INDENTURE
between
FREMONT HOME LOAN OWNER TRUST 1999-1,
as Issuer
and
FIRST UNION NATIONAL BANK,
as Indenture Trustee
Dated as of March 1, 1999
FREMONT HOME LOAN OWNER TRUST 1999-1
Home Loan Asset Backed Notes,
Series 1999-1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................
Section 1.02. Incorporation by Reference of Trust Indenture Act.............
Section 1.03. Rules of Construction.........................................
ARTICLE II
THE NOTES
Section 2.01. Form..........................................................
Section 2.02. Execution, Authentication, Delivery and Dating................
Section 2.03. Registration; Registration of Transfer and Exchange...........
Section 2.04. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost or Stolen Notes....................
Section 2.05. Persons Deemed Note Owners....................................
Section 2.06. Payment of Principal and/or Interest; Defaulted Interest......
Section 2.07. Cancellation..................................................
Section 2.08. Conditions Precedent to the Authentication of the Notes.......
Section 2.09. Release of Collateral.........................................
Section 2.10. Book-Entry Notes..............................................
Section 2.11. Notices to Clearing Agency....................................
Section 2.12. Definitive Notes..............................................
Section 2.13. Tax Treatment.................................................
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and/or Interest..........................
Section 3.02. Maintenance of Office or Agency...............................
Section 3.03. Money for Payments to Be Held in Trust........................
Section 3.04. Existence.....................................................
Section 3.05. Protection of Collateral......................................
Section 3.06. Annual Opinions as to Collateral..............................
Section 3.07. Performance of Obligations....................................
Section 3.08. Negative Covenants............................................
Section 3.09. Annual Statement as to Compliance.............................
Section 3.10. Covenants of the Issuer.......................................
Section 3.11. Restricted Payments...........................................
Section 3.12. Treatment of Notes as Debt for Tax Purposes...................
Section 3.13. Notice of Events of Default...................................
Section 3.14. Further Instruments and Acts..................................
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.......................
Section 4.02. Application of Trust Money....................................
Section 4.03. Repayment of Moneys Held by Paying Agent......................
ARTICLE V
REMEDIES
Section 5.01. Events of Default.............................................
Section 5.02. Acceleration of Maturity; Rescission and Annulment............
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee............................................
Section 5.04. Remedies; Priorities..........................................
Section 5.05. Optional Preservation of the Collateral.......................
Section 5.06. Limitation of Suits...........................................
Section 5.07. Unconditional Rights of Noteholders to Receive Principal
and/or Interest..............................................
Section 5.08. Restoration of Rights and Remedies............................
Section 5.09. Rights and Remedies Cumulative................................
Section 5.10. Delay or Omission Not a Waiver................................
Section 5.11. Control by Noteholders........................................
Section 5.12. Waiver of Past Defaults.......................................
Section 5.13. Undertaking for Costs.........................................
Section 5.14. Waiver of Stay or Extension Laws..............................
Section 5.15. Action on Notes...............................................
Section 5.16. Performance and Enforcement of Certain Obligations............
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee...................................
Section 6.02. Rights of Indenture Trustee...................................
Section 6.03. Individual Rights of Indenture Trustee........................
Section 6.04. Indenture Trustee's Disclaimer................................
Section 6.05. Notices of Default............................................
Section 6.06. Reports by Indenture Trustee to Holders.......................
Section 6.07. Compensation and Indemnity....................................
Section 6.08. Replacement of Indenture Trustee..............................
Section 6.09. Successor Indenture Trustee by ▇▇▇▇▇▇.........................
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee......................................................
Section 6.11. Eligibility; Disqualification.................................
Section 6.12. Preferential Collection of Claims Against Issuer..............
Section 6.13. Waiver of Setoff..............................................
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders..................................................
Section 7.02. Preservation of Information; Communications to Noteholders....
Section 7.03. Reports by Issuer.............................................
Section 7.04. Reports by Indenture Trustee..................................
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money and Claims Under the Guaranty Policy......
Section 8.02. Trust Accounts; Payments......................................
Section 8.03. General Provisions Regarding Accounts.........................
Section 8.04. Servicer's Monthly Statements.................................
Section 8.05. Release of Collateral.........................................
Section 8.06. Opinion of Counsel............................................
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders........
Section 9.02. Supplemental Indentures with Consent of Noteholders...........
Section 9.03. Execution of Supplemental Indentures..........................
Section 9.04. Effect of Supplemental Indentures.............................
Section 9.05. Conformity with Trust Indenture Act...........................
Section 9.06. Reference in Notes to Supplemental Indentures.................
Section 9.07. Amendments to Owner Trust Agreement...........................
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption...................................................
Section 10.02. Form of Redemption Notice....................................
Section 10.03. Notes Payable on Redemption Date; Provision for Payment of
Indenture Trustee and Securities Insurer....................
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc....................
Section 11.02. Form of Documents Delivered to Indenture Trustee.............
Section 11.03. Acts of Noteholders..........................................
Section 11.04. Notices, etc., to Indenture Trustee, Issuer, Rating
Agencies and Securities Insurer.............................
Section 11.05. Notices to Noteholders; ▇▇▇▇▇▇...............................
Section 11.06. Conflict with Trust Indenture Act............................
Section 11.07. Effect of Headings and Table of Contents.....................
Section 11.08. Successors and Assigns.......................................
Section 11.09. Separability.................................................
Section 11.10. Benefits of Indenture........................................
Section 11.11. Legal Holidays...............................................
Section 11.12. GOVERNING LAW................................................
Section 11.13. Counterparts.................................................
Section 11.14. Recording of Indenture.......................................
Section 11.15. Owner Trust Obligation.......................................
Section 11.16. No Petition..................................................
Section 11.17. Inspection...................................................
Section 11.18. Grant of Noteholder Rights to Securities Insurer.............
Section 11.19. Third Party Beneficiary......................................
Section 11.20. Suspension and Termination of Securities Insurer's Rights....
EXHIBITS
EXHIBIT A - Forms of Notes
This Indenture entered into effective March 1, 1999
("Indenture"), between FREMONT HOME LOAN OWNER TRUST 1999-1, a Delaware business
trust, as Issuer (the "Issuer"), and FIRST UNION NATIONAL BANK, as Indenture
Trustee (the "Indenture Trustee"),
W I T N E S S E T H T H A T:
In consideration of the mutual covenants herein contained, the
Issuer and the Indenture Trustee hereby agree as follows for the benefit of each
of them and for the equal and ratable benefit of the holders of the Issuer's
Home Loan Asset Backed Notes, Series 1999-1 (the "Notes") and Financial Security
Assurance Inc. (the "Securities Insurer").
GRANTING CLAUSE
Subject to the terms of this Indenture, the Issuer hereby
Grants on the Closing Date, to the Indenture Trustee, as Indenture Trustee for
the benefit of the Holders of the Notes and the Securities Insurer, all of the
Issuer's right, title and interest in and to: (i) the Trust Estate (as defined
in the Sale and Servicing Agreement); (ii) the Sale and Servicing Agreement
(including the Issuer's right to cause the Transferor to repurchase the Home
Loans from the Issuer under certain circumstances described therein); (iii) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, property insurance proceeds, condemnation awards, rights to payment of
any and every kind and other forms of obligations and receivables, instruments
and other property which at any time constitute all or part of or are included
in the proceeds of any of the foregoing; (iv) all funds on deposit from time to
time in the Trust Accounts (including the Certificate Distribution Account); and
(v) all other property of the Owner Trust from time to time (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, and to secure compliance with the provisions of this Indenture, all as
provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes and the Securities Insurer, acknowledges such ▇▇▇▇▇,
accepts the trusts hereunder and agrees to perform its duties required in this
Indenture to the best of its ability to the end that the interests of the
Holders of the Notes may adequately and effectively be protected. The Indenture
Trustee agrees and acknowledges that possession of the Indenture Trustee's Home
Loan Files will be held by the Custodian for the benefit of the Indenture
Trustee in Maryland. The Indenture Trustee further agrees and acknowledges that
each other item of Collateral that is physically delivered to the Indenture
Trustee will be held on behalf of the Indenture Trustee in North Carolina.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) Except as otherwise specified
herein or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture. Except
as otherwise specified herein or as the context may otherwise require,
capitalized terms used but not otherwise defined herein have the respective
meanings set forth in the Sale and Servicing Agreement for all purposes of this
Indenture.
"Act" has the meaning specified in Section 11.03(a) hereof.
"Administration Agreement" means the Administration Agreement,
dated as of March 1, 1999, among the Administrator, the Issuer and the Company.
"Administrator" means First Union National Bank, a national
banking association, or any successor Administrator under the Administration
Agreement.
"Affiliate" means, with respect to any specified 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 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.
"Authorized Officer" means, with respect to the Issuer, any
officer of the Owner Trustee who is authorized to act for the Owner Trustee in
matters relating to the Issuer and who is identified on the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee if the Administrator is not the Indenture Trustee (as such list may be
modified or supplemented from time to time thereafter).
"Basic Documents" means the Certificate of Owner Trust, the
Owner Trust Agreement, this Indenture, the Sale and Servicing Agreement, the
Servicing Agreement, the Home Loan Purchase Agreement, the Administration
Agreement, the Insurance Agreement, the Indemnification Agreement, the Custodial
Agreement, the Note Depository Agreement, the Notes and other documents and
certificates delivered in connection herewith or therewith.
"Book-Entry Notes" means a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10 hereof.
"Business Day" means any day other than (a) a Saturday or
Sunday, or (b) a day on which banking institutions are authorized or obligated
by law or executive order to be closed in a city at any of the following
locations: (i) The City of New York, (ii) where the corporate trust office of
the Indenture Trustee is located, (iv) where the servicing operations of the
Servicer are primarily located or (v) where the master servicing operations of
the Master Servicer are primarily located.
"Certificate of Owner Trust" means the certificate of trust of
the Issuer substantially in the form of Exhibit B to the Owner Trust Agreement.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for which from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means March 23, 1999.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause
of this Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means Fremont Investment & Loan, a California
industrial loan company, or any successor in interest thereto.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered, which office at date of execution of this Agreement is
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-1179; Attention: Structured Finance Trust Group, or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" means the Notes as set forth in Section
2.12 hereof.
"Depositor" shall mean PaineWebber Mortgage Acceptance
Corporation IV, a Delaware corporation, in its capacity as depositor under the
Sale and Servicing Agreement, or any successor in interest thereto.
"Depository Institution" means any depository institution or
trust company, including the Indenture Trustee, that (a) is incorporated under
the laws of the United States of America or any State thereof, (b) is subject to
supervision and examination by federal or state banking authorities and (c) has
outstanding unsecured commercial paper or other short-term unsecured debt
obligations that are rated A-1 by S&P (or comparable ratings if S&P is not the
Rating Agency).
"DTC" means The Depository Trust Company, a New York
corporation, or any successor thereto.
"Due Period" means, with respect to any Payment Date, the
period commencing on the 2nd day of the calendar month immediately preceding the
month of such Payment Date and ending on the 1st day of the month in which such
Payment Date occurs.
"Event of Default" has the meaning specified in Section 5.01
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any general
partner ▇▇▇▇▇▇▇.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create and ▇▇▇▇▇ ▇ ▇▇▇▇
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to this Indenture. A Grant of the Collateral or of any
other agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the granting party or otherwise, and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Note Register.
"Indenture Trustee" means First Union National Bank, a
national banking association, as Indenture Trustee under this Indenture, or any
successor Indenture Trustee hereunder.
"Independent" means, when used with respect to any specified
Person, that the Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, the Transferor, the Securities Insurer and any Affiliate
of any of the foregoing Persons, (b) does not have any direct financial interest
or any material indirect financial interest in the Issuer, any such other
obligor, the Transferor, the Securities Insurer or any Affiliate of any of the
foregoing Persons and (c) is not connected with the Issuer, any such other
obligor, the Transferor, the Securities Insurer or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01 hereof,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Insurance Agreement" means the Insurance and Indemnification
Agreement, dated as of March 1, 1999, among the Securities Insurer, Fremont
Investment & Loan, as Transferor and Master Servicer, the Depositor and the
Issuer.
"Issuer" or "Owner Trust" means Fremont Home Loan Owner Trust
1999-1 until a successor replaces it and, thereafter, means the successor and,
for purposes of any provision contained herein and required by the TIA, each
other obligor on the Notes.
"Issuer Order" and "Issuer Request" mean a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee.
"Majority Noteholders" means until such time as the Note
Principal Balance of the Notes has been reduced to zero, the holder or holders
of in excess of 50% of the Note Principal Balance of all Notes then Outstanding.
"Master Servicer" means Fremont Investment & Loan, a
California industrial loan company.
"Maturity Date" means, with respect to the Notes, March 25,
2030.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"Note" means a Fremont Home Loan Owner Trust 1999-1, Home Loan
Asset Backed Note, Series 1999-1.
"Note Depository Agreement" means the agreement to be entered
into among the Issuer, the Indenture Trustee and The Depository Trust Company,
as the initial Clearing Agency, relating to the Book-Entry Notes.
"Note Owner" means, with respect to a Book-Entry Note, the
Person that is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 2.03 hereof.
"Officer's Certificate" means a certificate signed by any
Authorized Officer of the Issuer or, if authorized under the Administration
Agreement, the Administrator or the Master Servicer on behalf of the Issuer,
under the circumstances described in, and otherwise complying with, the
applicable requirements of Section 11.01 hereof, and delivered to the Indenture
Trustee. Unless otherwise specified, any reference in this Indenture to an
Officer's Certificate shall be to an Officer's Certificate of any Authorized
Officer of the Issuer or, if authorized under the Administration Agreement, the
Administrator.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be an
employee of or counsel to the party required to provide such opinion or opinions
and, in each such case, who shall be satisfactory to the Indenture Trustee and
the Securities Insurer, and which opinion or opinions shall be addressed to the
Indenture Trustee, as Indenture Trustee, and the Securities Insurer and shall
comply with any applicable requirements of Section 11.01 hereof and shall be in
form and substance satisfactory to the Indenture Trustee and the Securities
Insurer.
"Outstanding" means, with respect to any Note and as of the
date of determination, any Note 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 the payment for which money
in the necessary amount has theretofore been deposited with the
Indenture Trustee or any Paying Agent 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 for such notice satisfactory to the Indenture 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 Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser; provided, however, that in
determining whether the Holders of the requisite percentage of
Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic
Document, Notes owned by the Issuer, any other obligor upon the Notes,
the Transferor or any Affiliate of any of the foregoing Persons shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes that the Indenture Trustee knows to be
owned in such manner shall be disregarded. Notes owned in such manner
that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee
that the pledgee has the right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon the Notes,
the Transferor or any Affiliate of any of the foregoing Persons; and
(iv) Notes for which the related Maturity Date has
occurred;
provided, that Notes that have been paid with funds provided under the Guaranty
Policy shall be deemed to be Outstanding until the Securities Insurer has been
reimbursed with respect thereto as evidenced by a written notice from the
Securities Insurer delivered to the Indenture Trustee, and the Securities
Insurer shall be deemed to the Holder thereof to the extent of any payments made
by the Securities Insurer.
"Outstanding Amount" means the aggregate principal amount of
the Notes, Outstanding at the date of determination.
"Owner Trust Agreement" means the Owner Trust Agreement, dated
as of March 1, 1999, among PaineWebber Mortgage Acceptance Corporation IV, as
Depositor, the Company, Wilmington Trust Company, as Owner Trustee, and First
Union National Bank, as Paying Agent.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee under the Owner Trust Agreement,
or any successor Owner Trustee under the Owner Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 hereof and is authorized by the Issuer to make payments to and
payments from the Note Payment Account, including payment of principal of or
interest on the Notes on behalf of the Issuer.
"Payment Date" means the 25th day of any month or if such 25th
day is not a Business Day, the first Business Day immediately following such
day, commencing in April 1999.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization, limited liability
company, limited liability partnership or government or any agency or political
subdivision thereof.
"Predecessor Note" means, with respect to any particular Note,
every previous Note 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 2.04 hereof in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency" means either or both of (i) Moody's or (ii)
S&P. If no such organization or successor thereto is any longer in existence,
"Rating Agency" shall be a nationally recognized statistical rating organization
or other comparable Person designated by the Master Servicer and approved by the
Securities Insurer, notice of which designation shall have been given to the
Indenture Trustee, the Securities Insurer, the Servicer and the Issuer.
"Rating Agency Condition" means, with respect to any action to
which a Rating Agency Condition applies, that each Rating Agency shall have been
given 10 days (or such shorter period as is acceptable to each Rating Agency)
prior notice thereof and that each of the Depositor, the Servicer, the Master
Servicer, the Securities Insurer, the Owner Trustee and the Issuer shall have
been notified by the Rating Agencies in writing that such action will not result
in a reduction, withdrawal or qualification of the then current internal ratings
assigned to the Notes by each of the Rating Agencies without respect to the
Securities Insurer.
"Record Date" means, as to each Payment Date, the last
Business Day of the month immediately preceding the month in which such Payment
Date occurs.
"Redemption Date" means in the case of a redemption of the
Notes pursuant to Section 10.01 hereof, the Payment Date specified by the Master
Servicer or the Issuer pursuant to such Section 10.01.
"Registered Holder" means the Person in the name of which a
Note is registered on the Note Register on the applicable Record Date.
"Residual Interest Certificate" has the meaning assigned to
such term in Section 1.1 of the Owner Trust Agreement.
"Responsible Officer" means, with respect to the Indenture
Trustee, any officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Assistant Treasurer,
Assistant Secretary or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"S&P" means Standard and Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereto.
"Sale and Servicing Agreement" means the Sale and Master
Servicing Agreement dated as of March 1, 1999, among the Issuer, the Depositor,
the Transferor and Master Servicer and First Union National Bank, as Indenture
Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Insurer" means Financial Security Assurance Inc.,
a New York monoline insurance company.
"Servicer" shall mean Fairbanks Capital Corp., a Utah
corporation, in its capacity as servicer under the Servicing Agreement, and any
successor Servicer thereunder.
"Servicing Agreement" shall mean the Servicing Agreement which
incorporates by reference the Agreement Regarding Standard Servicing Terms, each
dated as of March 1, 1999, between Fremont Investment & Loan and the Servicer.
"State" means any one of the States of the United States of
America or the District of Columbia.
"Transferor" means Fremont Investment & Loan, a California
industrial loan company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code as in effect in the relevant jurisdiction, as amended
from time to time.
Section 1.02. Incorporation by Reference of Trust Indenture
Act.
(a) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
(b) All other TIA terms used in this Indenture that are
defined in the TIA, defined by TIA reference to another statute or defined by
rule of the Securities and Exchange Commission have the respective meanings
assigned to them by such definitions.
Section 1.03. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in
the plural include the singular; and
(vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented (as provided in such
agreements) and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors
and assigns.
ARTICLE II
THE NOTES
Section 2.01. Form. The Notes shall be designated as the
"Fremont Home Loan Owner Trust 1999-1 Home Loan Asset Backed Notes, Series
1999-1". Each Note shall be in substantially the form set forth in Exhibit A
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing 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 thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, all as
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
Each Note shall be dated the date of its authentication. The
terms of the Notes are set forth in Exhibit A hereto. The terms of each Note are
part of the terms of this Indenture.
Section 2.02. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Issuer by an Authorized Officer of
the Owner Trustee or the Administrator. The signature of any such Authorized
Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Owner Trustee or the
Administrator shall bind the Issuer, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of such Notes.
Subject to the satisfaction of the conditions set forth in
Section 2.08 hereof, the Indenture Trustee shall upon Issuer Order authenticate
and deliver the Notes for original issue in the following principal amount:
$415,545,505. The aggregate principal of the Notes Outstanding at any time may
not exceed such amount.
The Notes that are authenticated and delivered by the
Indenture Trustee to or upon the order of the Issuer on the Closing Date shall
be dated March 23, 1999. All other Notes that are authenticated after the
Closing Date for any other purpose under the Indenture shall be dated the date
of their authentication. The Notes shall be issuable as registered Notes in the
minimum denomination of $25,000 initial principal amount and integral multiples
of $1,000 in excess thereof; provided however, that any Note may be issued in
such denominations as may be necessary to represent the remainder of the
aggregate principal amount of the Notes.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.03. 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 Indenture Trustee initially shall be the "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the Indenture Trustee and the
Securities Insurer prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of the Note
Register, and the Indenture Trustee and the Securities Insurer shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee and the Securities Insurer shall have the
right to rely upon a certificate executed on behalf of the Note Registrar by an
Executive Officer thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
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
hereof, the Issuer shall execute, and the Indenture Trustee shall authenticate
and the Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes in any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes in any authorized denominations, of a like aggregate principal amount 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
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, 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 by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Securities Transfer Agents' Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.
No service charge shall be made to a Holder or the Securities
Insurer 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 that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 9.06 hereof not
involving any transfer.
The preceding provisions of this Section 2.03 notwithstanding,
the Issuer shall not be required to make, and the Note Registrar need not
register, transfers or exchanges of Notes selected for redemption or of any Note
for a period of 15 days preceding the due date for any payment with respect to
such Note.
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee and the
Securities Insurer such security or indemnity as may reasonably be required by
them to hold the Issuer, the Securities Insurer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Indenture Trustee that such Note has been acquired by a bona fide purchaser,
an Authorized Officer of the Owner Trustee or the Administrator on behalf of the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note; provided, however, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable, or shall have been called
for redemption, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Redemption
Date without surrender thereof. If, after the delivery of such replacement Note
or payment of a destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a bona fide purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment such original Note, the
Issuer, the Securities Insurer and the Indenture Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to which it was
delivered or any Person taking such replacement Note from such Person to which
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer, the Securities Insurer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section
2.04, the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.04 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.04 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 2.05. Persons Deemed Note Owners. Prior to due
presentment for registration of transfer of any Note, the Issuer, the Securities
Insurer, the Indenture Trustee and any agent of the Issuer, the Securities
Insurer or the Indenture Trustee may treat the Person in the name of which any
Note is registered (as of the day of determination) as the Note Owner for the
purpose of receiving payments of principal of and interest, if any, on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Issuer, the Securities Insurer, the Indenture Trustee or any agent
of the Issuer, the Securities Insurer or the Indenture Trustee shall be affected
by notice to the contrary.
Section 2.06. Payment of Principal and/or Interest; Defaulted
Interest.
(a) Each Note shall accrue interest at the Note Interest Rate,
and such interest shall be payable on each Payment Date as specified in Exhibit
A hereto, subject to Section 3.01 hereof. Any installment of interest or
principal, if any, payable on any Note that is punctually paid or duly provided
for by the Issuer on the applicable Payment Date shall be paid to the Person in
the name of which such Note (or one or more Predecessor Notes) is registered on
the Record Date by check mailed first-class postage prepaid to such Person's
address as it appears on the Note Register on such Record Date, except that,
unless Definitive Notes have been issued pursuant to Section 2.12 hereof, with
respect to Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment will be made
by wire transfer in immediately available funds to the account designated by
such nominee and except for the final installment of principal payable with
respect to such Note on a Payment Date or on the Maturity Date (and except for
the Termination Price for any Note called for redemption pursuant to Section
10.01 hereof), which shall be payable as provided in Section 2.06(b) below. The
funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.03 hereof.
(b) The principal of each Note shall be payable in
installments on each Payment Date as provided in the form of Note set forth in
Exhibit A hereto. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
earlier of (i) the Maturity Date, (ii) the Redemption Date or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Noteholders or the Securities Insurer shall
have declared the Notes to be immediately due and payable in the manner
provided; however, that if on the date any such Event of Default occurs, no
Securities Insurer Default exists and is continuing, the Securities Insurer, in
its sole discretion, may determine whether or not to accelerate payment on the
Notes.
All principal payments on the Notes shall be made pro rata to
the Noteholders. The Indenture Trustee shall notify the Person in the name of
which a Note is registered at the close of business on the Record Date preceding
the Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Payment Date and shall specify
that such final installment will be payable only upon presentation and surrender
of such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. A copy of such form of notice shall
be sent to the Securities Insurer by the Indenture Trustee. Notices in
connection with redemptions of Notes shall be mailed to Noteholders as provided
in Section 10.02 hereof. Promptly following the date on which all principal of
and interest on the Notes has been paid in full and the Notes have been
surrendered to the Indenture Trustee, the Indenture Trustee shall, if the
Securities Insurer has paid any amount in respect of the Notes under the
Guaranty Policy that has not been reimbursed to the Securities Insurer, deliver
such surrendered Notes to the Securities Insurer.
Section 2.07. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall promptly be cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall promptly be cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 2.07, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, however, that such
Issuer Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee.
Section 2.08. Conditions Precedent to the Authentication of
the Notes. The Notes may be authenticated by the Indenture Trustee, upon Issuer
Request and upon receipt by the Indenture Trustee of the following:
(a) An Issuer Order authorizing the execution and
authentication of such Notes by the Issuer.
(b) All of the items of Collateral which shall be delivered to
the Indenture Trustee or its designee.
(c) An executed counterpart of the Owner Trust Agreement.
(d) An Opinion of Counsel addressed to the Indenture Trustee
and the Securities Insurer to the effect that:
(i) the Owner Trustee has full power, authority and legal
right to execute, deliver and perform its obligations under the Trust
Agreement and to consummate the transactions contemplated thereby;
(ii) the Issuer has been duly formed, is validly existing
as a business trust under the Business Trust Statute and has power and
authority to execute, deliver, issue, and perform, as applicable, this
Indenture, the Administration Agreement, the Sale and Servicing
Agreement, the Insurance Agreement, the Indemnification Agreement, the
Custodial Agreement and the Note Depository Agreement and to consummate
the transactions contemplated thereby;
(iii) assuming due authorization, execution and delivery
hereof by each party thereto, Indenture is the valid, legal and binding
agreement of the Issuer, enforceable against the Issuer in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or
other laws relating to the creditors' rights generally and to general
principles of equity including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except that the
enforcement of rights with respect to indemnification and contribution
obligations may be limited by applicable law;
(iv) upon due authorization, execution and delivery of this
Indenture by each party hereto, and due execution, authentication, and
delivery of the Notes, such Notes will be legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or
other laws relating to creditors' rights generally, and to general
principles of equity including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity), and will be validly issued
and outstanding and entitled to the benefits of the Indenture;
(v) the conditions precedent to the authentication and
delivery of the Bonds as set forth in this Indenture have been complied
with;
(vi) on the Closing Date, the Issuer shall cause to be
furnished to the Indenture Trustee and the Securities Insurer an
Opinion of Counsel either stating that, in the opinion of such counsel,
this Indenture has been properly recorded and filed so as to make
effective the lien intended to be created thereby, and reciting the
details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien effective; and
(vii) any other matters as the Indenture Trustee may
reasonably request;
(e) An Officer's Certificate complying with the requirements
of Section 11.01 hereof and stating that:
(i) the Issuer is not in Default under this Indenture and
the issuance of the Notes applied for will not result in any breach of
any of the terms, conditions or provisions of, or constitute a default
under, the Owner Trust Agreement, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Issuer is a party
or by which it is bound, or any order of any court or administrative
agency entered in any Proceeding to which the Issuer is a party or by
which it may be bound or to which it may be subject, and that all
conditions precedent provided in this Indenture relating to the
authentication and delivery of the Notes applied for have been complied
with;
(ii) the Issuer is the owner of the all of the Home Loans,
has not assigned any interest or participation in the Home Loans (or,
if any such interest or participation has been assigned, it has been
released) and has the right to Grant all of the Home Loans to the
Indenture Trustee;
(iii) the Issuer has Granted to the Indenture Trustee all
of its right, title and interest in and to the Collateral, and has
delivered or caused the same to be delivered to the Indenture Trustee;
(iv) letters signed by the Rating Agencies confirming that
the Notes have been rated "Aaa" by ▇▇▇▇▇'▇ and "AAA" by S&P have been
delivered to the Indenture Trustee;
(v) all conditions precedent provided for in this Indenture
relating to the authentication of the Notes have been complied with;
and
(f) A fair value certificate from ▇▇▇▇▇ Real Estate Industries
Group, Inc. with respect to the Home Loans.
Section 2.09. Release of Collateral.
(a) Except as otherwise provided in subsections (b) and (c) of
this Section 2.09, Section 11.01 hereof and the terms of the Basic Documents,
the Indenture Trustee shall release property from the lien of this Indenture
only upon receipt of an Issuer Request accompanied by an Officer's Certificate,
an Opinion of Counsel and Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(l) or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any such
Independent Certificates.
(b) The Servicer, on behalf of the Issuer, shall be entitled
to obtain a release from the lien of this Indenture for any Home Loan and the
related Mortgaged Property at any time (i) after a payment by the Transferor or
the Issuer of the Purchase Price of the Home Loan, (ii) after a Qualified
Substitute Home Loan is substituted for such Home Loan and payment of the
Substitution Adjustment, if any, (iii) after liquidation of the Home Loan in
accordance with Section 4.11 of the Sale and Servicing Agreement and the deposit
of all Recoveries thereon in the Collection Account, or (iv) upon the
termination of a Home Loan (due to, among other causes, a prepayment in full of
the Home Loan and sale or other disposition of the related Mortgaged Property),
if the Issuer delivers to the Indenture Trustee an Issuer Request (A)
identifying the Home Loan and the related Mortgaged Property to be released, (B)
requesting the release thereof, (C) setting forth the amount deposited in the
Collection Account with respect thereto, and (D) certifying that the amount
deposited in the Collection Account (x) equals the Purchase Price of the Home
Loan, in the event a Home Loan and the related Mortgaged Property are being
released from the lien of this Indenture pursuant to item (i) above, (y) equals
the Substitution Adjustment related to the Qualified Substitute Home Loan and
the Deleted Home Loan released from the lien of the Indenture pursuant to item
(ii) above, or (z) equals the entire amount of Recoveries received with respect
to such Home Loan and the related Mortgaged Property in the event of a release
from the lien of this Indenture pursuant to items (iii) or (iv) above.
(c) The Indenture Trustee shall, if requested by the Servicer,
temporarily release or cause the Custodian temporarily to release to the
Servicer the Indenture Trustee's Home Loan File pursuant to the provisions of
Section 7.02 of the Sale and Servicing Agreement upon compliance by the Servicer
with the provisions thereof; provided, however, that the Indenture Trustee's
Home Loan File shall have been stamped to signify the Issuer's pledge to the
Indenture Trustee under the Indenture.
Section 2.10. Book-Entry Notes. The Notes, when authorized by
an Issuer Order, will be issued in the form of typewritten Notes representing
the Book-Entry Notes, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by or on behalf of the Issuer. The Book-Entry Notes
shall be registered initially on the Note Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Note Owner will receive a
definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12 hereof. Unless and until definitive, fully registered
Notes (the "Definitive Notes") have been issued to such Note Owners pursuant to
Section 2.12 hereof:
(i) the provisions of this Section 2.10 shall be in full
force and effect;
(ii) the Note Registrar, the Indenture Trustee and the
Securities Insurer shall be entitled to deal with the Clearing Agency
for all purposes of this Indenture (including the payment of principal
of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole Holder of the Notes, and shall have
no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section
2.10 conflict with any other provisions of this Indenture, the
provisions of this Section 2.10 shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants pursuant to the Note Depository
Agreement. Unless and until Definitive Notes are issued pursuant to
Section 2.12 hereof, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Notes, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Notes and has delivered such instructions to the Indenture Trustee.
Section 2.11. Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to such Note Owners pursuant
to Section 2.12 hereof, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency and shall have no obligation to such Note Owners.
Section 2.12. Definitive Notes.
If (i) the Administrator advises the Indenture Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Book-Entry Notes and the
Administrator is unable to locate a qualified successor, (ii) the Administrator
at its option advises the Indenture Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Owners of the Book-Entry Notes representing
beneficial interests aggregating at least a majority of the Outstanding Notes
advise the Clearing Agency in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of such
Note Owners, then the Clearing Agency shall notify all Note Owners, the
Securities Insurer and the Indenture Trustee of the occurrence of such event and
of the availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar, the Securities Insurer
or the Indenture Trustee shall be liable for any delay in delivery of such
instructions and each of them may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
Section 2.13. Tax Treatment. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that for all
purposes, including federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Collateral. The Issuer, by entering into this Indenture, and each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of an interest in the applicable Book-Entry Note), agree to treat the Notes for
all purposes, including federal, state and local income, single business and
franchise tax purposes, as indebtedness of the Issuer.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and/or Interest. The Issuer
will duly and punctually pay (or will cause to be paid duly and punctually) the
principal of and interest on the Notes in accordance with the terms of the Notes
and this Indenture. Without limiting the foregoing, subject to and in accordance
with Section 8.02(c) hereof, the Issuer will cause to be paid to the Noteholders
all amounts on deposit in the Note Payment Account on each Payment Date
deposited therein pursuant to the Sale and Servicing Agreement (less any amounts
representing income from Permitted Investments) for the benefit of the Notes.
Amounts properly withheld under the Code by any Person from a payment to any
Noteholder of interest and/or principal shall be considered as having been paid
by the Issuer or the Securities Insurer, as applicable, to such Noteholder for
all purposes of this Indenture. The Notes shall be non-recourse obligations of
the Issuer and shall be limited in right of payment to amounts available from
the Collateral and any amounts received by the Indenture Trustee under the
Guaranty Policy in respect of the Notes, as provided in this Indenture. The
Issuer shall not otherwise be liable for payments on the Notes. If any other
provision of this Indenture shall be deemed to conflict with the provisions of
this Section 3.01, the provisions of this Section 3.01 shall control.
Section 3.02. Maintenance of Office or Agency. The Issuer will
or will cause the Administrator to maintain in the Borough of Manhattan in The
City of New York or in Charlotte, North Carolina an office or agency where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer hereby initially appoints the Administrator to serve as
its agent for the foregoing purposes and to serve as Paying Agent with respect
to the Notes and the Certificates. The Issuer will give prompt written notice to
the Indenture Trustee and the Securities Insurer of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
Section 3.03. Money for Payments to Be Held in Trust. As
provided in Section 8.02(a) and (b) hereof, all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Payment Account pursuant to Section 8.02(c) hereof shall be made
on behalf of the Issuer by the Indenture Trustee or by the Paying Agent, and no
amounts so withdrawn from the Note Payment Account for payments of Notes shall
be paid over to the Issuer except as provided in this Section 3.03.
On or before the seventh Business Day preceding each Payment
Date and the Redemption Date, the Paying Agent shall deposit or cause to be
deposited in the Note Payment Account an aggregate sum sufficient to pay the
amounts due on such Payment Date or the Redemption Date under the Notes, such
sum to be held in trust for the benefit of the Persons entitled thereto, and
(unless the Paying Agent is the Indenture Trustee) shall promptly notify the
Indenture Trustee and the Securities Insurer of its action or failure so to act.
Any Paying Agent shall be appointed by Issuer Order with
written notice thereof to the Indenture Trustee and the Securities Insurer. Any
Paying Agent appointed by the Issuer shall be a Person which would be eligible
to be Indenture Trustee hereunder as provided in Section 6.11 hereof. The Issuer
shall not appoint any Paying Agent (other than the Indenture Trustee) which is
not, at the time of such appointment, a Depository Institution.
The Issuer will cause each Paying Agent other than the
Administrator or the Indenture Trustee to execute and deliver to the Indenture
Trustee and the Securities Insurer an instrument in which such Paying Agent
shall agree with the Indenture Trustee (and if the Indenture Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this Section,
that such Paying Agent will:
(i) 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;
(ii) give the Indenture Trustee and the Securities Insurer
notice of any default by the Issuer (or any other obligor upon the
Notes) of which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay
to the Indenture Trustee all sums held by it in trust for the payment
of Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; provided,
however, that with respect to withholding and reporting requirements
applicable to original issue discount (if any) on the Notes, the Issuer
shall have first provided the calculations pertaining thereto to the
Indenture Trustee.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds or
abandoned property, any money held by the Indenture Trustee or any Paying Agent
in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for two years after such amount has become due and payable
shall be discharged from such trust and be paid to either (i) the Issuer on
Issuer Request and with the prior written consent of the Securities Insurer as
long as no Securities Insurer Default has occurred and is continuing or (ii) if
such money or a portion thereof was paid by the Securities Insurer to the
Indenture Trustee for the payment of principal of or interest on such Note, to
the Securities Insurer in lieu of the Issuer to the extent of such unreimbursed
amount; 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 Indenture Trustee
or such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense and direction of the
Issuer cause to be published, once in a newspaper of general circulation in The
City of New York customarily published in the English language on each Business
Day, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Issuer
or the Securities Insurer, as applicable. The Indenture Trustee shall also adopt
and employ, at the expense and direction of the Issuer, any other reasonable
means of notification of such repayment (including, but not limited to, mailing
notice of 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 Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.04. Existence.
(a) Subject to subparagraph (b) of this Section 3.04, the
Issuer will keep in full effect its existence, rights and franchises as a
business trust under the laws of the State of Delaware (unless, subject to the
prior written consent of the Securities Insurer, it becomes, or any successor
Issuer hereunder is or becomes, organized under the laws of any other State or
of the United States of America, in which case the Issuer will keep in full
effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes and the
Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to
Section 10.2 of the Owner 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, the Person succeeding to the Owner Trustee under the Owner
Trust Agreement may exercise every right and power of the Owner Trustee under
this Indenture with the same effect as if such Person had been named as the
Owner Trustee herein.
Section 3.05. Protection of Collateral. The Issuer will from
time to time and upon the direction of the Securities Insurer execute and
deliver all such reasonable supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(i) provide further assurance with respect to the Grant of
all or any portion of the Collateral;
(ii) maintain or preserve the lien and security interest
(and the priority thereof) 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 rights with respect to the Collateral; or
(v) preserve and defend title to the Collateral and the
rights of the Indenture Trustee, the Noteholders and the Securities
Insurer in such Collateral against the claims of all persons and
parties.
The Issuer hereby designates the Administrator, its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.05.
Section 3.06. Annual Opinions as to Collateral. On or before
July 15th in each calendar year, beginning in 2000, the Issuer shall furnish to
the Indenture Trustee and the Securities Insurer an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as is necessary to maintain the lien and security interest 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 the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until July 15th of the following calendar year.
Section 3.07. Performance of Obligations.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Sale and Servicing Agreement or such
other instrument or agreement.
(b) The Issuer may contract with or otherwise obtain the
assistance of other Persons (including, without limitation, the Master Servicer
and the Administrator under the Administration Agreement) to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee and the Securities Insurer in an
Officer's Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Master Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture. The Administrator must at all times be the same Person as the
Indenture Trustee.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, in the Basic Documents
and in the instruments and agreements included in the Collateral, including but
not limited to (i) filing or causing to be filed all UCC financing statements
and continuation statements required to be filed by the terms of this Indenture
and the Sale and Servicing Agreement and (ii) recording or causing to be
recorded all Mortgages, Assignments of Mortgage, all intervening Assignments of
Mortgage and all assumption and modification agreements required to be recorded
by the terms of the Sale and Servicing Agreement, in accordance with and within
the time periods provided for in this Indenture and/or the Sale and Servicing
Agreement, as applicable. Except as otherwise expressly provided therein, the
Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the Indenture Trustee,
the Securities Insurer and the Holders of at least a majority of the Outstanding
Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Master Servicer Event of Default under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee, the Securities Insurer, the
Servicer and the Rating Agencies thereof, and shall specify in such notice the
action, if any, the Issuer is taking with respect to such Master Servicer Event
of Default. If such a Master Servicer Event of Default shall arise from the
failure of the Master Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Home Loans, the Issuer
shall take all reasonable steps available to it to enforce the obligations of
the Master Servicer thereunder.
(e) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees (i) that it will not,
without the prior written consent of the Indenture Trustee and, if a Securities
Insurer Default has not occurred and is not continuing, the Securities Insurer,
amend, modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of, the
terms of any Collateral (except to the extent otherwise provided in the Sale and
Servicing Agreement) or the Basic Documents, or waive timely performance or
observance by the Servicer, the Master Servicer or the Depositor under the Sale
and Servicing Agreement; and (ii) that any such amendment shall not (A) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
payments that are required to be made for the benefit of the Noteholders or (B)
reduce the aforesaid percentage of the Outstanding Notes that is required to
consent to any such amendment, without the consent of the Holders of all
Outstanding Notes. If any such amendment, modification, supplement or waiver
shall so be consented to by the Indenture Trustee and, if a Securities Insurer
Default has not occurred and is not continuing, the Securities Insurer, the
Issuer agrees, promptly following a request by the Indenture Trustee or the
Securities Insurer to do so, to execute and deliver, in its own name and at its
own expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or the
Sale and Servicing Agreement, sell, transfer, exchange or otherwise
dispose of any of the properties or assets of the Issuer, including
those included in the Collateral, unless directed to do so by the
Indenture Trustee acting at the direction of the Securities Insurer,
unless a Securities Insurer Default has occurred and is continuing, or
the Securities Insurer;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the
Collateral;
(iii) engage in any business or activity other than as
permitted by the Owner Trust Agreement or other than in connection
with, or relating to, the issuance of Notes pursuant to this Indenture,
or amend the Owner Trust Agreement as in effect on the Closing Date
other than in accordance with Section 11.1 thereof;
(iv) issue debt obligations under any other indenture;
(v) incur or assume any indebtedness 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;
(vi) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person;
(vii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as may expressly be
permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or
the proceeds thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law, in each case on any of the
Mortgaged Properties and arising solely as a result of an action or
omission of the related Obligors or (C) permit the lien of this
Indenture not to constitute a valid first priority (other than with
respect to such tax, mechanics' or other lien) security interest in the
Collateral;
(viii) remove the Administrator without cause unless the
Rating Agency Condition shall have been satisfied in connection with
such removal; or
(ix) take any other action or fail to take any action which
may cause the Issuer to be taxable as (a) an association pursuant to
Section 7701 of the Code and the corresponding regulations or (b) as a
taxable mortgage pool pursuant to Section 7701(i) of the Code and the
corresponding regulations.
Section 3.09. Annual Statement as to Compliance. The Issuer
will deliver to the Indenture Trustee and the Securities Insurer, within 120
days after the end of each fiscal year of the Issuer (commencing in the fiscal
year 2000), an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year and of its performance under this Indenture has been made under
such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in its compliance with any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
Section 3.10. Covenants of the Issuer. All covenants of the
Issuer in this Indenture are covenants of the Issuer and are not covenants of
the Owner Trustee. The Owner Trustee is, and any successor Owner Trustee under
the Owner Trust Agreement will be, entering into this Indenture solely as Owner
Trustee under the Owner Trust Agreement and not in its respective individual
capacity, and in no case whatsoever shall the Owner Trustee or any such
successor Owner Trustee be personally liable on, or for any loss in respect of,
any of the statements, representations, warranties or obligations of the Issuer
hereunder, as to all of which the parties hereto agree to look solely to the
property of the Issuer.
Section 3.11. Restricted Payments. The Issuer shall not,
directly or indirectly, (i) pay any dividend or make any payment (by reduction
of capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer or Master Servicer, (ii) redeem,
purchase, retire or otherwise acquire for value any such ownership or equity
interest or security or (iii) set aside or otherwise segregate any amounts for
any such purpose; provided, however, that the Issuer may make, or cause to be
made, payments to the Servicer, the Master Servicer, the Indenture Trustee, the
Owner Trustee, the Securities Insurer, the Noteholders and the holders of the
Residual Interest Certificate as contemplated by Section 8.02(c) hereof, and to
the extent funds are available for such purpose under, the Sale and Servicing
Agreement or the Owner Trust Agreement. The Issuer will not, directly or
indirectly, make or cause to be made payments to or distributions from the
Collection Account except in accordance with this Indenture and the Basic
Documents.
Section 3.12. Treatment of Notes as Debt for Tax Purposes. The
Issuer shall, and shall cause the Administrator to, treat the Notes as
indebtedness for all purposes.
Section 3.13. Notice of Events of Default. The Issuer shall
give the Indenture Trustee, the Securities Insurer, the Master Servicer, the
Depositor and the Rating Agencies prompt written notice of each Event of Default
hereunder, each default on the part of the Master Servicer, the Servicer or the
Transferor of its obligations under the Sale and Servicing Agreement and each
default on the part of the Transferor of its obligations under the Home Loan
Purchase Agreement.
Section 3.14. Further Instruments and Acts. Upon request of
the Indenture Trustee or the Securities Insurer, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes (except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon including any such
right of the Securities Insurer pursuant to Section 2.06(b) or the proviso to
the definition of "Outstanding", (iv) Sections 3.03, 3.04, 3.05, 3.08 and 3.10
hereof, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.07
hereof and the obligations of the Indenture Trustee under Section 4.02 hereof)
and (vi) the rights of Noteholders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or any of them),
and the Indenture Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when all of the following have occurred:
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i) Notes
that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.04 hereof and (ii) Notes for the payment
of which money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.03 hereof) shall
have been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
a. shall have become due and payable, or
b. will become due and payable within one year following the
Maturity Date, or
c. are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the
giving of notice of redemption by the Indenture Trustee in the
name, and at the expense, of the Issuer,
d. and the Issuer, in the case of clause a., b. or c. above, has
irrevocably deposited or caused irrevocably to be deposited
with the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due to the Maturity Date or the Redemption
Date (if Notes shall have been called for redemption pursuant
to Section 10.01 hereof), as the case may be; and
(B) the latest of (a) 18 months after payment in full of all
outstanding obligations under the Notes, (b) the payment in full of all unpaid
Trust Fees and Expenses and all sums owing to the Securities Insurer under the
Insurance Agreement as confirmed in writing by the Securities Insurer, (c) the
Guaranty Policy is surrendered to the Securities Insurer and (d) the date on
which the Issuer has paid or caused to be paid all other sums payable hereunder
by the Issuer; and
(C) the Issuer shall have delivered to the Indenture Trustee
and the Securities Insurer an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA or the Indenture Trustee) an Independent Certificate
from a firm of certified public accountants, each meeting the applicable
requirements of Section 11.01(a) hereof and, subject to Section 11.02 hereof,
each stating that all conditions precedent herein provided for, relating to the
satisfaction and discharge of this Indenture with respect to the Notes, have
been complied with.
Section 4.02. Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Sections 3.03 and 4.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the Notes,
the Insurance Agreement and this Indenture, to the payment, either directly or
through any Paying Agent, as the Indenture Trustee may determine, to the
Securities Insurer and to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon; but such moneys need not be
segregated from other funds except to the extent required herein or in the Sale
and Servicing Agreement or required by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.03 hereof and thereupon such Paying Agent shall
be released from all further liability with respect to such moneys.
ARTICLE V
REMEDIES
Section 5.01. Events of Default.
(a) "Event of Default," wherever used herein, means 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):
(i) Notwithstanding that there may be insufficient sums in
the Note Payment Account for payment thereof on the related Payment
Date, default in the payment of any interest on any Note when the same
becomes due and payable, and continuance of such default for a period
of five (5) days; or
(ii) Notwithstanding that there may be insufficient sums in
the Note Payment Account for payment thereof on the related Payment
Date, default in the payment of the principal of or any installment of
the principal of any Note (i) when the same becomes due and payable or
(ii) on the Maturity Date; or
(iii) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture (other than
a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture, the
Insurance Agreement, the Sale and Servicing Agreement or in any
certificate or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material respect as of
the time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in respect
of which such misrepresentation or warranty was incorrect shall not
have been eliminated or otherwise cured, for a period of 30 days after
there shall have been given, by registered or certified mail, to the
Issuer by the Indenture Trustee at the direction of the Securities
Insurer, or to the Issuer and the Indenture Trustee by the Holders of
at least 25% of the Outstanding Notes and with the prior written
consent of the Securities Insurer (so long as no Securities Insurer
Default has occurred and is continuing), a written notice specifying
such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a notice of Default
hereunder; or
(iv) an Event of Default under ss.5.01 of the Insurance
Agreement or in any certificate or other writing delivered pursuant to
the Insurance Agreement or in connection therewith proving to have been
incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise
cured, for a period of 30 days after there shall have been given, by
registered or certified mail, to the Issuer by the Indenture Trustee at
the direction of the Securities Insurer, or to the Issuer and the
Indenture Trustee by the Holders of at least 25% of the Outstanding
Notes and with the prior written consent of the Securities Insurer (so
long as no Securities Insurer Default has occurred and is continuing),
a written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice
is a notice of Default hereunder; or
(v) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Collateral in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Collateral, or ordering the
winding-up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(vi) the commencement by the Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Issuer to
the entry of an order for relief in an involuntary case under any such
law, or the consent by the Issuer to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Collateral, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
any action by the Issuer in furtherance of any of the foregoing.
The Issuer shall promptly deliver to the Indenture Trustee and
the Securities Insurer written notice in the form of an Officer's Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clauses (iii) and (iv) above, the status of such event
and what action the Issuer is taking or proposes to take with respect thereto.
Section 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default shall occur and a Securities Insurer Default
has occurred and is continuing then and in every such case the Indenture Trustee
may or the Indenture Trustee as directed in writing by the Majority Noteholders
shall declare all the Notes to be then immediately due and payable, by a notice
in writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon any such declaration the Outstanding Amount of such Notes, together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable; provided, however, that if on the date any
such Event of Default occurs or is continuing, and no Securities Insurer Default
exists and is continuing, then the Securities Insurer, in its sole discretion,
may determine whether or not to accelerate payment on the Notes. In the event of
any acceleration of the Notes by operation of this Section 5.02, the Indenture
Trustee shall continue to be entitled to make claims under the Guaranty Policy
pursuant to Section 8.02(e) hereof. Payments under the Guaranty Policy following
acceleration of the Notes shall be applied by the Indenture Trustee:
FIRST: to the payment of amounts due and unpaid on the Notes
in respect of interest, ratably, without preference or priority of any
kind; and
SECOND: to the payment of amounts due and unpaid on the Notes
in respect of principal, ratably, without preference or priority of any
kind, until the Notes are paid in full.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the moneys due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, either the Securities Insurer (so long as a Securities Insurer Default
has not occurred and is continuing) or the Majority Noteholders (if a Securities
Insurer Default has occurred and is continuing), by written notice to the Issuer
and the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
1. all payments of principal of and/or interest on all Notes and
all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
2. all sums paid or advanced by the Indenture Trustee or the
Securities Insurer hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee
or the Securities Insurer and their respective agents and
counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.12 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee made at the direction of the Securities Insurer, pay to the Indenture
Trustee, for the benefit of the Holders of the Notes and the Securities Insurer,
the whole amount then due and payable on such Notes for principal and/or
interest, with interest upon the overdue principal and, to the extent payment at
such rate of interest shall be legally enforceable, upon overdue installments of
interest at the rate borne by the Notes and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and the Securities Insurer and their respective agents and
counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee may, with the prior written
consent of the Securities Insurer (so long as no Securities Insurer Default has
occurred and is continuing) and shall at the direction of the Securities Insurer
(so long as no Securities Insurer Default has occurred and is continuing) or the
Majority Noteholders (if a Securities Insurer Default has occurred and is
continuing) institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable. At any time, so long as no Securities Insurer Default has occurred and
is continuing, if the Securities Insurer is the holder of any Note pursuant to
Section 2.06(b) hereof or all amounts due to all other Holders of the Notes
pursuant to the Notes and this Indenture have been paid in full, then the
Securities Insurer may, in its own name, institute any Proceedings or take any
action permitted under this Section 5.03 to collect amounts due hereunder from
the Issuer or any other obligor of the Notes.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee shall, at the direction of the Securities Insurer, and if a
Securities Insurer Default has occurred and is continuing, the Indenture Trustee
may, in its discretion, and shall at the direction of the majority of the
Holders of the Outstanding Notes, as more particularly provided in Section 5.04
hereof, proceed to protect and enforce its rights and the rights of the
Securities Insurer and the Noteholders by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an ownership
interest in the Collateral, Proceedings under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, upon the direction of the Securities Insurer, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and/or interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and the Securities Insurer,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith), the Securities
Insurer and the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of Notes in any election of a trustee,
a standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders, the Securities
Insurer and the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee, the Securities Insurer or the Holders of
Notes allowed in any judicial proceedings relative to the Issuer, its
creditors and its property; and any trustee, receiver, liquidator,
custodian or other similar official in any such Proceeding is hereby
authorized by each of such Noteholders and the Securities Insurer to
make payments to the Indenture Trustee and, in the event that the
Indenture Trustee shall consent to the making of payments directly to
such Noteholders and the Securities Insurer, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred and all advances made by the
Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder or the Securities Insurer any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof or the Securities Insurer or to authorize the Indenture Trustee
to vote in respect of the claim of any Noteholder in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, shall be for the ratable benefit of the Holders of the Notes and the
Securities Insurer.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing, the Indenture Trustee shall, at the direction of the Securities
Insurer, and if a Securities Insurer Default has occurred and is continuing, the
Indenture Trustee may, and at the direction of a majority of the Holders of the
Outstanding Notes shall, do one or more of the following (subject to Section
5.05 hereof):
(i) institute Proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on the
Notes and amounts due to the Securities Insurer or under this Indenture
with respect thereto, whether by declaration or otherwise, enforce any
judgment obtained, and collect from the Issuer and any other obligor
upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure with respect to the Collateral;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce the
rights and remedies of the Indenture Trustee, the Securities Insurer or
the Noteholders; and
(iv) sell the Collateral or any portion thereof or rights
or interest therein in a commercially reasonable manner, at one or more
public or private sales called and conducted in any manner permitted by
law; provided, however, (x) if a Securities Insurer Default has
occurred and is continuing, the Indenture Trustee may not sell or
otherwise liquidate the Collateral following an Event of Default,
unless (A) the Holders of 100% of the Outstanding Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then
due and unpaid upon such Notes for principal and/or interest or (C) the
Indenture Trustee determines that the Collateral will not continue to
provide sufficient funds for the payment of principal of and interest
on the Notes as they would have become due if the Notes had not been
declared due and payable, and the Indenture Trustee obtains the consent
of Holders of 66-2/3% of the Outstanding Notes, and (y) if no
Securities Insurer Default has occurred and is continuing, the
Securities Insurer may direct the Indenture Trustee and the Indenture
Trustee shall comply with any such direction, to sell or otherwise
liquidate the Collateral following an Event of Default if (1) the
conditions under either A, B or C in clause (x) above are met or (2)
the Securities Insurer has paid the Notes in full under the Guaranty
Policy. In determining such sufficiency or insufficiency with respect
to clause (B) and (C) of this subsection (a)(iv), the Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the Indenture Trustee, any Indenture Trustee Fees
due and payable, for any costs or expenses incurred by it in connection
with the enforcement of the remedies provided for in this Article V and
any other amounts payable to the Indenture Trustee pursuant to Section
6.07 hereof;
SECOND: to the Servicer, any Servicing Compensation due and
payable under the Sale and Servicing Agreement;
THIRD: to the Master Servicer, any Master Servicing
Compensation due and unpaid;
FOURTH: to the Securities Insurer for any Guaranty Insurance
Premiums due and payable;
FIFTH: to the Owner Trustee, any Owner Trustee Fees due and
payable;
SIXTH: to the Noteholders for amounts due and unpaid on the
Notes for interest, pro rata among the Holders of the Notes for
interest, according to the amounts due and payable pursuant to Section
5.01(d) of the Sale and Servicing Agreement, until the Note Principal
Balance of the Notes is reduced to zero;
SEVENTH: to the Noteholders for amounts due and unpaid on the
Notes for principal, pro rata among the Holders of the Notes, according
to the amounts due and payable pursuant to Section 5.01(d) of the Sale
and Servicing Agreement, until the Note Principal Balance of the Notes
is reduced to zero;
EIGHTH: to the Securities Insurer for any amounts then due and
payable pursuant to Section 5.01(e) of the Sale and Servicing
Agreement;
NINTH: to the Noteholders for amounts due and unpaid on the
Notes of Excess Spread, pro rata among the Holders of the Notes,
according to the amounts due and payable pursuant to Section 5.01(e) of
the Sale and Servicing Agreement, until the Note Principal Balance is
reduced to zero;
TENTH: to the Noteholders for amounts due and unpaid on the
Notes of Noteholder's Interest Carry-Forward Amount, pro rata among the
Holders of the Notes, according to the amounts due and payable pursuant
to Section 5.01(e) of the Sale and Servicing Agreement, pro rata, the
Noteholders' Interest Carry Forward Amount due and unpaid; and
ELEVENTH: concurrently to the Servicer in an amount equal to
any outstanding Nonrecoverable Servicing Advances and to the Master
Servicer in an amount equal to any outstanding Nonrecoverable Monthly
Advances, then to reimburse the Servicer the Servicing Fee Recovery
Amount if, any, and then for deposit into the Certificate Distribution
Account for payment to the holders of the Residual Interest
Certificate.
The Indenture Trustee may fix a record date and payment date
for any payment to be made to the Noteholders pursuant to this Section. At least
15 days before such record date, the Indenture Trustee shall mail to each
Noteholder, the Securities Insurer and the Issuer a notice that states the
record date, the payment date and the amount to be paid.
Section 5.05. Optional Preservation of the Collateral. If the
Notes have been declared to be due and payable under Section 5.02 hereof
following an Event of Default and such declaration and its consequences have not
been rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Collateral. It is the desire of the parties hereto
and the Noteholders that there be at all times sufficient funds for the payment
of principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to maintain possession
of the Collateral. In determining whether to maintain possession of the
Collateral, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder for as long as a Securities Insurer Default has not
occurred or is not continuing and, if a Securities Insurer Default has occurred
and is continuing, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Notes
have made written request to the Indenture Trustee to institute such Proceeding
in respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 30 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceeding; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 30-day period by the Majority
Noteholders.
It is understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Notes, each group representing less than a Majority Noteholders, the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
Section 5.07. Unconditional Rights of Noteholders to Receive
Principal and/or Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the applicable Maturity Date thereof expressed in such
Note or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) 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 5.08. Restoration of Rights and Remedies. If the
Indenture Trustee, the Securities 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 Indenture Trustee, the Securities Insurer or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee, the
Securities Insurer and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee, the Securities Insurer and the Noteholders shall continue as though no
such Proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee, the
Securities 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 5.10. Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee, the Securities Insurer or any Holder of any
Note to exercise any right or remedy accruing upon any Default or Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Default or Event of Default or an acquiescence therein. Every right and remedy
given by this Article V or by law to the Indenture Trustee, the Securities
Insurer or to the Noteholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee, the Securities Insurer or
by the Noteholders, as the case may be, subject, in each case, however, to the
right of the Securities Insurer to control any such right and remedy, except as
provided in Section 11.20.
Section 5.11. Control by Noteholders. Subject to the rights of
the Securities Insurer under Section 11.18 hereof, the Majority Noteholders
shall have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee with respect to the
Notes or exercising any trust or power conferred on the Indenture Trustee;
provided, however, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.04 hereof, any
direction to the Indenture Trustee to sell or liquidate the Collateral shall be
by Holders of Notes representing not less than 100% of the Notes Outstanding;
(c) if the conditions set forth in Section 5.05 hereof have
been satisfied and the Indenture Trustee elects to retain the Collateral
pursuant to such Section, then any direction to the Indenture Trustee by Holders
of Notes representing less than 100% of the Notes Outstanding to sell or
liquidate the Collateral shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of the Noteholders set forth in
this Section 5.11, subject to Section 6.01 hereof, the Indenture Trustee need
not take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
Section 5.12. Waiver of Past Defaults. The Securities Insurer
may, or at any time when a Securities Insurer Default has occurred and is
continuing, the Majority Noteholders may waive any past Default or Event of
Default and its consequences, except a Default (a) in the payment of principal
of or interest on any of the Notes or (b) in respect of a covenant or provision
hereof that cannot be modified or amended without the consent of the Securities
Insurer (so long as no Securities Insurer Default has occurred and is
continuing) or the Holder of each Note. In the case of any such waiver, the
Issuer, the Indenture Trustee, the Securities Insurer and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Section 5.13. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such ▇▇▇▇▇▇'s acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee or the Securities Insurer, (b) any suit instituted by any
Noteholder, or group of Noteholders, in each case holding in the aggregate more
than 10% of the Notes or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture (or, in
the case of redemption, on or after the Redemption Date).
Section 5.14. Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee or the Securities Insurer, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15. Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee, the Securities Insurer or the
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Collateral or upon any of the assets of the Issuer. Any
money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.04(b) hereof.
Section 5.16. Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture Trustee or
the Securities Insurer to do so and at the Master Servicer's expense, the Issuer
shall take all such lawful action as the Indenture Trustee or the Securities
Insurer may request to compel or secure the performance and observance by the
Transferor, the Servicer and the Master Servicer, as applicable, of each of
their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer, under or in connection with the
Sale and Servicing Agreement to the extent and in the manner directed by the
Indenture Trustee or the Securities Insurer, including the transmission of
notices of default on the part of the Transferor or the Master Servicer
thereunder and the institution of legal or administrative actions or proceedings
to compel or secure performance by the Transferor, the Master Servicer or the
Servicer of each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall, at the direction of the Securities Insurer, and at the
direction (which direction shall be in writing or by telephone, confirmed in
writing promptly thereafter) of the Holders of 66-2/3% of the Notes Outstanding
shall, with the prior written consent of the Securities Insurer (so long as no
Securities Insurer Default has occurred and is continuing), exercise all rights,
remedies, powers, privileges and claims of the Issuer, as Securityholder,
against the Transferor, the Servicer or the Master Servicer under or in
connection with the Sale and Servicing Agreement, including the right or power
to take any action to compel or secure performance or observance by the
Transferor, the Servicer or the Master Servicer, as the case may be, of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension, or waiver under the Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
Section 5.17. Rights in Respect of Insolvency Proceedings.
(a) In the event that the Indenture Trustee has received a
certified copy of an order of the appropriate court that any scheduled payment
of principal of or interest on a Note has been voided in whole or in part as a
preference payment under applicable bankruptcy law, the Indenture Trustee shall
so notify the Securities Insurer, shall comply with the provisions of the
Guaranty Policy to obtain payment by the Securities Insurer of such voided
scheduled payment, and shall, at the time it provides notice to the Securities
Insurer, notify, by mail to Holders of the Notes that, in the event that any
Holder's scheduled payment is so recovered, such Holder will be entitled to
payment pursuant to the terms of the Policy, a copy of which shall be made
available through the Indenture Trustee, the Securities Insurer or the Fiscal
Agent, if any, and the Indenture Trustee shall furnish to the Securities Insurer
or its Fiscal Agent, if any, its records evidencing the payments of principal of
and interest on the Notes, if any, which have been made by the Indenture Trustee
and subsequently recovered from Holders, and the dates on which such payments
were made.
(b) The Indenture Trustee shall promptly notify the Securities
Insurer of either of the following as to which it has actual knowledge: (i) the
commencement of any proceeding by or against the Issuer commenced under the
United States Bankruptcy Code or any other applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (an "Insolvency Proceeding") and
(ii) the making of any claim in connection with any Insolvency Proceeding
seeking the avoidance as a preferential transfer (a "Preference Claim") of any
payment of principal of, or interest on, the Notes. Each Holder, by its purchase
of Notes, and the Indenture Trustee hereby agree that, so long as a the
Securities Insurer Default shall not have occurred and be continuing, the
Securities Insurer may at any time during the continuation of an Insolvency
Proceeding direct all matters relating to such Insolvency Proceeding, including,
without limitation, (i) all matters relating to any Preference Claim, (ii) the
direction of any appeal of any order relating to any Preference Claim at the
expense of the Securities Insurer but subject to reimbursement as provided in
the Insurance Agreement and (iii) the posting of any surety, supersedes or
performance Note pending any such appeal. In addition, and without limitation of
the foregoing, as set forth in Section 5.18, the Securities Insurer shall be
subrogated to, and each Holder and the Indenture Trustee hereby delegate and
assign, to the fullest extent permitted by law the rights of the Indenture
Trustee and each Holder in the conduct of any Insolvency Proceeding, including,
without limitation, all rights of any party to an adversary proceeding action
with respect to any court order issued in connection with any such Insolvency
Proceeding.
(c) The Indenture Trustee shall furnish to the Securities
Insurer or its Fiscal Agent its records evidencing the payments of principal of
and interest on the Notes which have been made by the Indenture Trustee and
subsequently recovered from Noteholders, and the dates on which such payments
were made.
Section 5.18. Effect of Payments by The Securities Insurer;
Subrogation.
(a) Anything herein to the contrary notwithstanding, any
payment with respect to the principal of or interest on the Notes which is made
with moneys received pursuant to the terms of the Policy shall not be considered
payment by the Issuer of the Notes, shall not discharge the Issuer in respect of
its obligation to make such payment and shall not result in the payment of or
the provision for the payment of the principal of or interest on the Notes
within the meaning of Section 4.01 hereof. The Issuer and the Indenture Trustee
acknowledge that without the need for any further action on the part of the
Securities Insurer, the Issuer, the Indenture Trustee or the Note Registrar (i)
to the extent the Securities Insurer makes payments, directly or indirectly, on
account of principal of or interest on the Notes to the Holders of such Notes,
the Securities Insurer will be fully subrogated to the rights of such Holders to
receive such principal and interest from the Issuer, and (ii) the Securities
Insurer shall be paid such principal and interest in its capacity as a Holder of
Notes but only from the sources and in the manner provided herein for the
payment of such principal and interest in each case only after the Holders of
the Notes have received payment of all scheduled payments of principal and
interest due thereon.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith or gross negligence on its
part, the Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
that the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it
is proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.11
hereof.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this
Section 6.01.
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(f) Money held in trust by the Indenture Trustee shall be
segregated from other funds held by the Indenture Trustee except to the extent
permitted by law or the terms of this Indenture or the Sale and Servicing
Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; provided, however, that the Indenture Trustee
shall not refuse or fail to perform any of its duties hereunder solely as a
result of nonpayment of its normal fees and expenses and provided, further, that
nothing in this Section 6.01(g) shall be construed to limit the exercise by the
Indenture Trustee of any right or remedy permitted under this Indenture or
otherwise in the event of the Issuer's failure to pay the Indenture Trustee's
fees and expenses pursuant to Section 6.07 hereof. In determining that such
repayment or indemnity is not reasonably assured to it, the Indenture 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 Collateral pursuant to Section 6.07 hereof.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section.
(i) The Indenture Trustee shall not be required to take notice
or be deemed to have notice or knowledge of any Event of Default (other than an
Event of Default pursuant to Section 5.01(a)(i) or (ii) hereof) unless a
Responsible Officer of the Indenture Trustee shall have received written notice
thereof or otherwise shall have actual knowledge thereof. In the absence of
receipt of notice or such knowledge, the Indenture Trustee may conclusively
assume that there is no Event of Default.
(j) The Indenture Trustee shall, and hereby agrees, that it
will hold the Guaranty Policy in trust and will hold any proceeds of any claim
on the Guaranty Policy in trust solely for the use and benefit of the
Noteholders. The Indenture Trustee will deliver to the Rating Agencies notice of
any change made to the Guaranty Policy.
Section 6.02. Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee so long as the Indenture
Trustee remains liable to the Issuer, the Noteholders and the Securities Insurer
for the performance of its duties hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission by
the Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may, at the expense of the
Transferor as provided under Section 6.07, consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
Section 6.03. Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12
hereof.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, shall not be accountable
for the Issuer's use of the proceeds from the Notes, or responsible for any
statement of the Issuer in the Indenture or in any document issued in connection
with the sale of the Notes or in the Notes other than the Indenture Trustee's
certificate of authentication.
Section 6.05. Notices of Default. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default within
90 days after it occurs and to the Securities Insurer notice of such Default
promptly after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice to Noteholders if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
Section 6.06. Reports by Indenture Trustee to Holders. The
Indenture Trustee shall deliver to each Noteholder such information reasonably
available to the Indenture Trustee as may be required to enable such Holder to
prepare its federal and state income tax returns.
Section 6.07. Compensation and Indemnity. As compensation for
its services hereunder, the Indenture Trustee shall be entitled to receive, on
each Payment Date, the Indenture Trustee's Fee pursuant to Section 8.02(c)
hereof (which compensation shall not be limited by any law on compensation of a
trustee of an express trust) and shall be entitled to reimbursement by the
Master Servicer for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts and Opinions of Counsel hereunder. The Issuer agrees to
cause the Master Servicer, at its expense, to indemnify the Indenture Trustee
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer, the Servicer and the Master Servicer promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee so to notify the Issuer,
the Servicer and the Master Servicer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall or shall cause the Master Servicer to
defend any such claim, and the Indenture Trustee may have separate counsel
reasonably acceptable to the Master Servicer and the Issuer shall or shall cause
the Master Servicer to pay the reasonable fees and expenses of such counsel.
Neither the Issuer, the Servicer nor the Master Servicer need reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section 6.07 shall survive the discharge of this Indenture.
When the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.01(a)(v) hereof with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation
or removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee
may resign at any time by so notifying the Issuer and the Securities Insurer.
The Securities Insurer or the Holders of a majority of the Outstanding Notes
with the consent of the Securities Insurer (so long as no Securities Insurer
Default has occurred and is continuing) may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee
subject to Section 6.11. The Issuer shall remove the Indenture Trustee upon the
prior written consent of the Securities Insurer if:
(a) the Indenture Trustee fails to comply with Section 6.11
hereof;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy
exists in the office of Indenture Trustee for any reason (the Indenture Trustee
in such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee acceptable to the
Securities Insurer.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee, the Securities
Insurer and to the Issuer. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Securities Insurer, the Issuer or the Holders of a
majority of the Outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11
hereof, any Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee acceptable to the Securities Insurer.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.08, the Issuer's and the Master Servicer's
obligations under Section 6.07 hereof shall continue for the benefit of the
retiring Indenture Trustee acceptable to the Securities Insurer.
Section 6.09. Successor Indenture Trustee by ▇▇▇▇▇▇. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided, however, that such corporation or banking association shall otherwise
be qualified and eligible under Section 6.11 hereof. The Indenture Trustee shall
provide the Securities Insurer and the Rating Agencies prior written notice of
any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power, with the prior written consent of the Securities
Insurer (so long as no Securities Insurer Default has occurred and is
continuing), and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Noteholders, such title to
the Collateral, or any part hereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Indenture
Trustee or the Securities Insurer may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.11 hereof and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.08 hereof; provided that the Indenture Trustee shall
deliver notice of any such co-trustee or separate trustee to the Securities
Insurer.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, jointly with
the Indenture Trustee, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection to, the Indenture
Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee shall be acceptable to the Securities Insurer and shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Indenture Trustee shall comply
with TIA Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.12. Preferential Collection of Claims Against
Issuer. The Indenture Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee
which has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
Section 6.13. Waiver of Setoff. The Indenture Trustee hereby
expressly waives any and all rights of setoff that the Indenture Trustee may
otherwise at any time have under the applicable law with respect to any Trust
Account and agrees that amounts in the Trust Accounts shall at all times be held
and applied solely in accordance with the Basic Documents.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date and (ii) three months after the last Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Holders of Notes as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished. The Indenture Trustee, or if the Indenture Trustee
is not the Note Register, the Issuer, shall furnish to the Securities Insurer in
writing on an annual basis, and at such other times as the Securities Insurer
may request, a copy of the list of Noteholders.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 hereof and the names and addresses of Holders of Notes received
by the Indenture Trustee in its capacity as Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in such Section 7.01
upon receipt of a new list so furnished. The Indenture Trustee shall make such
list available to the Securities Insurer on request.
(b) 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) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee and the Securities
Insurer, within 15 days after the Issuer is required to file the same
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 from time to time by rules
and regulations prescribe) that the Issuer may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee, the Securities
Insurer and the Commission in accordance with the rules and regulations
prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.03(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA
Section 313(a), within 60 days after each March 1, beginning with March 1, 2000,
the Indenture Trustee shall mail to the Securities Insurer and to each
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and each
securities exchange, if any, on which the Notes are listed. The Issuer shall
notify the Indenture Trustee if and when the Notes are listed on any securities
exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money and Claims Under the
Guaranty Policy.
(a) Except as otherwise expressly provided herein, the
Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply
all such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Collateral, the Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V hereof.
(b) The Notes will be insured by the Guaranty Policy pursuant
to the terms set forth therein, notwithstanding any provisions to the contrary
contained in this Indenture or the Sale and Servicing Agreement. All amounts
received under the Guaranty Policy shall be used solely for the payment to
Noteholders of principal and interest on the Notes.
Section 8.02. Trust Accounts; Payments.
(a) On or prior to the Closing Date, the Issuer shall cause
the Master Servicer to establish and maintain, in the name of the Indenture
Trustee for the benefit of the Noteholders and the Securities Insurer, or on
behalf of the Owner Trustee for the benefit of the Securityholders, the
Collection Account as provided in Article V of the Sale and Servicing Agreement.
The Indenture Trustee shall establish and maintain, in the name of the Indenture
Trustee on behalf of the holders of the Notes, the Note Payment Account as
provided in Article V of the Sale and Servicing Agreement. The Indenture Trustee
shall establish and maintain, in the name of the Indenture Trustee on behalf of
the holders of the Notes, the Policy Payments Account as provided in Article V
of the Sale and Servicing Agreement. The Indenture Trustee shall also establish
and maintain an account (the "Certificate Distribution Account") in the name of
the Owner Trustee on behalf of the holders of the Residual Interest
Certificates. The Indenture Trustee shall deposit amounts into each of the
accounts in accordance with the terms hereof, the Sale and Servicing Agreement
and the Servicer's Monthly Remittance Report.
(b) On the fourth Business Day prior to each Payment Date, the
Servicer will remit to the Indenture Trustee for deposit into the Note Payment
Account, the applicable portions of the Available Collection Amount from the
Collection Account, pursuant to Section 5.01(b)(2) of the Sale and Servicing
Agreement and the Indenture Trustee will deposit such amount in the Note Payment
Account. On each Payment Date, to the extent funds are available in the Note
Payment Account, the Indenture Trustee shall either retain funds in the Note
Payment Account for payment on such day or make the withdrawals from the Note
Payment Account and deposits into the Certificate Distribution Account for
distribution on such Payment Date as required pursuant to Section 5.01(c) of the
Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, to the extent
funds are available in the Note Payment Account, the Indenture Trustee shall
make the following payments from the amounts on deposit in the Note Payment
Account in the following order of priority (except as otherwise provided in
Section 5.04(b) hereof):
(i) (A) to the Indenture Trustee, an amount equal to the
Indenture Trustee Fee and all unpaid Indenture Trustee Fees from prior
Payment Dates; (B) to the Master Servicer, an amount equal to the
Master Servicer Compensation and all unpaid Master Servicing
Compensation from prior Payment Dates; (C) to the Servicer, on behalf
of the Owner Trustee, an amount equal to the Servicing Compensation
(net of the sum of any amounts retained prior to deposit into the
Collection Account pursuant to Section 5.01(b)(1) of the Sale and
Servicing Agreement) and all unpaid Servicing Compensation from prior
Payment Dates; (D) to the Securities Insurer, an amount equal to the
Guaranty Insurance Premium and all unpaid Guaranty Insurance Premiums
from prior Payment Dates; and
(ii) to the Noteholders and the Securities Insurer, the
amounts set forth in Sections 5.01(d) and (e) of the Sale and Servicing
Agreement.
(d) On each Payment Date and each Redemption Date, to the
extent of the interest of the Indenture Trustee in the Certificate Distribution
Account (as described in Section 5.03(a) of the Sale and Servicing Agreement),
the Indenture Trustee hereby authorizes the Owner Trustee or the Paying Agent,
as applicable, to make the distributions from the Certificate Distribution
Account as required pursuant to Sections 5.01(d) and (e) of the Sale and
Servicing Agreement.
Section 8.03. General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have
occurred and be continuing, all or a portion of the funds in the Trust Accounts
shall be invested in Permitted Investments and reinvested by the Indenture
Trustee at the direction of the Master Servicer in accordance with the
provisions of Article V of the Sale and Servicing Agreement. All income or other
gain from investments of moneys deposited in the Trust Accounts shall be
deposited by the Indenture Trustee into the Note Payment Account, and any loss
resulting from such investments shall be charged to such account.
(b) Subject to Section 6.01(c) hereof, the Indenture Trustee
shall not in any way be held liable by reason of any insufficiency in any of the
Trust Accounts resulting from any loss on any Permitted Investment included
therein except for losses attributable to the Indenture Trustee's failure to
make payments on such Permitted Investments issued by the Indenture Trustee, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m. Eastern Time (or such other time as may be agreed by the
Issuer and Indenture Trustee) on any Business Day or (ii) 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
hereof or (iii) if such Notes shall have been declared due and payable following
an Event of Default, amounts collected or receivable from the Collateral are
being applied in accordance with Section 5.05 hereof as if there had not been
such a declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in one or more
Permitted Investments.
Section 8.04. Servicer's Monthly Statements. On each Payment
Date, the Indenture Trustee shall deliver the Servicer's Monthly Remittance
Report (as defined in the Sale and Servicing Agreement) with respect to such
Payment Date to DTC, the Master Servicer, the Rating Agencies and the Securities
Insurer.
Section 8.05. Release of Collateral.
(a) Subject to Section 11.01 and the terms of the Basic
Documents, the Indenture Trustee may, and when required by the provisions of
this Indenture shall, execute instruments to release property from the lien of
this Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with the provisions of
this Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys. The Indenture Trustee shall
surrender the Guaranty Policy to the Securities Insurer upon the conditions in
Section 4.01 hereof.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due to the Certificateholders pursuant to Section
5.02(b) of the Sale and Servicing Agreement, to the Servicer pursuant to Section
8.02(c)(i)(A) hereof, to the Master Servicer pursuant to Section 8.02(c)(i)(B)
hereof, to the Securities Insurer pursuant to Section 8.02(c)(i)(C) hereof, to
the Indenture Trustee pursuant to Section 8.02(c)(i)(D) hereof, to the Owner
Trustee pursuant to Section 8.02(c)(i)(E) hereof and to the Custodian pursuant
to Section 8.02(c)(i)(F) hereof have been paid, release any remaining portion of
the Collateral that secured the Notes from the lien of this Indenture and
release to the Issuer or any other Person entitled thereto any funds then on
deposit in the Trust Accounts. The Indenture Trustee shall release property from
the lien of this Indenture pursuant to this Subsection (b) only upon receipt by
it and the Securities Insurer of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA) Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) meeting the
applicable requirements of Section 11.01 hereof.
Section 8.06. Opinion of Counsel. The Indenture Trustee and
the Securities Insurer shall receive at least seven days' prior notice when
requested by the Issuer to take any action pursuant to Section 8.05(a) hereof,
accompanied by copies of any instruments involved, and the Indenture Trustee and
the Securities Insurer may also require, as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee
and the Securities Insurer, 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 and
such action will not materially and adversely impair the security for the Notes
or the rights of the Noteholders in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be required
to express an opinion as to the fair value of the Collateral. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies and with the prior written consent of the
Securities Insurer (so long as no Securities Insurer Default has occurred and is
continuing), the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided, however, that such action shall not adversely
affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI hereof; or
(vii) 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.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, with the prior
written consent of the Securities Insurer (so long as no Securities Insurer
Default has occurred and is continuing), when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with prior
consent of the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not, as evidenced by (i) an
Opinion of Counsel or (ii) satisfaction of the Rating Agency Condition,
adversely affect in any material respect the interests of any Noteholder
including the interests of the Securities Insurer to the extent it is, or will
become, upon payment in full of all amounts due to any Noteholder hereunder or
pursuant to a Note, a Noteholder pursuant to Section 2.06(b) hereof.
Section 9.02. Supplemental Indentures with Consent of
Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior consent of the Rating Agencies, the Securities
Insurer (so long as no Securities Insurer Default has occurred and is
continuing) and with the consent of the Holders of not less than a majority of
the Outstanding Notes, by Act of such Holders delivered to the Issuer and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the 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 and the Securities Insurer:
(a) change the date of payment of any installment of principal
of or interest on any Note, or reduce the Note Principal Balance thereof, the
interest rate thereon or the Termination Price with respect thereto, change the
provisions of this Indenture relating to the application of collections on, or
the proceeds of the sale of, the Collateral to payment of principal of or
interest on the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article V
hereof, to the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(b) reduce the percentage of the Outstanding Notes, the
consent of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the
definition of the term "Outstanding" or "Voting Rights";
(d) reduce the percentage of the Outstanding Notes required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Collateral pursuant to Section 5.04 hereof;
(e) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional provisions
of this Indenture or the Basic Documents cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby;
(f) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of any
of the individual components of such calculation) or to affect the rights of the
Holders of Notes to the benefit of any provisions for the mandatory redemption
of the Notes contained herein; or
(g) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Collateral or, except as otherwise permitted or contemplated herein, terminate
the lien of this Indenture on any property at any time subject hereto or deprive
the Holder of any Note of the security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether
or not any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
In connection with requesting the consent of the Noteholders
pursuant to this Section 9.02, the Indenture Trustee shall mail to the Holders
of the Notes to which such amendment or supplemental indenture relates a notice
setting forth in general terms the substance of such supplemental indenture. It
shall not be necessary for any Act of Noteholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive,
and subject to Sections 6.01 and 6.02 hereof, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and shall be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 9.07. Amendments to Owner Trust Agreement. Subject to
Section 11.1 of the Owner Trust Agreement, the Indenture Trustee shall, upon
Issuer Order, consent to any proposed amendment to the Owner Trust Agreement or
an amendment to or waiver of any provision of any other document relating to the
Owner Trust Agreement, such consent to be given without the necessity of
obtaining the consent of the Holders of any Notes upon satisfaction of the
requirements under Section 11.1 of the Owner Trust Agreement. Nothing in this
Section shall be construed to require that any Person obtain the consent of the
Indenture 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 Indenture 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. The Majority Residual
Interestholders (as defined in the Owner Trust Agreement) may, at its option,
effect an early redemption of the Notes on any Payment Date on or after the
Payment Date on which the Pool Principal Balance declines to 10% or less of the
Original Pool Principal Balance. The Securities Insurer or the Master Servicer
may, at their respective options, effect an early termination of the Notes on
any Payment Date on which the Pool Principal Balance declines to 5% or less of
the Original Pool Principal Balance. The Majority Residual Interestholders, the
Servicer or the Securities Insurer, as applicable, shall effect such early
termination in the manner specified in and subject to the provisions of Section
11.02(b) of the Sale and Servicing Agreement.
The Master Servicer or the Issuer shall furnish the Rating
Agencies, the Servicer and, if redemption is effected by the Majority Residual
Interestholders, the Securities Insurer notice of any such redemption in
accordance with Section 10.02 hereof.
Section 10.02. Form of Redemption Notice. Notice of redemption
under Section 10.01 hereof shall be given by the Indenture Trustee by
first-class mail, postage prepaid, or by facsimile mailed or transmitted not
later than 10 days prior to the applicable Redemption Date to the Securities
Insurer and each Holder of Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address or facsimile
number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) that on the Redemption Date Noteholders shall receive
the Note Redemption Amount; and
(iii) the place where such Notes are to be surrendered for
payment of the Termination Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.02 hereof).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name of the Issuer and at the expense of the Master
Servicer. Failure to give to any Holder of any Note notice of redemption, or any
defect therein, shall not impair or affect the validity of the redemption of any
other Note.
Section 10.03. Notes Payable on Redemption Date; Provision for
Payment of Indenture Trustee and Securities Insurer. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.02 hereof (in
the case of redemption pursuant to Section 10.01) hereof, on the Redemption Date
become due and payable at the Note Redemption Amount and (unless the Issuer
shall default in the payment of the Note Redemption Amount) no interest shall
accrue thereon for any period after the date to which accrued interest is
calculated for purposes of calculating the Note Redemption Amount. The Issuer
may not redeem the Notes unless (i) all outstanding obligations under the Notes
have been paid in full and (ii) the Indenture Trustee has been paid all amounts
to which it is entitled hereunder and the Securities Insurer has been paid all
Securities Insurer Reimbursement Amounts to which it is entitled as of the
applicable Redemption Date.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture
(except with respect to the Master Servicer's servicing activity in the ordinary
course of its business), the Issuer shall furnish to the Indenture Trustee and
the Securities Insurer (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate
or opinion has read or has caused to be read such
covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of each such
signatory, such signatory has made such examination
or investigation as is necessary to enable such
signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been
complied with.
(b) Prior to the deposit of any Collateral or other property
or securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.01(a) hereof
or elsewhere in this Indenture, furnish to the Indenture Trustee and the
Securities Insurer an Officer's Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property or securities to
be so deposited.
(c) Whenever the Issuer is required to furnish to the
Indenture Trustee and the Securities Insurer an Officer's Certificate certifying
or stating the opinion of any signer thereof as to the matters described in
subsection (b) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to the Issuer
of the securities to be so deposited and of all other such securities made the
basis of any such withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to subsection (b) above and this subsection (c), is 10% or
more of the Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair value thereof
to the Issuer as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Notes.
(d) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee and the Securities Insurer an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed to be
released and stating that in the opinion of such person the proposed release
will not impair the security under this Indenture in contravention of the
provisions hereof.
(e) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in subsection (d) above, the
Issuer shall also furnish to the Indenture Trustee and the Securities Insurer an
Independent Certificate as to the same matters if the fair value of the property
or securities and of all other property, other than securities released from the
lien of this Indenture since the commencement of the then-current calendar year,
as set forth in the certificates required by subsection (d) above and this
subsection (e), equals 10% or more of the Outstanding Amount of the Notes, but
such certificate need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the Notes.
Section 11.02. Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Master Servicer, the Transferor, the
Issuer or the Administrator, stating that the information with respect to such
factual matters is in the possession of the Servicer, the Master Servicer, the
Transferor, the Issuer or the Administrator, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI hereof.
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 and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01 hereof)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.03.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
of every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 11.04. Notices, etc., to Indenture Trustee, Issuer,
Rating Agencies and Securities Insurer. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other documents
provided or permitted by this Indenture shall be in writing and if such request,
demand, authorization, direction, notice, consent, waiver or act of Noteholders
is to be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder, the Securities
Insurer or by the Issuer shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Indenture Trustee at its Corporate Trust Office, or
(ii) the Issuer by the Indenture Trustee, the Securities
Insurer or by any Noteholder shall be sufficient for every purpose
hereunder if in writing and made, given, furnished or filed with the
Issuer addressed to: Fremont Home Loan Owner Trust 1999-1, in care of
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or at
any other address previously furnished in writing to the Indenture
Trustee by the Issuer or the Administrator. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the
Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee, the Securities Insurer or the Owner Trustee shall
be in writing, personally delivered or mailed by certified mail, return receipt
requested, to (i) in the case of Moody's, at the following address: ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Corporate Department - 4th Floor, New York, New York 10007, Attention:
Residential Mortgage Monitoring Department and (ii) in the case of S&P, ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Residential Mortgage
Group.
Notices required to be given to the Securities Insurer by the
Issuer, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered or mailed by certified mail, return receipt requested, to
the following address: Financial Security Assurance, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Transaction Oversight Re: Fremont Home Loan
Owner Trust 1999-1, Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, or at such
other address as shall be designated by written notice to the other parties.
Notices required to be given to the Master Servicer by the
Issuer, the Indenture Trustee, the Securities Insurer or the Owner Trustee shall
be in writing, personally delivered or mailed by certified mail, return receipt
requested to the following address: Fremont Investment & Loan, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇; or to such
other address as shall be designated by written notice to the other parties.
Notices required to be given to the Depositor by the Issuer,
the Indenture Trustee, the Securities Insurer or the Owner Trustee shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested to the following address: PaineWebber Mortgage Acceptance Corporation
IV, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq., or to such other address as shall be designated by
written notice to the other parties.
Section 11.05. Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have duly been given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default or Event of Default.
Section 11.06. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
Section 11.07. 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 11.08. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees and
agents.
Section 11.09. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.10. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person (other
than the parties hereto and their successors hereunder, the Noteholders, any
other party secured hereunder, any other Person with an ownership interest in
any part of the Collateral) any benefit or any legal or equitable right, remedy
or claim under this Indenture, except that the Securities Insurer is an express
third party beneficiary to this Indenture as provided in Section 11.19.
Section 11.11. Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.12. GOVERNING LAW. THIS INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.13. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.14. Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at the expense of the Master Servicer
accompanied by an Opinion of Counsel (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the Indenture Trustee and
the Securities Insurer) to the effect that such recording is necessary either
for the protection of the Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the Indenture Trustee
under this Indenture.
Section 11.15. Owner Trust Obligation. No recourse may be
taken, directly or indirectly, with respect to the obligations of the Issuer,
the Owner Trustee or the Indenture Trustee on the Notes or, except as expressly
provided for in Article VI hereof, under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may expressly have agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Owner Trust
Agreement.
Section 11.16. No Petition. The Indenture 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 Transferor, the
Servicer, the Master Servicer or the Issuer, or join in any institution against
the Transferor, the Servicer, the Master Servicer 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 Basic Documents.
Section 11.17. Inspection. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee or the Securities Insurer, during the Issuer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Issuer, to make copies and extracts therefrom, to cause such books to be audited
by Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees, and
Independent certified public accountants, all at such reasonable times and as
often as may reasonably be requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
Section 11.18. ▇▇▇▇▇ of Noteholder Rights to Securities
Insurer. In consideration for the guarantee of the Notes by the Securities
Insurer pursuant to the Guaranty Policy, the Noteholders hereby grant to the
Securities Insurer the right to act as the holder of 100% of the outstanding
Notes for the purpose of exercising the rights of the Holders of the Notes
hereunder, including the voting rights of such Holders, but excluding those
rights requiring the consent of all such Holders under Section 9.02 and any
rights of such Holders to payments under Section 8.02 hereof; provided that the
preceding grant of rights to the Securities Insurer by the Noteholders shall be
subject to Section 11.20 hereof. The rights of the Securities Insurer to direct
certain actions and consent to certain actions of the Noteholders hereunder will
terminate at such time as the Note Principal Balance of the Notes has been
reduced to zero and the Securities Insurer has been reimbursed for all Insured
Payments and any other amounts owed under the Guaranty Policy and the Insurance
Agreement, the Securities Insurer has no further obligation under the Guaranty
Policy and the Guaranty Policy has been surrendered to the Securities Insurer.
Section 11.19. Third Party Beneficiary. The parties hereto
acknowledge that the Securities Insurer is an express third party beneficiary
hereof entitled to enforce any rights reserved to it hereunder as if it were
actually a party hereto.
Section 11.20. Suspension and Termination of Securities
Insurer's Rights.
(a) During the continuation of a Securities Insurer Default,
rights granted or reserved to the Securities Insurer hereunder shall vest
instead in the Noteholders; provided that the Securities Insurer shall be
entitled to any payments in reimbursement of the Securities Insurer
Reimbursement Amount, and the Securities Insurer shall retain those rights under
Sections 9.01 and 9.02 hereof to consent to any supplement to this Indenture.
(b) At such time as the Note Principal Balance of the Notes
has been reduced to zero and the Securities Insurer has been reimbursed for all
Insured Payments and any other amounts owed under the Guaranty Policy and the
Insurance Agreement (and the Securities Insurer no longer has any obligation
under the Guaranty Policy, except for breach thereof by the Securities Insurer),
then the rights and benefits granted or reserved to the Securities Insurer
hereunder (including the rights to direct certain actions and receive certain
notices) shall terminate and the Noteholders shall be entitled to the exercise
of such rights and to receive such benefits of the Securities Insurer following
such termination to the extent that such rights and benefits are applicable to
the Noteholders.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
FREMONT HOME LOAN
OWNER TRUST 1999-1
By: Wilmington Trust Company
not in its individual capacity but
solely as Owner Trustee
By: ________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
not in its individual capacity, but solely
as Indenture Trustee
By: ________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF __________
COUNTY OF __________
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared
___________________________, known to me to be the person and officer whose name
is subscribed to the foregoing instrument and acknowledged to me that the same
was the act of the said WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as Owner Trustee on behalf of FREMONT HOME LOAN OWNER TRUST
1999-1, a Delaware business trust, and that such person executed the same as the
act of said business trust for the purpose and consideration therein expressed,
and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_______, 1999.
_____________________________________
Notary Public
My commission expires:
_____________________________________
STATE OF __________
COUNTY OF __________
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of FIRST
UNION NATIONAL BANK, a national banking association, and that such person
executed the same as the act of said corporation for the purpose and
consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_______, 1999.
_____________________________________
Notary Public
(Seal)
My commission expires:
_____________________________________
EXHIBIT A
FORM OF NOTE
NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
$[_______________]
No. __ CUSIP NO. 35729B AA 9
FREMONT HOME LOAN OWNER TRUST 1999-1
HOME LOAN ASSET BACKED NOTE
FREMONT HOME LOAN OWNER TRUST 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [_____________________] ($[__________])
payable on each Payment Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is the initial principal
amount of this Note and the denominator of which is the aggregate principal
amount of all Notes by (ii) the aggregate amount, if any payable from the Note
Payment Account in respect of principal on the Notes pursuant to Section 5.01(d)
and (e) of the Sale and Servicing Agreement; provided, however, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
(i) the applicable Maturity Date, (ii) the date of termination, if any, pursuant
to Section 11.01 of the Sale and Servicing Agreement, (iii) the date on which
either the Majority Residual Interestholders, the Securities Insurer or the
Servicer, as applicable, exercises its option to terminate the Issuer pursuant
to Section 11.02 of the Sale and Servicing Agreement or (iv) the date on which
an Event of Default shall have occurred and be continuing if the Securities
Insurer declares the Notes due and payable, or, if a Securities Insurer Default
has occurred and is continuing, then if the Indenture Trustee declares or is
directed by the Majority Noteholders to declare the Notes to be immediately due
and payable, in each case in the manner provided in Section 5.02 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture (the "Indenture") dated as of March 1, 1999 between the
Issuer and First Union National Bank, a national banking association, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at a per annum rate
equal to the lesser of (i) One-Month LIBOR plus 0.30%, provided any Payment Date
after the Call Option Date, this rate shall be One-month LIBOR plus 0.60% and
(ii) the Net Interest Rate.
Such principal of and interest on this Note shall be paid in
the manner specified on the reverse hereof.
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 first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: March __, 1999
FREMONT HOME LOAN OWNER TRUST 1999-1
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By: _____________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: March __, 1999
FIRST UNION NATIONAL BANK,
not in its individual capacity but solely
as Indenture Trustee
By: _____________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Home Loan Asset Backed Notes (herein called the
"Notes"), as issued under the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture.
The Notes will be secured by the collateral pledged as
security therefor as provided in the Indenture.
Principal of the Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the 25th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing in April 1999.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the applicable
Maturity Date, the optional termination of the Issuer pursuant to Section 11.02
of the Sale and Servicing Agreement and the termination of the Sale and
Servicing Agreement pursuant to Section 11.01(a) thereof. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred and be
continuing and if the Securities Insurer declares the Notes due and payable, or
if a Securities Insurer Default has occurred and is continuing, if the Indenture
Trustee declares, or is directed by the Majority Noteholders to declare, the
Notes to be immediately due and payable in the manner provided in Section 5.02
of the Indenture. All principal payments on the Notes shall be made pro rata to
the holders of the Notes entitled thereto.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, 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 close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks 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. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future 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, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed or transmitted by facsimile prior to such Payment
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in Charlotte, North Carolina.
Financial Security Assurance, Inc., as the Securities Insurer,
has issued a Guaranty Policy for the benefit of the Noteholders, which policy
guarantees payments on each Payment Date to the Indenture Trustee for the
benefit of the Noteholders of the related Noteholders' Interest Payment Amount
and the Noteholders' Principal Deficiency Amount then payable on the Notes.
Unless a Securities Insurer Default shall be continuing, the Securities Insurer
shall be deemed to be the Holder of 100% of the outstanding Notes for the
purpose of exercising certain rights, including voting rights, of the
Noteholders under the Indenture and the Sale and Servicing Agreement. In
addition, on each Payment Date, after the Noteholders have been paid all amounts
to which they are entitled, the Securities Insurer will be entitled to be
reimbursed for any unreimbursed Insured Payments and any other amounts owed
under the Guaranty Policy.
As provided in the Indenture and the Sale and Servicing
Agreement, the Notes may be redeemed in whole, but not in part, (a) at the
option of the holders of greater than 50% of the Residual Interest Certificates
on any Payment Date on and after the date on which the Pool Principal Balance is
less than 10% of the Original Pool Principal Balance or (b) at the option of the
Securities Insurer or the Servicer on any Payment Date on and after the date on
which the Pool Principal Balance is less than 5% of the Original Pool Principal
Balance.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the 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 Indenture Trustee duly executed by, the Holder hereof or
such ▇▇▇▇▇▇'s attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged to a Holder or the Securities Insurer for any registration of transfer
or exchange of this Note, but the Issuer may require a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Transferor, the Servicer, the Master
Servicer or the Issuer, or join in any institution against the Transferor, the
Servicer, the Master Servicer or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a Note
(and each Note Owner by acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Securities Insurer, the Indenture Trustee and any
agent of the Issuer, the Securities Insurer or the Indenture Trustee may treat
the Person in whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the owner
hereof for all purposes, whether or not this Note be overdue, and none of the
Issuer, the Securities Insurer, the Indenture Trustee or any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Rating Agencies, the
Securities Insurer (provided that no Securities Insurer Default has occurred and
is continuing) and the Holders of Notes representing not less than a majority of
the Outstanding Notes. The Indenture also contains provisions permitting the
Securities Insurer, or if a Securities Insurer Default has occurred and is
continuing, the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder 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 hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee or the Securities Insurer to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of the Issuer in its individual
capacity, the Owner Trustee in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse to,
and enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: ______
___________________________________*/
Signature Guaranteed:
___________________________________*/
-----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.