRED TO BELOW.
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 SO 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 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.
________________________
a ________________________ Statutory Business Trust
________________________ Notes
CLASS A-1
STATED MATURITY: ___________ __, 20__
ISSUE DATE: ___________ _, 199_
Initial Principal
Amount of this Note:
$___________ CUSIP NO. _________
CERTIFICATE NUMBER 1
________________________ (the "Issuer"), a statutory business trust formed
under a deposit trust agreement dated as of ________ __, 199_ and having
________________________, a ________________________, as Owner Trustee, for
value received, hereby promises to pay to _____________________ or registered
assigns, the principal sum of
___________________________________________________________ DOLLARS
($___________) in monthly installments on the twenty-fifth day of each month,
commencing on ________ __, 199_ (each, a "Payment Date"), and ending on or
before ________ __, 20_, (the "Stated Maturity" of such final installment of
principal), and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) on the Principal Amount (as defined in the Indenture
hereinafter referred to) of this Note on each Payment Date for the related
period, commencing on the immediately preceding Payment Date (or, in the case of
the first Interest Accrual Period, commencing on ________ __, 199_) and ending
on the date immediately preceding such Payment Date, as set forth herein and in
the Indenture and the Administration Agreement referred to below. If any Payment
Date shall not be a "Business Day" (as defined in the Indenture), payment of the
amount due will be made on the next succeeding Business Day.
Installments of principal of this Note are due and payable as described in
the Indenture dated as of ________ __, 199_ (the "Indenture"), among the Issuer
and the Trustee, as such indenture may be amended or supplemented from time to
time as permitted thereby.
The principal of, and interest on, this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied as set forth in the Indenture. Any
installment of principal or interest which is not paid when and as due shall
bear interest as described herein and in the Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, ________________________ has caused this
instrument to be duly executed by its duly authorized officer.
Dated:___________________ ____, 199___ __________________________________
By:__________________________________
By: _________________________________
Title: ______________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
_________________________,
as Trustee
By: _____________________________,
Authorized Signatory
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____________________________ Notes (herein called the
"Notes"). The Notes are issuable in one or more classes; the Notes of particular
Classes being herein called the Class A-1 and Class A-2 Notes, all issued and to
be issued under the Issuer's Indenture dated as of ________ __, 199_ between the
Issuer and ____________________________ (the "Trustee", which term includes any
successor Trustee under the Indenture), which authorized the Notes, and
reference is hereby made thereto for a statement of the respective rights
thereunder of the Issuer, the Trustee and the Holders of the Notes of each
particular Class thereof and the terms upon which the Notes of each Class are,
and are to be, authenticated and delivered. The Note is one of the Class A-1
Notes.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture or, if not defined therein, in
the Administration Agreement.
The interest rate for the Class A-1 Notes (the "Class A-1 Interest Rate")
on each Payment Date shall be ____________________________.
As provided in the Indenture, the Notes are issuable in Classes which may
vary as is provided or permitted in the Indenture. Notes of each Class are
equally and ratably secured by the collateral pledged as security therefor to
the extent provided by the Indenture.
For each Payment Date, the aggregate amount of each installment of interest
due and payable on the Class A-1 Notes will be equal to the Class A-1 Interest
Payment Amount and any Class A-1 Noteholders' Interest Carryover for such
Payment Date.
The "Class A-1 Interest Payment Amount" means, as of any Payment Date, the
sum of (i) one month's interest at the Class A-1 Interest Rate on the then
outstanding Principal Amount of the Class A-1 Notes immediately prior to such
Payment Date and (ii) the sum of the amounts, if any, by which the amount
described in clause (i) above on each prior Payment Date exceeded the amount
actually distributed as interest on such Notes on such prior Payment Dates and
was not subsequently distributed, together with, to the extent permitted by
applicable law, interest on the amount described in clause (ii) at the Class A-1
Interest Rate[; provided, that, solely in the case where an Insurer Default
shall have occurred and is continuing, the rate at which the amount in clause
(i) above is calculated shall be the lesser of the Class A-1 Interest Rate and
the Weighted Average Net Mortgage Rate for the related Payment Date (unless such
Payment Date would be the seventh consecutive Payment Date on which at least one
of the Note Interest Rates would be equal to the Weighted Average Net Mortgage
Rate, in which case, this proviso shall be disregarded for such Payment Date
regardless of any continuation of such Insurer Default)].
For any Payment Date on which interest accrues on the Class A-1 Notes based
on the Weighted Average Net Mortgage Rate, Class A-1 Noteholders' Interest
Carryover will accrue and be payable as provided in the Administration Agreement
and the Indenture.
For each Payment Date, the aggregate amount of each installment of
principal due and payable on the Class A-1 Notes will be equal to the amount
determined pursuant to the Indenture. The entire unpaid principal amount of
this Note shall be due and payable, if not then previously paid, on the Stated
Maturity set forth on the face hereof.
All payments of principal of, and interest on, the Notes shall be made only
from the Trust Estate Granted as security for the Notes[, the Policy referred to
below] and any other assets of the Issuer that have not been Granted as security
for any other notes or obligations of the Issuer, and each Holder hereof, by its
acceptance of this Note, agrees that it will have recourse solely against such
Trust Estate and such other assets of the Issuer and that neither
_________________________ in its individual capacity, any holder of a beneficial
interest in the Issuer nor any of their respective shareholders, partners,
beneficiaries, agents, officers, directors, employees, successors or assigns
shall be personally liable for any amounts payable, or performance due, under
this Note or the Indenture.
Payment of the then remaining unpaid principal amount of this Note on the
Stated Maturity of its final installment of principal or on such earlier date as
the Issuer shall be required to pay the then remaining unpaid principal amount
of this Note or payment of the Redemption Price payable on any date as of which
this Note has been called for redemption in full, shall be made upon
presentation of this Note to the office or agency of the Issuer maintained for
such purpose. Payments of interest on this Note due and payable on each Payment
Date or on any Redemption Date, to the extent this Note is not being paid in
full, together with any installment of principal of this Note due and payable on
each Payment Date or the Redemption Date, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register as of the last day of the month preceding the month in which such
Payment Date occurs (each a "Record Date").
Checks for amounts which include installments of principal due on this Note
shall be mailed to the Person entitled thereto at the address of such Person as
it appears on the Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of payment and checks
returned undelivered will be held for payment to the Person entitled thereto,
subject to the terms of the Indenture, at the office or agency in the United
States of America designated by the Issuer for such purpose pursuant to the
Indenture. 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 Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon.
If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Payment Date or Redemption Date which is prior to the Stated Maturity of the
final installment of principal hereof, then the Trustee, on behalf of the
Issuer, will notify the Person who was the registered Holder hereof on the last
day of the month prior to the month in which such Payment Date or Redemption
Date occurs, and the amount then due and payable shall, if sufficient funds
therefor are available, be payable only upon presentation of this Note to the
office or agency of the Issuer maintained for such purpose.
[The failure of the Issuer to pay when and as due any installment of
principal of (regardless of the lapse of any grace period) any Note shall not
constitute an Event of Default under the Indenture unless the aggregate
Principal Amount of the Notes exceeds the Pool Principal Balance with respect to
a Payment Date of the Pledged Mortgages after application of all available
amounts on deposit in the Distribution Account on a Payment Date or unless the
Notes are not paid in full at their Stated Maturity.]
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Notes, the Notes may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the Stated Maturity of the final
installment of principal of this Note, the amount payable to the Holder of this
Note will be equal to the Principal Amount of this Note on the date this Note
becomes so due and payable, together with accrued interest. Following the
acceleration of the maturity of the Notes, all amounts collected as proceeds of
the collateral securing the Notes or otherwise shall be applied as described in
the Indenture. Following such acceleration, interest on any overdue installments
of interest on all Notes shall be payable at the rate set forth in the
Indenture.
The Notes are not prepayable or redeemable at the option or direction of
the Issuer except that the Notes are subject to redemption in whole, but not in
part, at the option of the Issuer on any Payment Date after the earlier of (a)
ten years after the initial issuance of the Notes and (b) the Payment Date after
which the Pool Principal Balance with respect to such Payment Date, is ____% or
less of the Original Pool Principal Balance, at a redemption price equal to 101%
of the unpaid Principal Balance for the Class A-1 Notes, plus accrued and unpaid
interest thereon at the Class A-1 Interest Rate.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Note Register of the
Issuer, upon surrender of this Note for registration of transfer at the office
or agency designated by the Issuer pursuant to the Indenture, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of the same Class, of authorized
denominations and in the same aggregate initial principal amount, will be issued
to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Trustee, and any agent of the Issuer shall treat the
Person in whose name this Note is registered (i) on any Record Date, for
purposes of making payments, and (ii) on any other date for any other purposes,
as the owner hereof, whether or not this Note be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture permits[, subject to the rights of the Insurer and with
certain exceptions as therein provided,] the amendment thereof and the
modification of the rights and obligations of the Issuer and the rights of the
Holders of the Notes under the Indenture at any time by the Issuer with the
consent of the Holders of Notes representing two-thirds of the Principal Amount
of the Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the aggregate Principal Amount of
the Notes on behalf of the Holders of all the Notes[, subject to the rights of
the Insurer,] 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 Holder, at the time of the giving thereof, of
this Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future holders of this Note and of any Note issued
upon the registration of transfer herefor or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Trustee[, subject to the rights of the Insurer,]
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of the Holders of the Notes of any Series issued thereunder
and also permits certain amendments without the consent of Noteholders.
[As provided in the Indenture, the Insurer shall have the right to control
the exercise of certain remedies set forth therein and to exercise certain of
the voting rights of the Holders of the Notes and certain other rights may only
be exercised with the consent of the Insurer.]
The Notes are "Book Entry Notes" which will be available to investors only
through the book entry facilities of The Depository Trust Company, and note
certificates for all Classes of Notes will be available only under certain
limited circumstances as described in the Indenture.
AS PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
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 the extent permitted by applicable law, to pay the
principal of, and interest on, this Note at the times, place and rate, and in
the coin or currency herein prescribed.
EXHIBIT III
FORM OF CLASS A-2 NOTE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF. THE PRINCIPAL AMOUNT OF THIS NOTE MAY BE
ASCERTAINED ONLY BY OBTAINING A CONFIRMATION THEREOF FROM THE TRUSTEE UNDER THE
INDENTURE REFERRED TO BELOW.
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 SO 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 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.
_________________________
a ________________________ Statutory Business Trust
________________________ Notes
CLASS A-2
STATED MATURITY: ___________________ __, 20__
ISSUE DATE: ___________________ _, 199___
Initial Principal
Amount of this Note:
$___________ CUSIP NO. _________
CERTIFICATE NUMBER 1
________________________ (the "Issuer"), a statutory business trust formed
under a deposit trust agreement dated as of ________ __, 199_ and having
________________________, a ________________________, as Owner Trustee, for
value received, hereby promises to pay to ________________________ or registered
assigns, the principal sum of
___________________________________________________ DOLLARS ($___________) in
monthly installments on the twenty-fifth day of each month, commencing on
________ __, 199_ (each, a "Payment Date"), and ending on or before ________ __,
20_, (the "Stated Maturity" of such final installment of principal), and to pay
interest (computed on the basis of a 360-day year of twelve 30-day months) on
the Principal Amount (as defined in the Indenture hereinafter referred to) of
this Note on each Payment Date for the related period, commencing on the
immediately preceding Payment Date (or, in the case of the first Interest
Accrual Period, commencing on ________ __, 199_) and ending on the date
immediately preceding such Payment Date, as set forth herein and in the
Indenture and the Master Servicing Agreement referred to below. If any Payment
Date shall not be a "Business Day" (as defined in the Indenture), payment of the
amount due will be made on the next succeeding Business Day.
Installments of principal of this Note are due and payable as described in
the Indenture dated as of ________ __, 199_, among the Issuer and the Trustee
and ____________________ as such indenture may be amended or supplemented from
time to time as permitted thereby.
The principal of, and interest on, this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied as set forth in the Indenture. Any
installment of principal or interest which is not paid when and as due shall
bear interest as described herein and in the Indenture.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, ________________________ has caused this instrument to
be duly executed by its duly authorized officer.
Dated: ____________________ _, 199___ __________________________________
By: ______________________________,
By:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
____________________________,
as Trustee
By:_________________________,
Authorized Signatory
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____________________________ Notes (herein called the
"Notes"). The Notes are issuable in one or more classes; the Notes of particular
Classes being herein called the Class A-1 and Class A-2 Notes, all issued and to
be issued under the Issuer's Indenture dated as of ________ __, 199_ between the
Issuer and ____________________________ (the "Trustee", which term includes any
successor Trustee under the Indenture, which authorized the Notes, and reference
is hereby made thereto for a statement of the respective rights thereunder of
the Issuer, the Trustee and the Holders of the Notes of each particular Class
thereof and the terms upon which the Notes of each Class are, and are to be,
authenticated and delivered. The Note is one of the Class A-2 Notes.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture or, if not defined therein, in
the Administration Agreement.
The interest rate for the Class A-2 Notes (the "Class A-2 Interest Rate")
on each Payment Date shall be ____________________________.
As provided in the Indenture, the Notes are issuable in Classes which may
vary as is provided or permitted in the Indenture. Notes of each Class are
equally and ratably secured by the collateral pledged as security therefor to
the extent provided by the Indenture.
For each Payment Date, the aggregate amount of each installment of interest
due and payable on the Class A-2 Notes will be equal to the Class A-2 Interest
Payment Amount and any Class A-2 Noteholders' Interest Carryover for such
Payment Date.
The "Class A-2 Interest Payment Amount" means, as of any Payment Date, the
sum of (i) one month's interest at the Class A-2 Interest Rate on the then
outstanding Principal Amount of the Class A-2 Notes immediately prior to such
Payment Date and (ii) the sum of the amounts, if any, by which the amount
described in clause (i) above on each prior Payment Date exceeded the amount
actually distributed as interest on such Notes on such prior Payment Dates and
was not subsequently distributed, together with, to the extent permitted by
applicable law, interest on the amount described in clause (ii) at the Class A-2
Interest Rate[; provided, that, solely in the case where an Insurer Default
shall have occurred and is continuing, the rate at which the amount in clause
(i) above is calculated shall be the lesser of the Class A-2 Interest Rate and
the Weighted Average Net Mortgage Rate for the related Payment Date (unless such
Payment Date would be the seventh consecutive Payment Date on which at least one
of the Note Interest Rates would be equal to the Weighted Average Net Mortgage
Rate, in which case, this proviso shall be disregarded for such Payment Date
regardless of any continuation of such Insurer Default)].
For any Payment Date on which interest accrues on the Class A-2 Notes based
on the Weighted Average Net Mortgage Rate, Class A-2 Noteholders' Interest
Carryover will accrue and be payable as provided in the Administration Agreement
and the Indenture.
For each Payment Date, the aggregate amount of each installment of
principal due and payable on the Class A-2 Notes will be equal to the amount
determined pursuant to the Indenture. The entire unpaid principal amount of
this Note shall be due and payable, if not then previously paid, on the Stated
Maturity set forth on the face hereof.
All payments of principal of, and interest on, the Notes shall be made only
from the Trust Estate Granted as security for the Notes[, the Policy referred to
below] and any other assets of the Issuer that have not been Granted as security
for any other notes or obligations of the Issuer, and each Holder hereof, by its
acceptance of this Note, agrees that it will have recourse solely against such
Trust Estate and such other assets of the Issuer and that neither
___________________________ in its individual capacity, any holder of a
beneficial interest in the Issuer nor any of their respective shareholders,
partners, beneficiaries, agents, officers, directors, employees, successors or
assigns shall be personally liable for any amounts payable, or performance due,
under this Note or the Indenture.
Payment of the then remaining unpaid principal amount of this Note on the
Stated Maturity of its final installment of principal or on such earlier date as
the Issuer shall be required to pay the then remaining unpaid principal amount
of this Note or payment of the Redemption Price payable on any date as of which
this Note has been called for redemption in full, shall be made upon
presentation of this Note to the office or agency of the Issuer maintained for
such purpose. Payments of interest on this Note due and payable on each Payment
Date or on any Redemption Date, to the extent this Note is not being paid in
full, together with any installment of principal of this Note due and payable on
each Payment Date or the Redemption Date, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register as of the last day of the month preceding the month in which such
Payment Date occurs (each a "Record Date").
Checks for amounts which include installments of principal due on this Note
shall be mailed to the Person entitled thereto at the address of such Person as
it appears on the Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of payment and checks
returned undelivered will be held for payment to the Person entitled thereto,
subject to the terms of the Indenture, at the office or agency in the United
States of America designated by the Issuer for such purpose pursuant to the
Indenture. 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 Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor 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 or Redemption Date which is prior to the Stated Maturity of the
final installment of principal hereof, then the Trustee, on behalf of the
Issuer, will notify the Person who was the registered Holder hereof on the last
day of the month prior to the month in which such Payment Date or Redemption
Date occurs, and the amount then due and payable shall, if sufficient funds
therefor are available, be payable only upon presentation of this Note to the
office or agency of the Issuer maintained for such purpose.
[The failure of the Issuer to pay when and as due any installment of
principal of (regardless of the lapse of any grace period) any Note shall not
constitute an Event of Default under the Indenture unless the aggregate
Principal Amount of the Notes exceeds the Pool Principal Balance with respect to
a Payment Date of the Pledged Mortgages after application of all available
amounts on deposit in the Distribution Account on such Payment Date or unless
the Notes are not paid in full at their Stated Maturity.]
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Notes, the Notes may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the Stated Maturity of the final
installment of principal of this Note, the amount payable to the Holder of this
Note will be equal to the Principal Amount of this Note on the date this Note
becomes so due and payable, together with accrued interest. Following the
acceleration of the maturity of the Notes, all amounts collected as proceeds of
the collateral securing the Notes or otherwise shall be applied as described in
the Indenture. Following such acceleration, interest on any overdue installments
of interest on all Notes shall be payable at the rate set forth in the
Indenture.
The Notes are not prepayable or redeemable at the option or direction of
the Issuer except that the Notes are subject to redemption in whole, but not in
part, at the option of the Issuer on any Payment Date after the earlier of (a)
ten years after the initial issuance of the Notes and (b) the Payment Date after
which the Pool Principal Balance with respect to such Payment Date is ____% or
less of the Original Pool Principal Balance, at a redemption price equal to 100%
of the unpaid Principal Amount for the Class A-2 Notes, plus accrued and unpaid
interest thereon at the Class A-2 Interest Rate.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Note Register of the
Issuer, upon surrender of this Note for registration of transfer at the office
or agency designated by the Issuer pursuant to the Indenture, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of the same Class, of authorized
denominations and in the same aggregate initial principal amount, will be issued
to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Trustee, and any agent of the Issuer shall treat the Person in whose
name this Note is registered (i) on any Record Date, for purposes of making
payments, and (ii) on any other date for any other purposes, as the owner
hereof, whether or not this Note be overdue, and neither the Issuer, the Trustee
nor any such agent shall be affected by notice to the contrary.
The Indenture permits[, subject to the rights of the Insurer and with
certain exceptions as therein provided,] the amendment thereof and the
modification of the rights and obligations of the Issuer and the rights of the
Holders of the Notes under the Indenture at any time by the Issuer with the
consent of the Holders of Notes representing two-thirds of the Principal Amount
of the Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the aggregate Principal Amount of
the Notes on behalf of the Holders of all the Notes[, subject to the rights of
the Insurer,] 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 Holder, at the time of the giving thereof, of
this Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Trustee[, subject to the rights of the Insurer,]
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of the Holders of the Notes of any Series issued thereunder
and also permits certain amendments without the consent of Noteholders.
[As provided in the Indenture, the Insurer shall have the right to control
the exercise of certain remedies set forth therein and to exercise certain of
the voting rights of the Holders of the Notes and certain other rights may only
be exercised with the consent of the Insurer.]
The Notes are "Book Entry Notes" which will be available to investors only
through the book entry facilities of The Depository Trust Company, and note
certificates for all Classes of Notes will be available only under certain
limited circumstances as described in the Indenture.
AS PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
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 the extent permitted by applicable law, to pay the
principal of, and interest on, this Note at the times, place and rate, and in
the coin or currency herein prescribed.
[EXHIBIT IV
FORM OF NOTE INSURANCE POLICY]