1
EXHIBIT 4.2
UNION PLANTERS HOME EQUITY CORP.,
Depositor
AND
-------------------------------,
Trustee
------------------------
FORM OF INDENTURE
Dated as of
---------------
------------------------
COLLATERALIZED MORTGAGE BONDS
Issuable in Series
2
INDENTURE DATED AS OF _______________
BETWEEN UNION PLANTERS HOME EQUITY CORP.,
DEPOSITOR AND _____________________________, TRUSTEE
Cross-reference sheet showing the location in the Indenture
of the provisions inserted pursuant to Section 310
through 318(a) inclusive of the Trust Indenture Act of 1939.
INDENTURE
TIA SECTION
--- ---------
Section 310 (a)(1) 7.09
(a)(2) 7.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 7.08
7.10
Section 311 (a) 7.13(a)
(b) 7.13(b)
(c) Not Applicable
Section 312 (a) 8.01
8.02(a)
(b) 8.02(b)
(c) 8.02(c)
Section 313 (a) 8.03(a)
(b) 8.03(b)
(c) 8.03(a)
8.03(b)
(d) 8.03(c)
Section 314 (a) 8.04
(b) 9.06
(c)(1) 15.01
(c)(2) 15.01
(c)(3) 4.02(6)
(d) 4.01, 12.10
(e) 15.01
Section 315 (a) 7.01(a)
(b) 7.02
(c) 7.01(b)
(d)(1) 7.01(c)(1)
(d)(2) 7.01(c)(2)
(d)(3) 7.01(c)(3)
(e) 6.16
Section 316 (a)(1)(A) 6.14
(a)(1)(B) 6.15
(a)(2) Not Applicable
(b) 6.10
Section 317 (a)(1) 6.03
(a)(2) 6.06
(b) 9.03
Section 318 (a) 15.06
NOTE: This cross-reference sheet shall not for any purpose be deemed to
constitute a part of the Indenture.
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TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT.............................................................................................1
ARTICLE ONE DEFINITIONS...........................................................................................1
Section 1.01. Definitions...............................................................................1
ARTICLE TWO BOND FORM............................................................................................16
Section 2.01. Forms Generally..........................................................................16
Section 2.02. Form of Bonds............................................................................16
ARTICLE THREE THE BONDS..........................................................................................16
Section 3.01. Amount Unlimited; Bonds Issuable in Series and Classes; Certain Related Provisions.......16
Section 3.02. Denominations............................................................................17
Section 3.03. Execution, Authentication, Delivery and Dating...........................................18
Section 3.04. [Reserved]...............................................................................18
Section 3.05. Registration, Registration of Transfer and Exchange......................................18
Section 3.06. Mutilated, Destroyed, Lost or Stolen Bonds...............................................19
Section 3.07. Payment of Principal and Interest; Principal and Interest Rights Preserved...............19
Section 3.08. Persons Deemed Owners....................................................................21
Section 3.09. Cancellation.............................................................................21
Section 3.10. [Reserved]...............................................................................21
Section 3.11. Limited Right to Substitute Collateral...................................................21
Section 3.12. Book-Entry Bonds.........................................................................22
ARTICLE FOUR AUTHENTICATION AND DELIVERY OF BONDS................................................................23
Section 4.01. General Provisions.......................................................................23
Section 4.02. Security for Bonds.......................................................................25
ARTICLE FIVE SATISFACTION AND DISCHARGE..........................................................................27
Section 5.01. Satisfaction and Discharge of Indenture..................................................27
Section 5.02. Application of Trust Money...............................................................28
ARTICLE SIX REMEDIES.............................................................................................28
Section 6.01. Events of Default........................................................................28
Section 6.02. Acceleration of Maturity; Rescission and Annulment.......................................28
Section 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee..........................29
Section 6.04. Remedies.................................................................................30
Section 6.05. [Reserved]...............................................................................31
Section 6.06. Trustee May File Proofs of Claim.........................................................31
Section 6.07. Trustee May Enforce Claims Without Possession of Bonds...................................31
Section 6.08. Application of Money Collected...........................................................31
Section 6.09. Limitation on Suits......................................................................32
Section 6.10. Unconditional Rights of Bondholders to Receive Principal and Interest....................32
Section 6.11. Restoration of Rights and Remedies.......................................................32
Section 6.12. Rights and Remedies Cumulative...........................................................33
Section 6.13. Delay or Omission Not Waiver.............................................................33
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Section 6.14. Control by Bondholders...................................................................33
Section 6.15. Waiver of Past Defaults..................................................................33
Section 6.16. Undertaking for Costs....................................................................34
Section 6.17. Waiver of Stay or Extension Laws; Non-Petition...........................................34
Section 6.18. Sale of Trust Estate.....................................................................34
Section 6.19. Action on Bonds..........................................................................35
Section 6.20. Recourse.................................................................................35
Section 6.21. Advances by Depositor....................................................................35
Section 6.22. Application of the Trust Indenture Act...................................................36
ARTICLE SEVEN THE TRUSTEE........................................................................................36
Section 7.01. Certain Duties and Responsibilities......................................................36
Section 7.02. Notice of Default........................................................................36
Section 7.03. Certain Rights of Trustee................................................................36
Section 7.04. Not Responsible for Recitals or Issuance of Bonds........................................37
Section 7.05. May Hold Bonds...........................................................................37
Section 7.06. Money Held in Trust......................................................................37
Section 7.07. Compensation and Reimbursement...........................................................38
Section 7.08. Disqualification.........................................................................38
Section 7.09. Corporate Trustee Required; Eligibility..................................................38
Section 7.10. Resignation and Removal; Appointment of Successor........................................39
Section 7.11. Acceptance of Appointment by Successor...................................................40
Section 7.12. Merger, Conversion, Consolidation or Succession to Business of Trustee...................40
Section 7.13. Preferential Collection of Claims Against Depositor......................................40
Section 7.14. Co-Trustees and Separate Trustees........................................................40
Section 7.15. Review of Mortgage Files.................................................................41
Section 7.16. Trustee Fees and Expenses................................................................43
ARTICLE EIGHT BONDHOLDERS' LIST AND REPORTS BY TRUSTEE AND DEPOSITOR.............................................43
Section 8.01. Depositor to Furnish Trustee Names and Addresses of Bondholders..........................43
Section 8.02. Preservation of Information; Communications to Bondholders...............................43
Section 8.03. Reports by Trustee.......................................................................43
Section 8.04. Reports by Depositor.....................................................................44
ARTICLE NINE COVENANTS OF DEPOSITOR..............................................................................44
Section 9.01. Payment of Principal and Interest........................................................44
Section 9.02. Maintenance of Office or Agency..........................................................44
Section 9.03. Money for Bond Payments to Be Held in Trust..............................................45
Section 9.04. Corporate Existence......................................................................46
Section 9.05. Protection of Trust Estate...............................................................46
Section 9.06. Opinions as to Trust Estate..............................................................46
Section 9.07. Performance of Obligations; Servicing Agreement..........................................47
Section 9.08. Negative Covenants.......................................................................47
Section 9.09. Statement as to Compliance...............................................................48
Section 9.10. Depositor May Consolidate, Etc., Only on Certain Terms...................................48
Section 9.11. Successor Substituted....................................................................49
Section 9.12. No Other Business........................................................................49
Section 9.13. Limitation on Borrowing..................................................................49
Section 9.14. Substitution of Insurance Policies, Etc.; Notification of Rating Agencies................50
Section 9.15. Notice of Events of Default..............................................................50
Section 9.16. Investment Company Act...................................................................51
Section 9.17. Treatment of Bonds as Debt for Tax Purposes..............................................51
(ii)
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ARTICLE TEN SUPPLEMENTAL INDENTURES..............................................................................51
Section 10.01. Supplemental Indentures Without Consent of Bondholders..................................51
Section 10.02. Supplemental Indentures With Consent of Bondholders.....................................52
Section 10.03. Execution of Supplemental Indentures....................................................53
Section 10.04. Effect of Supplemental Indenture........................................................53
Section 10.05. Conformity with Trust Indenture Act.....................................................53
Section 10.06. Reference in Bonds to Supplemental Indentures...........................................53
ARTICLE ELEVEN REDEMPTION OF BONDS...............................................................................54
Section 11.01. Redemption at the Option of the Depositor; Election to Redeem...........................54
Section 11.02. [Reserved]..............................................................................54
Section 11.03. Notice to Trustee.......................................................................54
Section 11.04. Notice of Redemption by the Depositor...................................................54
Section 11.05. Deposit of Redemption Price for Optional Redemptions....................................55
Section 11.06. Bonds Payable on Redemption Date........................................................55
ARTICLE TWELVE ACCOUNTS, ACCOUNTINGS AND RELEASES................................................................55
Section 12.01. Collection of Money.....................................................................55
Section 12.02. [Reserved]..............................................................................56
Section 12.03. [Reserved]..............................................................................56
Section 12.04. Reserve Fund............................................................................56
Section 12.05. Collateral Proceeds Account.............................................................56
Section 12.06. Custodial Reserve Fund..................................................................57
Section 12.07. Surplus Account; Other Funds and Accounts...............................................57
Section 12.08. Reports by Trustee......................................................................58
Section 12.09. Monthly Remittance Reports and Related Matters..........................................58
Section 12.10. Trust Estate............................................................................59
Section 12.11. Releases of Mortgage Loans Withdrawn by Master Servicer.................................60
Section 12.12. Delivery of the Loan Documents Pursuant to Servicing Agreement..........................60
Section 12.13. Records.................................................................................61
Section 12.14. Collections on the Mortgage Loans.......................................................61
Section 12.15. Amendments to Servicing Agreements......................................................61
Section 12.16. Termination and Substitution of Servicing Agreements....................................61
Section 12.17. Opinion of Counsel......................................................................61
ARTICLE THIRTEEN APPLICATION OF MONIES...........................................................................62
Section 13.01. Disbursements of Monies from Collateral Proceeds Account................................62
Section 13.02. [Reserved]..............................................................................62
Section 13.03. Disbursement of Monies Out of Custodial Reserve Fund....................................62
Section 13.04. Trust Account...........................................................................62
Section 13.05. Disbursements of Excess Funds; Release of Mortgage Collateral...........................63
ARTICLE FOURTEEN BONDHOLDERS' MEETINGS...........................................................................63
Section 14.01. Purposes for Which Meetings May Be Called...............................................63
Section 14.02. Manner of Calling Meetings..............................................................63
Section 14.03. Call of Meeting by Depositor or Bondholders.............................................64
Section 14.04. Who May Attend and Vote at Meetings.....................................................64
Section 14.05. Regulations May Be Made by Trustee......................................................64
Section 14.06. Manner of Voting at Meetings and Records to be Kept.....................................65
Section 14.07. Exercise of Rights of Trustee and Bondholders Not to Be Hindered or Delayed.............65
ARTICLE FIFTEEN MISCELLANEOUS....................................................................................65
(iii)
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Section 15.01. Compliance Certificates and Opinions.....................................................65
Section 15.02. Form of Documents Delivered to Trustee...................................................66
Section 15.03. Acts of Bondholders......................................................................66
Section 15.04. Notices, Etc., to Trustee and Depositor..................................................66
Section 15.05. Notices to Bondholders; Waiver...........................................................67
Section 15.06. Conflict with Trust Indenture Act........................................................67
Section 15.07. Effect of Headings and Table of Contents.................................................67
Section 15.08. Successors and Assigns...................................................................67
Section 15.09. Separability.............................................................................67
Section 15.10. Benefits of Indenture....................................................................67
Section 15.11. Legal Holidays...........................................................................67
Section 15.12. Governing Law............................................................................68
Section 15.13. Counterparts.............................................................................68
Section 15.14. Corporate Obligation.....................................................................68
Section 15.15. Recording of Indenture...................................................................68
Section 15.16. No Petition..............................................................................68
Section 15.17. Amendments to Governing Documents........................................................68
EXHIBITS
Exhibit A-1 Form of Trustee's Initial Certification
Exhibit A-2 Form of Trustee's Final Certification
(iv)
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This INDENTURE, dated as of __________, 20__, is hereby executed by and
between Union Planters Home Equity Corp., a Delaware corporation (the
"Depositor"), and ______________________, a [national banking corporation], as
trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has duly authorized the execution and delivery of this
Indenture to provide for one or more Series of Bonds, issuable as provided in
this Indenture. Each Series of such Bonds will be issued only under a Supplement
to this Indenture duly executed and delivered by the Depositor and the Trustee
and limited to the amount therein prescribed. All covenants and agreements made
by the Depositor herein are for the benefit and security of the Bondholders. The
Depositor is entering into this Indenture, and the Trustee is accepting the
trusts created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Except as otherwise specified herein or in a Series Supplement or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture, and the definitions
of such terms are equally applicable both to the singular and plural forms of
such terms and to the masculine, feminine and neuter genders of such terms. All
other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein.
"Accountants' Certificate": A certificate of a firm of independent
certified public accountants of national reputation acceptable to the Trustee,
which may be the firm of independent accountants that audits the financial
statements of the Depositor.
"Accounting Date": With respect to any Series or Class of Bonds, the
date specified in the related Series Supplement as the Accounting Date for the
Bonds of such Series or Class.
"Accretion Bond": A Bond of a Series on which interest accrues and is
compounded and added to the principal of such Bond periodically, but with
respect to which neither interest nor principal is payable until the earlier of
(i) the Payment Date on which the entire principal amount of each Outstanding
Bond of the same Series having an earlier Stated Maturity of principal has been
paid in full or (ii) a date specified in the related Series Supplement.
"Accrual Date": With respect to any Series or Class of Bonds, the date
on which interest begins accruing on the Bonds of such Series, as specified in
such Bonds and the related Series Supplement.
"Act" and "Acts of Bondholders": The meanings specified in Section
15.03.
"Additional Mortgage Collateral": Any Mortgage Collateral added to the
Trust Estate for a Series of Bonds (other than Substitute Mortgage Collateral)
after the initial Issue Date for the Series.
"Administrative Fee": With respect to a Series, the administrative fees
set forth in the related Series Supplement.
"Affiliate": 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
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"Aggregate Collateral Value": With respect to any Series, the sum of
the Collateral Values of all Mortgage Collateral securing such Series on the
date of determination.
"Appraised Value": The value of a Mortgaged Premises as set forth in an
appraisal made by or for the originator in connection with the origination of
the Mortgage Loan secured by such Mortgaged Premises.
"ARM Loan": An "adjustable rate" Mortgage Loan, the Note Rate of which
is subject to periodic adjustment in accordance with the terms of the Note.
"Beneficial Owner": With respect to a Book-Entry Bond, the Person who
is the beneficial owner of such Bond as reflected on the books of the Clearing
Agency for the Series or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
"Best Efforts": Efforts determined to be in good faith and reasonably
diligent by the Person performing such efforts, specifically the Issuer or the
Servicer, as the case may be, in its reasonable discretion. Such efforts do not
require the Issuer or the Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do they
require the Issuer or the Servicer, as the case may be, to advance or expend
fees or sums of money in addition to those specifically set forth in this
Indenture and the Servicing Agreement.
"Board of Directors": The Board of Directors of the Depositor or any
committee of that Board duly authorized to act on behalf of that Board with
respect to any matters arising under the Indenture.
"Board Resolution": A copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification and delivery to the Trustee.
"Bond Insurance": Any financial guaranty insurance policy covering any
Bonds or Class of Bonds of any Series.
"Bond Insurer": The issuer of any Bond Insurance.
"Bond Interest Rate": With respect to any Series or Class of Bonds, the
annual rate, which may be a variable rate, at which interest accrues on the
Bonds of such Series or Class, as specified in the related Series Supplement.
"Bond Period": The period between two successive Payment Dates or, with
respect to the initial Bond Period for a Series, the period between the Accrual
Date and the first Payment Date for that Series.
"Bond Register" and "Bond Registrar": The respective meanings specified
in Section 3.05.
"Bondholder" or "Holder": The Person in whose name a Bond is registered
in the Bond Register for the related Series.
"Bonds": Any bonds authorized by, and authenticated and delivered
under, this Indenture and any Series Supplement.
"Book-Entry Bonds": Bonds of a Series for which the related Series
Supplement provides that ownership and transfers of beneficial ownership
interests in such Bonds shall be made through book entries by a Clearing Agency
as described in Section 3.12 or other entity satisfactory to the Rating Agency;
provided, however, that after the occurrence of a condition whereupon book-entry
registration is no longer permitted, Definitive Bonds shall be issued to the
Beneficial Owners of Bonds of such Series, and such Bonds shall no longer be
"Book-Entry Bonds."
"Borrower": The Person or Persons obligated to repay a Mortgage Loan.
"Broker's Price Opinion": The opinion of an independent real estate
broker as to the expected sale price for specified Mortgaged Premises.
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"Business Day": Any day that is not a Saturday, Sunday, holiday, or
other day on which commercial banking institutions in the city and state in
which the Trustee's Corporate Trust Office is located are authorized or
obligated by law or executive order to be closed.
"Certificate of Deposit": A certificate of deposit satisfying the
definition of an Eligible Investment.
"Class": With respect to any Series, the classification of Bonds within
such Series as set forth in the related Series Supplement.
"Clearing Agency": An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended, and
the regulations of the Commission thereunder.
"Clearing Agency Participant": A broker, dealer, bank, other financial
institution or other person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Code": The Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"Collateral": For a Series, the Trust Estate securing such Series.
"Collateral Proceeds": With respect to any Mortgage Collateral securing
a Series, the amount paid to the holder of such Mortgage Collateral in
accordance with the terms of such Mortgage Collateral.
"Collateral Proceeds Account": The meaning specified in Section 12.05.
"Collateral Value": With respect to each item of Mortgage Collateral,
an amount equal to the lesser of (i) the outstanding principal balance of such
item of Mortgage Collateral and (ii) as specified in the related Series
Supplement, either (a) the present value of remaining scheduled monthly payments
of principal and interest (at the Net Rate in the case of a Mortgage Loan)
discounted monthly to the date of computation at the Collateral Value Discount
Rate (the "Discounted Cash Flow Method") or (b) the scheduled principal balance
of such item of Mortgage Collateral multiplied by a fraction, the numerator of
which is the interest rate (or Net Rate in the case of a Mortgage Loan) and the
denominator of which is the Collateral Value Discount Rate (the "Interest
Method").
"Collateral Value Discount Rate": The Collateral Value Discount Rate
specified in the related Series Supplement.
"Commission": The Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time under the Trust Indenture Act or similar legislation
replacing the Trust Indenture Act.
"Compound Value": With respect to any Payment Date for a Class of
Accretion Bonds of a Series, the original principal amount of such Class, plus
all interest accrued and added to the principal thereof through the Accounting
Date preceding the Payment Date, compounded at the Bond Interest Rate for such
Class, and with respect to any calculation on a date other than a Payment Date,
the Compound Value as of the immediately preceding Accounting Date or (if prior
to the first Payment Date) the original principal amount of such Class of
Accretion Bonds. The principal amount of any Accretion Bond at any time will be
equal to its Compound Value. The Compound Value of an Accretion Bond will be
reduced by any payments of principal on such Bond.
"Corporate Trust Office": The principal corporate trust office of the
Trustee presently located at ____________________________________, _______,
_________ __________, telephone number (___) ___-____ or at such other address
as the Trustee may designate from time to time by notice to the Bondholders and
the Depositor or the principal corporate trust office of any successor Trustee.
Any notices to the Trustee should be mailed to ______________________________,
__________________________, ____________, ______, ________ _____ or sent by
overnight courier to ________________________________, ___________________,
____________, ______, ________ _____.
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"Credit Enhancement Rate": The per annum rate, if any, specified in the
Series Supplement for a Series.
"Current Interest Bond": A Bond other than an Accretion Bond.
"Custodial Reserve Fund": The fund established pursuant to Section
12.06.
"Custodian": A custodian appointed by the Trustee to hold some or all
of the Mortgage Collateral for the Bonds issued hereunder.
"Cut-off Date": With respect to any Series, the date or dates on and
after which all payments of principal and interest due in respect of Mortgage
Collateral securing the Series are to be transmitted to the Collateral Proceeds
Account for the benefit of the Holders of that Series. The Cut-off Date or Dates
for a Series shall be specified in the related Series Supplement.
"Date of Execution": The actual date of execution of this Indenture by
the Depositor and the Trustee as indicated by their respective acknowledgments
hereto annexed, and if the Depositor and the Trustee shall have executed this
Indenture at different dates, the later date.
"Default": Any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default or, when used in association with
obligations created by any agreement other than this Indenture, the meaning
specified in such agreement.
"Defaulted Mortgage Loan": A Mortgage Loan with respect to which any
scheduled payment of interest or principal has become [_____] days past due.
"Defaulted Mortgage Loan Value": The amount that the holder of a
Defaulted Mortgage Loan can reasonably expect to realize with respect to such
Mortgage Loan, taking into account the Unpaid Principal Balance, the interest
accrued thereon to the date on which the determination is made, the additional
interest that will be accrued thereon prior to sale, estimated foreclosure and
other disposition costs, liabilities associated with the related Mortgaged
Premises, the value of the related Mortgaged Premises indicated in a Broker's
Price Opinion delivered not more than 12 months prior to the date of
determination of Defaulted Mortgage Loan Value and the amount of any claim to be
filed pursuant to any mortgage insurance or guarantee.
"Definitive Bonds": Bonds other than Book-Entry Bonds.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by
a Qualified Substitute Mortgage Loan.
"Delivery Date": The date that Bonds of a Series are delivered to the
original purchasers of such Bonds as specified in the related Series Supplement.
"Depositor": Union Planters Home Equity Corp., a Delaware corporation,
unless a successor Person shall have become the Depositor pursuant to the
applicable provisions of this Indenture, and thereafter "Depositor" shall mean
such successor Person.
"Depositor Officer": The Chairman of the Board of Directors, the
President or any Vice President of the Depositor.
"Depositor Order" and "Depositor Request": A written order or request
signed in the name of the Depositor by its Chairman, President or a Vice
President, and by its Treasurer, an Assistant Treasurer, Controller, an
Assistant Controller, Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Discounted Cash Flow Method": A method for calculation of Collateral
Value described herein in the definition of Collateral Value, as modified, if
applicable, in the Series Supplement for a Series of Bonds.
"Due Date": Each date on which a payment, whether of principal,
interest or both, is due on a Mortgage Certificate or Mortgage Loan securing a
Series.
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"Due Period": With respect to each Payment Date for a Class or Series
of Bonds, the period beginning immediately following the preceding Due Period
(or, in the case of the Due Period that is applicable to the first Payment Date,
beginning on the Accrual Date for such Series) and, unless otherwise specified
in the related Series Supplement, ending on the Accounting Date preceding such
Payment Date.
"Eligible Investments": Except to the extent expanded or restricted by
the Series Supplement for the Series for which such obligations or securities
form part of the Trust Estate for such Series, any one or more of the following
obligations or securities:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or
any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America, provided that such obligations of ▇▇▇▇▇▇▇ Mac
or ▇▇▇▇▇▇ ▇▇▇ shall be limited to senior debt obligations and mortgage
participation certificates (except that investments in mortgage-backed
or mortgage participation securities with yields evidencing extreme
sensitivity to the rate of principal payments on the underlying
mortgages shall not constitute Eligible Investments hereunder);
(ii) (a) demand and time deposits in, certificates of deposit
of, bankers' acceptances issued by, or federal funds sold by any
depository institution or trust company incorporated under the laws of
the United States of America (including the Trustee) or any state
thereof and subject to supervision and examination by federal and/or
state banking authorities so long as the commercial paper and the
long-term debt obligations of such depository institution or trust
company (or, in the case of the principal depository institution in a
holding company system, the commercial paper and long-term debt
obligations of such holding company) at the time of such investment or
contractual commitment providing for such investment has a credit
rating in the highest applicable category from each Rating Agency in
the case of commercial paper and in one of the two highest applicable
categories from each Rating Agency in the case of long-term debt
obligations and (b) any other demand or time deposit or certificate of
deposit that is fully insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to (a) any
security described in clause (i) above or (b) any other security issued
or guaranteed by an agency or instrumentality of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii)(a) above
(and having the ratings from each Rating Agency required in clause
(ii)(a) above), the repurchaser of which also has the ratings from each
Rating Agency described in clause (ii)(a) above;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which have a credit rating in
one of the two highest applicable categories from each Rating Agency at
the time of such investment or contractual commitment providing for
such investment; provided, however, that securities issued by any
particular corporation will not be Eligible Investments to the extent
that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the
Trust Estate to exceed [10%] of the aggregate outstanding principal
balances of all the Mortgage Collateral and Eligible Investments held
as part of the Trust Estate; provided, further, that no securities
representing the right to receive only interest distributions on
underlying financial assets, and no securities that were purchased for
a price in excess of [120%] of the outstanding principal amount thereof
at the time of purchase thereof, shall constitute Eligible Investments;
(v) commercial paper having a rating in the highest
applicable category from each Rating Agency at the time of such
investment; and
(vi) a guaranteed investment contract issued by any
insurance company or other corporation or entity with a short-term debt
rating in the highest category by each Rating Agency and a long-term
debt rating in one of the two highest applicable categories by each
Rating Agency;
provided, however, that, unless otherwise provided in the related Series
Supplement, Eligible Investments for a Series shall include only obligations or
securities that mature on or before the Business Day immediately preceding the
next Payment Date for such Series. In addition, no Eligible Investment that
incorporates a penalty for early
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withdrawal will be used unless the maturity of such Eligible Investment is on or
before the Business Day immediately preceding the next Payment Date.
"Event of Default": With respect to any Series, the meaning specified
in the related Series Supplement, as provided in Section 6.01 or, when used in
association with obligations created by any agreement other than this Indenture,
the meaning specified in such agreement.
"Federal Bankruptcy Code": Title 11 of the United States Code, as
amended.
"FHA": The Federal Housing Administration or any successor thereof.
"▇▇▇▇▇▇▇ Mac": ▇▇▇▇▇▇▇ Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereof.
"▇▇▇▇▇▇▇ Mac Certificate": A mortgage participation certificate
representing an undivided interest in specified fixed rate, first lien
residential mortgages, or participation interests therein, purchased by ▇▇▇▇▇▇▇
Mac, which is pledged to the Trustee under this Indenture and the related Series
Supplement as security for a Series, and all renewals, extensions, substitutions
and replacements thereof. Each ▇▇▇▇▇▇▇ Mac Certificate pledged to the Trustee as
security for a Series will be listed in a schedule to the related Series
Supplement.
"Final Payment Date": The Payment Date following the first to occur of
the Sale of the Mortgage Collateral or the final payment on each item of
Mortgage Collateral included in the Trust Estate.
"▇▇▇▇▇▇ ▇▇▇": ▇▇▇▇▇▇ ▇▇▇, formerly the Federal National Mortgage
Association, or any successor thereof.
"▇▇▇▇▇▇ Mae Certificate": A guaranteed mortgage pass-through
certificate issued and guaranteed by ▇▇▇▇▇▇ ▇▇▇ and representing an undivided
interest in a pool of Mortgage Loans secured by first liens on residential
property, which is pledged to the Trustee under this Indenture and the related
Series Supplement as security for a Series, and all renewals, extensions,
substitutions and replacements thereof. Unless otherwise specified in the
related Series Supplement, each ▇▇▇▇▇▇ Mae Certificate shall only represent an
interest in a pool that consists of fixed rate Mortgage Loans. Each ▇▇▇▇▇▇ ▇▇▇
Certificate pledged to the Trustee as security for a Series will be listed in a
schedule to the related Series Supplement.
"Fund": Any fund established pursuant to the Indenture or Series
Supplement with respect to any Series of Bonds that is pledged as security for
such Series.
"GNMA": The Government National Mortgage Association or any successor
thereto.
"GNMA Certificate": A fixed rate, fully modified pass-through
mortgage-backed certificate guaranteed by GNMA, which is pledged to the Trustee
under this Indenture and the related Series Supplement as security for a Series,
and all renewals, extensions, substitutions and replacements thereof. Each such
GNMA Certificate will be a GNMA I Certificate or a GNMA II Certificate as
referred to by GNMA. Each GNMA Certificate pledged to the Trustee as security
for a Series will be listed in a schedule to the related Series Supplement.
"Grant": To grant, bargain, sell, warrant, alienate, remise, demise,
release, convey, assign, transfer, mortgage, pledge, create and grant a security
interest in and right of set-off against, deposit, set over and confirm. A Grant
of the Mortgage Collateral or of any other instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including without limitation the immediate continuing right to claim
for, collect, receive and receipt for principal and interest payments in respect
of the Mortgage Collateral and all other monies 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.
"Gross Margin": With respect to each ARM Loan, the fixed percentage
specified in the Note that is added to or subtracted from the Index on each
Interest Adjustment Date to determine the new Note Rate for such ARM Loan.
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["Home Equity Loans":]
"Indenture": This instrument as supplemented or amended. It shall
include the forms and terms of a particular Series established as contemplated
hereunder. All references in this instrument to designated "Articles,"
"Sections," "Subsections" and other subdivisions are to the designated Articles,
Sections, Subsections and other subdivisions of this instrument as originally
executed. The words "herein," "hereof," "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section, Subsection or other subdivision.
"Independent": When used with respect to any specified Person means
such a Person who (1) is in fact independent of the Depositor and any other
obligor upon the Bonds and of any Affiliate of the Depositor or such other
obligor, (2) does not have any direct financial interest or any material
indirect financial interest in the Depositor or in any such other obligor or in
any Affiliate of the Depositor or such other obligor, and (3) is not connected
with the Depositor or any such other obligor as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Whenever it is provided herein that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person shall be appointed by
Depositor Order and approved by the Trustee in the exercise of reasonable care
and such opinion or certificate shall state that the signer has read this
definition and that the signer is independent within the meaning thereof.
"Index": With respect to each ARM Loan, the index rate specified in the
Note to which or from which the Gross Margin is added or subtracted, in
accordance with the terms of the Note, on each Interest Adjustment Date to
determine the new Note Rate for such ARM Loan.
"Insurance Policy": Any Bond Insurance Policy, Primary Mortgage
Insurance Policy, Pool Insurance Policy, Special Hazard Insurance Policy,
earthquake insurance policy, Mortgagor Bankruptcy Bond, FHA insurance, VA
guarantees and any other insurance policy covering any Bonds, Mortgage
Certificate, Mortgage Loan or Mortgaged Premises securing such Series,
including, without limitation, any Standard Hazard Insurance Policy and any
Title Insurance Policy specified in the related Series Supplement, or any fund
established in lieu of such policy or policies.
"Insurance Proceeds": With respect to a Series, amounts paid or payable
under any Insurance Policy with respect to such Series, to the extent not
applied to the restoration or repair of the Mortgaged Premises covered thereby.
"Insurer": Any Bond Insurer, the Mortgage Insurer, Pool Insurance
Insurer, the issuer of the Mortgagor Bankruptcy Bond and the Special Hazard
Insurer, when no distinction is required by the context in which used.
"Interest Adjustment Date": With respect to each ARM Loan, the date on
which the Note Rate changes in accordance with the terms of the Note, the first
of which is set forth in the Note. Generally, but not in every case, the
Interest Adjustment Date for a Mortgage Loan will be one month before the
Payment Adjustment Date with respect to such Mortgage Loan.
"Interest Method": A method for calculation of Collateral Value
described herein in the definition of Collateral Value, as modified, if
applicable, in the Series Supplement for a Series of Bonds.
"Issue Date": With respect to a Series, the issue date specified in the
related Series Supplement.
["Junior Lien":]
"Letter of Credit": A letter of credit issued to the Trustee and its
successor or assign by any banking corporation situated in the United States (an
"LOC Issuer") whose long-term senior unsecured debt obligations have received
the highest rating from each Rating Agency or any other rating category
acceptable to each Rating Agency. Any such Letter of Credit shall provide that
(a) it is conditional only on certification by the Trustee of its authority to
draw on the Letter of Credit under the terms of the Indenture and (b) it is
subject to termination upon not less than [___] days prior written notice to the
Trustee, in which case, unless such Letter of Credit is renewed or a substitute
Letter of Credit in the requisite amount is provided, upon receipt of any such
written notice the Trustee shall
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immediately, and in no case more than [___] days after such notice, draw on the
Letter of Credit for the entire unutilized balance thereof and deposit such
amount in the Reserve Fund.
In the event that the long-term senior unsecured debt obligations of
the LOC Issuer are downgraded by a Rating Agency and such downgrade affects any
Bonds secured by such Letter of Credit, then within [___] days of such event,
the Depositor will, in the case of such a downgrade, (i) replace the Letter of
Credit with a Letter of Credit in an amount not less than the amount of the
Letter of Credit being replaced issued by a successor letter of credit issuer
whose long-term senior unsecured debt obligations are rated in the highest
category by each Rating Agency or (ii) instruct the Trustee to cause an
automatic draw to be made under the Letter of Credit at the conclusion of such
[__] day period for the entire amount of the Letter of Credit and deposit such
amount in the Reserve Fund. Notwithstanding the foregoing, the Letter of Credit
may only be replaced if immediately after any replacement of the Letter of
Credit the rating of the Bonds is at least equal to the rating assigned to the
Bonds by each Rating Agency prior to such replacement.
For purposes of the definition of "Letter of Credit," a bank shall be
deemed to have short-term senior unsecured debt obligations that have received
the highest rating if the bank is the principal subsidiary of a bank holding
company and the short-term senior unsecured debt obligations of the bank holding
company have received the highest rating. A bank shall be deemed the principal
subsidiary of a bank holding company if the bank's net worth exceeds [66-2/3%]
of the consolidated net worth of the bank holding company.
"Limited Purpose Entity": A corporation, trust or other entity
organized under the laws of the District of Columbia or any state of the United
States of America whose charter, articles of incorporation, trust instrument or
other governing document includes provisions that provide that the entity:
(a) is organized solely to acquire, own, hold, sell, transfer
or assign, and to issue bonds or mortgage pass-through certificates
backed by (i) mortgage loans, (ii) ▇▇▇▇▇▇ ▇▇▇ Certificates, (iii)
▇▇▇▇▇▇▇ Mac Certificates, (iv) GNMA Certificates, (v) any other
mortgage pass-through certificates or mortgage-collateralized
obligations and (vi) rights to any or all of the cash flows
attributable to any of the foregoing and, subject to the prohibition on
the entity's ability to incur debt obligations, to engage in any
activity that is incidental or convenient to the accomplishment of the
foregoing, and subsequent to the issuance of any series of bonds, to
sell any collateral securing such bonds to a limited purpose trust,
partnership, corporation, limited liability company or other entity,
subject to the lien of such bonds;
(b) shall not incur or assume any debt or guarantee any debt
if, as a result thereof, the then current rating of the Bonds by the
Rating Agency would be adversely affected; and
(c) shall not consolidate or merge with or into any other
entity or convey or transfer all or any portion of its assets or
properties unless the entity formed or surviving such consolidation or
merger or to which the entity transfers its assets or properties is a
Limited Purpose Entity that has expressly assumed all of the entity's
outstanding obligations to the Trustee.
"Liquidation Proceeds": Amounts (other than Insurance Proceeds)
received and retained in connection with the liquidation of defaulted Mortgage
Loans, whether through foreclosure or otherwise. "Loan Documents": The loan
documents pertaining to a particular Mortgage Loan comprising the Mortgage Loan
file reviewed and held by the Trustee or a Custodian, on behalf of the Trustee,
as provided in the related Servicing Agreement.
"Loan-to-Value Ratio": The outstanding principal amount of a Note at
the time of the origination of such Note divided by the lesser of (i) the
Appraised Value of the related Mortgaged Premises or (ii) the selling price for
such Mortgaged Premises.
"Master Servicer": For each Mortgage Loan, the Person designated as the
Master Servicer in the related Servicing Agreement.
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"Maturity": With respect to any Bond of a Series, the date on which the
unpaid principal of such Bond becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Maturity Date": With respect to any Mortgage Certificate or Mortgage
Loan securing a Series, the date on which the last payment of principal of such
Mortgage Certificate or Mortgage Loan shall be due and payable. In determining
the Maturity Date of such a Mortgage Certificate or Mortgage Loan, all
pre-payments received prior to the date of determination shall be taken into
account.
"Maximum Lifetime Note Rate": With respect to each ARM Loan, the
interest rate set forth in the related Note as the maximum Note Rate thereunder,
if any.
"Minimum Lifetime Note Rate": With respect to each ARM Loan, the
interest rate set forth in the related Note as the minimum Note Rate thereunder,
if any.
"Minimum Principal Distribution Balance": With respect to a Payment
Date for a Series of Bonds, the balance, if any, by which (i) the aggregate
Outstanding principal balance of the Bonds of the Series (before giving effect
to any payments of principal on that Payment Date) plus the balance of any
interest accrued and added on the immediately preceding Accounting Date to the
principal balance of any Accretion Bonds included in such Series exceeds (ii)
the Aggregate Collateral Value of the Mortgage Collateral securing the Series as
of the most recent Principal Determination Date.
"Monthly Remittance Report": The report provided to the Trustee
pursuant to Section 12.09.
"Mortgage Certificates": With respect to a Series, the GNMA
Certificates, the ▇▇▇▇▇▇▇ Mac Certificates, the ▇▇▇▇▇▇ Mae Certificates and the
Other Mortgage Certificates securing such Series.
"Mortgage Collateral": With respect to a Series, together, the Mortgage
Certificates and the Mortgage Loans securing such Series.
"Mortgage Insurer": With respect to a Series, the insurance company or
companies specified in the related Series Supplement or its subsidiaries,
successors or any Affiliate.
"Mortgage Loan Documents": With respect to each Mortgage Loan, the
following documents:
(a) the original Note bearing a complete chain of
endorsements, if necessary, from the initial payee thereunder to the
Seller, with a further endorsement without recourse from the Seller in
blank or to the Trustee or its Custodian, in a form specified in the
related Sales Agreement, (or a copy or a duplicate original Mortgage
Note, together with an affidavit certifying that the original thereof
has been lost or destroyed) together with all related riders and
addenda and any related surety or guaranty agreement, power of attorney
and buydown agreement;
(b) the original recorded Security Instrument (or a copy
thereof certified to be a true and correct reproduction of the original
thereof by the appropriate public recording office) with evidence of
recordation noted thereon or attached thereto, or, if the Security
Instrument is in the process of being recorded, a photocopy of the
Security Instrument, certified by an officer of the related Seller or
the originator, the related title insurance company, the related
closing/settlement/escrow agent or the related closing attorney to be a
true and correct copy of the Security Instrument submitted for
recordation;
(c) the original recorded assignment of the Security
Instrument from the related Seller to the Trustee or its Custodian, in
a form specified in the related Sales Agreement (or a copy thereof
certified to be a true and correct reproduction of the original thereof
by the appropriate public recording office) with evidence of
recordation noted thereon or attached thereto, or, if the assignment is
in the process of being recorded, a photocopy of the assignment,
certified by an officer of the Seller to be a true and correct copy of
the assignment submitted for recordation;
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(d) each original recorded intervening assignment of the
Security Instrument as is necessary to show a complete chain of title
from the initial mortgagee (or beneficiary, in the case of a deed of
trust) to the related Seller (or a copy of each such assignment
certified to be a true and correct reproduction of the original thereof
by the appropriate public recording office) with evidence of
recordation noted thereon or attached thereto, or, if an assignment is
in the process of being recorded, a photocopy of the assignment,
certified by an officer of the Seller to be a true and correct copy of
the assignment submitted for recordation;
(e) an original Title Insurance Policy or, if such policy has
not yet been issued or is otherwise not available, (1) a written
commitment to issue such policy issued by the applicable title
insurance company and an officer's certificate of the related Seller
certifying that all of the requirements specified in such commitment
have been satisfied, (2) a preliminary title report if the related
Mortgaged Premises is located in a state in which preliminary title
reports are acceptable evidence of title insurance or (3) a certificate
of an officer of the Seller certifying that a Title Insurance Policy is
in full force and effect as to the related Security Instrument;
(f) for each Mortgage Loan identified in the related Agreement
as having in place a Primary Mortgage Insurance Policy, a Primary
Mortgage Insurance Policy or a certificate of primary mortgage
insurance issued by the related Mortgage Insurer or its agent
indicating that such a policy is in effect as to such Mortgage Loan or,
if neither a policy nor a certificate of insurance from the related
Mortgage Insurer is available, a certificate of an officer of the
related Seller certifying that a Primary Mortgage Insurance Policy is
in effect as to such Mortgage Loan;
(g) each related assumption agreement, modification, written
assurance or substitution agreement, if any; and
(h) proof of the maintenance of a Standard Hazard Insurance
Policy (and a flood insurance policy, if applicable) as to the related
Mortgaged Premises.
"Mortgage Loans": The mortgage loans pledged to the Trustee as security
for a Series, and all renewals, extensions, substitutions and replacements
thereof. Each Mortgage Loan pledged to the Trustee as security for a Series
shall be listed in a schedule to the related Series Supplement.
"Mortgaged Premises: The real property, together with improvements
thereto, securing the indebtedness of the Borrower under the related Mortgage
Loan.
"Mortgagor Bankruptcy Bond" or "Mortgagor Bankruptcy Fund": With
respect to a Series, a policy of insurance or Letter of Credit (or any other
instrument required to avoid a downgrading of the then applicable rating on the
Bonds of such Series by any Rating Agency rating the Bonds of such Series) to be
issued by the company or companies specified in the related Series Supplement
providing coverage with respect to each Mortgage Loan securing such Series in
the event of the bankruptcy of the Borrower thereof.
"Net Rate": Unless otherwise provided in the Series Supplement, with
respect to each Mortgage Loan, the Note Rate minus the sum of the Servicing Fee
Rate, Master Servicing Fee Rate and Credit Enhancement Rate, if any, as
specified in the related Series Supplement.
"Note": The note or other evidence of indebtedness of a Borrower with
respect to a Mortgage Loan.
"Note Rate": With respect to a Mortgage Loan, the annual interest rate
required to be paid by a Borrower under the terms of the related Note.
"Officer": With respect to any corporation, the Chairman of the Board
of Directors, the President, any Vice President, the Secretary, any Assistant
Secretary or the Treasurer of such corporation; with respect to any partnership,
any general partner thereof; with respect to any bank or trust company acting as
trustee of an express trust or as custodian, any trust officer or authorized
officer thereof.
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"Officer's Certificate": For any Person, a certificate delivered to the
Trustee that has been signed on behalf of that Person by an individual who is
identified in that certificate as being an Officer of that Person or any other
individual authorized to execute the certificate.
"Opinion of Counsel": A written opinion of an attorney at law admitted
to practice before the highest court of any state of the United States or the
District of Columbia or a law firm that may, except as otherwise expressly
provided in this Indenture, be counsel for the Depositor and who shall be
satisfactory to the Trustee. Whenever an Opinion of Counsel is required
hereunder, such opinion may rely on opinions of other counsel who are so
admitted.
"Original Mortgage Collateral": An item of Mortgage Collateral that is
pledged to the Trustee under this Indenture as security for a Series on the
Delivery Date of the Bonds of such Series.
"Originator": For a Mortgage Loan, the Person that originated such
Mortgage Loan.
"Other Mortgage Certificate": A mortgage pass-through certificate or
collateralized mortgage obligation other than a GNMA Certificate, ▇▇▇▇▇▇▇ Mac
Certificate or ▇▇▇▇▇▇ Mae Certificate that is pledged to the Trustee under this
Indenture and the related Series Supplement and all renewals, extensions,
substitutions and replacements thereof. Each Other Mortgage Certificate pledged
to the Trustee as security for a Series will be listed in a schedule to the
related Series Supplement.
"Outstanding":
(1) With respect to Bonds of a Series, as of the date of
determination, "Outstanding" refers to all Bonds of such Series theretofore
authenticated and delivered under this Indenture except:
(i) Bonds theretofore canceled by the Bond Registrar or
delivered to the Bond Registrar for cancellation;
(ii) Bonds or portions thereof for which payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Depositor) in
trust or set aside and segregated in trust by the Depositor for the
Holders of such Bonds; provided, however, that, if such Bonds or
portions thereof are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Bonds in exchange for or in lieu of which other Bonds
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Trustee is presented that any such Bonds are
held by a holder in due course; and
(iv) Bonds alleged to have been destroyed, lost or stolen
for which replacement Bonds have been issued as provided in Section
3.06;
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Bonds of any or all Series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Bonds owned by the Depositor or any other obligor upon the Bonds or any
Affiliate of the Depositor or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Bonds that the Trustee knows to be so
owned shall be so disregarded. Bonds so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Bonds and that the pledgee is not the Depositor or any other obligor upon the
Bonds or any Affiliate of the Depositor or such other obligor.
(2) With respect to Mortgage Collateral related to a Series as of
any date, "Outstanding" refers to Mortgage Collateral related to a Series with a
remaining principal balance.
"Outstanding Mortgage Collateral Amount": Together, the aggregate of
the outstanding principal balance of the Mortgage Certificates and the Mortgage
Loans.
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"Paying Agent": Any Person authorized by the Depositor to pay the
principal of or interest on any Bonds on behalf of the Depositor.
"Payment Adjustment Date": With respect to each ARM Loan, the date on
which the Borrower's monthly payment of principal and interest changes in
accordance with the terms of the Note.
"Payment Date": With respect to any Series or Class, each date
specified as a Payment Date for the Bonds of such Series or Class in the related
Series Supplement (or if such day is not a Business Day, the next succeeding
Business Day, in the case of payments to be made on any Payment Date).
"Periodic Payment Cap": With respect to an ARM Loan, the limit on the
percentage increase or decrease that may be made on the monthly payment of
principal and interest on any Payment Adjustment Date, as set forth in the Note.
"Periodic Rate Cap": With respect to an ARM Loan, the limit, if any, on
the percentage increase or decrease that may be made on the Note Rate on any
Interest Adjustment Date, as set forth in the Note.
"Permitted Encumbrance": With respect to any Mortgage Collateral
securing a Series, (i) the lien created by a Mortgage Loan, (ii) liens for
taxes, assessments, levies, fees and other governmental and similar charges
either not yet due or being contested in an appropriate Proceeding which shall
suspend the collection thereof, shall not expose any part of the Trust Estate
securing such Series to loss, sale or forfeiture and shall not affect the
payments to the Trustee of any amounts payable under this Indenture to the
Trustee, and (iii) the exceptions to title set forth in any Title Insurance
Policy.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Pool Insurance Insurer": With respect to a Series, the issuer of the
Pool Insurance Policy named in the related Series Supplement, or any successor
thereto, or the named Insurer in any replacement policy obtained by the Master
Servicer for such Series.
"Pool Insurance Policy": With respect to a Series, any blanket mortgage
insurance policy that may be provided for in the related Series Supplement as an
addition to or in place of the Primary Mortgage Insurance Policies for the
Mortgage Loans securing such Series, or any replacement policy.
"Primary Mortgage Insurance Policy": The policy of primary mortgage
insurance (including all endorsements thereto) issued by the Mortgage Insurer
with respect to a Mortgage Loan, or any replacement policy.
"Principal Determination Date": With respect to an accounting pursuant
to Section 12.09, for all Mortgage Collateral (other than ▇▇▇▇▇▇▇ Mac
Certificates) the first day of the month for which the accounting is given. For
▇▇▇▇▇▇▇ Mac Certificates the Principal Determination Date shall be the first day
of the month preceding the month for which the accounting is given. The initial
Principal Determination Date for a Series shall be the date or dates specified
in the related Series Supplement.
"Principal Prepayment": With respect to any Mortgage Loan or Mortgage
Certificate securing a Series, a payment of principal on such Mortgage Loan or
the mortgage loans underlying such Mortgage Certificate in excess of the
scheduled principal payments.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Qualified Substitute Mortgage Loan": A Mortgage Loan substituted by
the Depositor for a Deleted Mortgage Loan that must, on the date of such
substitution, (i) have an Unpaid Principal Balance not greater than (and not
more than [$______]less than) the Unpaid Principal Balance of the Deleted
Mortgage Loan, (ii) have a Note Rate not less than (and not more than one
percentage point in excess of) the Note Rate of the Deleted Mortgage Loan, (iii)
have a Net Rate equal to the Net Rate of the Deleted Mortgage Loan, (iv) have a
remaining term to maturity not greater than (and not more than one year less
than) that of the Deleted Mortgage Loan, (v) have a Loan-
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to-Value Ratio as of the first day of the month in which the substitution occurs
equal to or less than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of
such date (in each case, using the value of the Mortgaged Premises at
origination, and after taking into account the Monthly Payment due on such date)
and (vi) comply with each representation and warranty that had been assigned to
the Trustee with respect to the Deleted Mortgage Loan. In addition, no ARM Loan
may be substituted unless the Deleted Mortgage Loan is an ARM Loan, in which
case, the substituted Mortgage Loan must also [(A) have a Minimum Lifetime Note
Rate that is not less than the Minimum Lifetime Note Rate on the Deleted
Mortgage Loan, (B) have a Maximum Lifetime Note Rate that is not less than or
[__%] more than the Maximum Lifetime Note Rate on the Deleted Mortgage Loan, (C)
provide for a lowest possible Net Rate that is not lower than the lowest
possible Net Rate for the Deleted Mortgage Loan and a highest possible Net Rate
that is not lower than the highest possible Net Rate for the Deleted Mortgage
Loan, (D) have a Gross Margin not less than or [__%] more than the Gross Margin
of the Deleted Mortgage Loan, (E) have a Periodic Rate Cap equal to the Periodic
Rate Cap on the Deleted Mortgage Loan, (F) have a next Interest Adjustment Date
that is the same as the next Interest Adjustment Date for the Deleted Mortgage
Loan or occurs not more than two months prior to the next Interest Adjustment
Date for the Deleted Mortgage Loan, (G) not have a permitted increase or
decrease in the Monthly Payment on each Payment Adjustment Date less than or
[__%] more than the permitted increase or decrease applicable to the Deleted
Mortgage Loan, and (H) not be a Mortgage Loan convertible from a variable to a
fixed Note Rate unless the Deleted Mortgage Loan is so convertible. In the event
that more than one Mortgage Loan is substituted for a Deleted Mortgage Loan, the
amount described in clause (i) hereof shall be determined on the basis of
aggregate Unpaid Principal Balances, the rates described in clauses (iii), (A),
(B) and (C) hereof shall be determined on the basis of weighted average Note
Rates and Net Rates, as the case may be, the terms described in clause (iv)
hereof shall be determined on the basis of weighted average remaining terms to
stated maturity, provided that no Qualified Substitute Mortgage Loan may have an
original term to maturity beyond the latest original term to maturity of any
Mortgage Loan pledged to the Trustee on the Closing Date for the related Series,
the Gross Margins described in clause (D) hereof shall be determined on the
basis of weighted average Gross Margins, and the Interest Adjustment Dates
described in clause (F) hereof shall be determined on the basis of weighted
average Interest Adjustment Dates.]
"Rating Agency": Any nationally recognized statistical rating
organization rating any Series at the request of the Depositor at the time of
the issuance of such Series as specified in the related Series Supplement.
"Record Date": With respect to any Payment Date for a Series or Class,
the close of business on the day specified as the Record Date for the Bonds of
such Series or Class in the related Series Supplement.
"Records": All of the books, ledgers, documents, communications,
writings, schedules, reconciliations, controls, computer data, printouts,
programs, tapes and other electronic data processing storage devices, and all
other data relating to or maintained in connection with the Mortgage Loans,
excluding, however, the Loan Documents.
"Redemption Date": With respect to any Series or Class, the date
specified for a redemption of the Bonds of such Series or Class pursuant to
Section 11.01.
"Redemption Price": With respect to any Bond of a particular Series or
Class to be redeemed pursuant to Section 11.01 hereof, an amount equal to the
percentage specified in the related Series Supplement of the unpaid principal
amount, or unpaid Compound Value in the case of any Accretion Bond, of such Bond
to be redeemed, together with accrued and unpaid interest thereon at the
applicable Bond Interest Rate to the date specified in the related Series
Supplement.
"Redemption Record Date": With respect to any redemption of Bonds of a
Series, a date fixed pursuant to Section 11.01.
"Registered Holder": The Person whose name appears on the Bond Register
as the registered holder of a Bond.
"REO": A Mortgaged Premises acquired by a Master Servicer on behalf of
the Bondholders through foreclosure or deed-in-lieu of foreclosure.
"Reserve Fund": The meaning specified in Section 12.04.
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"Sale": The meaning contemplated in Section 6.18.
"Sales Agreement": Any agreement between a Seller and the Depositor
relating to the sale of Mortgage Collateral to the Depositor.
"Schedule of Mortgage Collateral": The Mortgage Collateral securing a
Series listed in a schedule or schedules to the related Series Supplement.
"Security Instrument": The mortgage, deed of trust or other instrument
securing a Note.
"Security Instrument Assignment": The document that transfers all the
rights of the secured party pursuant to a transferee for valid consideration.
"Seller": With respect to each Mortgage Loan or Mortgage Certificate,
any Person other than the Depositor that executes a Sales Agreement.
"Series": A separate Series of Bonds issued pursuant to this Indenture
that may, as provided in the related Series Supplement, be divided into one or
more Classes and, if divided into two or more Classes, may include one or more
Classes of Accretion Bonds.
"Series Supplement": An indenture supplemental to this Indenture that
authorizes a particular Series.
"Series Year Reporting Date": The date, as specified in the related
Series Supplement, with respect to which a Yearly Accountants' Certificate shall
be delivered pursuant to Section 13.01(d).
"Servicer Mortgage Loan File": As defined in the related Servicing
Agreement.
"Servicing Agreement": With respect to a Series, each Servicing
Agreement pursuant to which the Master Servicer of a Mortgage Loan has agreed to
perform all the duties incident to the servicing of such Mortgage Loan, as such
agreement may be amended or modified; provided, however, that any such amendment
or modification shall not materially adversely affect the interests and rights
of Bondholders.
"Servicing Fee Rate": The per annum rate specified in a Servicing
Agreement as the rate to be used in determining the fee payable to the Master
Servicer.
"Special Hazard Fund": A fund pledged to the Trustee to cover risks
comparable to those covered by a Special Hazard Insurance Policy and funded,
from time to time, by cash, securities, Eligible Investments, a Letter of Credit
or other instrument acceptable to the Rating Agency as described in the related
Series Supplement.
"Special Hazard Insurance Policy": With respect to a Series, the
Special Hazard Insurance Policy to be issued by the Special Hazard Insurer named
in the related Series Supplement or any replacement policy obtained by the
Master Servicer for such Series pursuant to the Servicing Agreement for such
Series.
"Special Hazard Insurer": With respect to a Series, the issuer of the
Special Hazard Insurance Policy named in the related Series Supplement, or any
successor thereto, or the named Insurer in any replacement policy obtained by
the Master Servicer for such Series.
"Special Record Date": With respect to the payment of any defaulted
interest and principal for Bonds of a Series, a date fixed by the Trustee
pursuant to Section 3.07.
"Standard Hazard Insurance Policy": With respect to a Mortgage Loan,
the hazard insurance policy issued by a company authorized to issue such
policies in the state in which the Mortgaged Premises securing such Mortgage
Loan is located.
"Stated Maturity": With respect to any Bond of a Series, the date
specified in such Bond as the fixed date on which the final installment of the
principal of such Bond is due and payable.
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"Subsequent Delivery Date": A date fixed by the Depositor for the
substitution of Substitute Mortgage Collateral for Original Mortgage Collateral.
"Substitute Mortgage Collateral": An item of Mortgage Collateral that
is pledged to the Trustee under this Indenture as security for a Series as
provided in Section 3.11 in lieu of an item of Original Mortgage Collateral
pledged to the Trustee as security for such Series.
"Supplement": An indenture supplemental to this Indenture.
"Surplus": With respect to each Payment Date for a Series, the
aggregate cash available in the Collateral Proceeds Account in excess of the
obligation to make payments on the Series on such Payment Date pursuant to the
related Series Supplement.
"Surplus Account": The account established pursuant to Section 12.07.
"Surplus Balance": With respect to any Series, the difference as of any
determination date between the Aggregate Collateral Value and the outstanding
aggregate principal balance of the related Bonds.
"Termination of Book-Entry System":
"Title Insurance Policy": With respect to a Mortgage Loan, the policy
of mortgagee's title insurance issued in respect of the Mortgaged Premises
securing such Mortgage Loan or a binder or commitment therefor, or in lieu of
such policy, an attorney's opinion of title.
"Trust Estate": With respect to a Series, the meaning specified in the
granting clause of the related Series Supplement.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939 as in
force at the Date of Execution, unless otherwise specifically provided.
"Trustee": Texas Commerce Bank National Association, a national banking
corporation, unless a successor Person shall have become the Trustee pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Person.
"Trustee Mortgage Loan File": With respect to each Mortgage Loan, the
meaning assigned to such term in the Servicing Agreement except that the Trustee
Mortgage Loan File may, in lieu of the original documents required by the
Servicing Agreement, include (i) documents certified as true and correct by the
appropriate public recording office and (ii) Title Insurance Policies certified
as true and correct by the applicable title insurance company.
"Trustee Officer": With respect to the Trustee, the chairman or
vice-chairman of the board of directors, the chairman or vice-chairman of the
executive committee of the board of directors, the president or any
vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer, or other trust officer or assistant trust officer in the
corporate trust department of the Trustee and, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Unpaid Principal Balance": With respect to any Mortgage Loan, the
outstanding principal balance payable by the Borrower under the terms of the
Note.
"VA": The U.S. Department of Veterans Affairs or any successor thereof.
"Vice President": Any vice president, irrespective of whether such
title is modified by any other forms preceding or following.
"Yearly Accountants' Certificate": A certificate setting forth certain
information required by Section 13.01(d).
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ARTICLE TWO
BOND FORM
Section 2.01. Forms Generally.
The Bonds of a Series and the Trustee's certificate of authentication
shall be in substantially the forms set forth in the related Series Supplement,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, or any Series Supplement, and
may have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to comply with the rules of
any securities exchange on which the Bonds may be listed or as may, consistently
herewith, be determined by the officers of the Depositor executing such Bonds,
as evidenced by their execution of such Bonds. Any portion of the text of any
Bond may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Bond.
The definitive Bonds shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by any Series
Supplement or the rules of any securities exchange on which the Bonds may be
listed, all as determined by the officers of the Depositor executing such Bonds,
as evidenced by their execution of such Bonds.
Section 2.02. Form of Bonds.
The form of each Class of Bonds for a Series shall be that specified in
the Series Supplement for such Series.
ARTICLE THREE
THE BONDS
Section 3.01. Amount Unlimited; Bonds Issuable in Series and Classes; Certain
Related Provisions.
The aggregate principal amount of Bonds that may be authenticated and
delivered under this Indenture is unlimited.
The Bonds may, at the election of and as authorized by the Board of
Directors, be issued in one or more Series, each of which Series may be issued
in one or more Classes which may include one or more Classes of Accretion Bonds,
and shall be designated generally as the "Collateralized Mortgage Bonds" of the
Depositor, with such further particular designations added or incorporated in
such title for the Bonds or any particular Series or Class as an Depositor
Officer may determine. Each Bond shall bear upon the face thereof the
designation so selected for the Series to which it belongs. All Bonds of the
same Series and Class shall be identical in all respects except for the
denominations thereof. All Bonds of all Classes within one Series at any time
Outstanding (other than Accretion Bonds in such Series) shall be identical
except for differences among the Bonds of the different Classes within such
Series in Bond Interest Rates, priorities as to the payment of interest,
repayment of principal, and Stated Maturities. All Bonds of a Class of a
particular Series issued under this Indenture shall be in all respects equally
and ratably entitled to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture.
Each Series of Bonds shall be created by a Series Supplement authorized
by a Depositor Officer and establishing the terms and provisions of such Series.
The several Series may differ as between Classes or Series, in respect of any of
the following matters:
(a) designation of the Series;
(b) Accounting Dates;
(c) Accrual Date;
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(d) the number of Classes and the maximum aggregate principal amount
of Bonds of each such Class that may be issued;
(e) the Bond Interest Rate for each Class;
(f) the Stated Maturities for each Class;
(g) the basis for principal payments on the Bonds of a Class, pro
rata or random lot;
(h) place or places for the payment of principal;
(i) denominations;
(j) Payment Dates;
(k) the Mortgage Collateral that will secure the Series;
(l) the method for determining Collateral Value;
(m) the Collateral Value Discount Rate (if applicable);
(n) the Rating Agency rating the Bonds;
(o) the amount, if any, to be deposited on the Delivery Date in the
Collateral Proceeds Account for such Series;
(p) the manner in which the Reserve Fund, if any, is to be funded and
the amount, if any, to be deposited on the Delivery Date in the Reserve Fund for
such Series;
(q) the types of Insurance Policies required for the Mortgage
Loans, if any, to be included as part of the Mortgage Collateral for such
Series;
(r) the provisions for redemption of the Bonds of such Series by the
Depositor;
(s) whether the Bonds of a Class or Series are to be issued in
certificated or Book-Entry form;
(t) the dates on which Monthly Remittance Reports are due;
(u) the Series Year Reporting Date;
(v) provisions with respect to the definitions set forth in Article
One that require or permit further specification in the related Series
Supplement; and
(w) any other provisions expressing or referring to the terms and
conditions upon which the Bonds of that Series are to be issued under this
Indenture and supplementing or modifying the provisions of this Indenture.
In authorizing the issuance of any Series, a Depositor Officer shall
determine all matters in respect of the Bonds of such Series permitted in
clauses (a) to (w) inclusive and shall also determine and specify the forms of
Bonds of such Series.
Section 3.02. Denominations.
The Bonds of each Series shall be issuable in registered certificated
or Book-Entry form, as specified in the related Series Supplement, in the
denominations as to each Class set forth in the related Series Supplement,
provided that one Bond of each Class of such Series may be issued in such
denomination as may be necessary to represent the remainder of the initial
aggregate principal amount of the Bonds of such Class of such Series.
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Section 3.03. Execution, Authentication, Delivery and Dating.
The Bonds shall be executed on behalf of the Depositor by its President
or one of its Vice Presidents and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these Officers on the Bonds may
be manual or facsimile.
Bonds bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Depositor shall bind the Depositor,
notwithstanding the fact that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Bonds or did
not hold such offices at the date of issuance of such Bonds.
At any time and from time to time after the execution and delivery of
this Indenture, the Depositor may deliver Bonds executed by the Depositor to the
Trustee for authentication; and the Trustee shall authenticate and deliver such
Bonds as in this Indenture provided and not otherwise.
Unless otherwise provided in the related Series Supplement, each Bond
shall be dated as of the date of its authentication, except that those Bonds
delivered on the Delivery Date shall be dated as of the Accrual Date.
No Bond in certificated form shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose, unless there appears
on such Bond a certificate of authentication substantially in the form provided
for in the related Series Supplement executed by the Trustee by the manual
signature of one of its authorized Officers, and such certificate upon any Bond
shall be conclusive evidence, and the only evidence, that such Bond has been
duly authenticated and delivered hereunder.
Section 3.04. [Reserved].
Section 3.05. Registration, Registration of Transfer and Exchange.
The Depositor shall cause to be kept a "Bond Register" in which,
subject to such reasonable regulations as it may prescribe, the Depositor shall
provide for the registration of Bonds and the registration of transfers of Bonds
in certificated form. The Trustee is hereby initially appointed "Bond Registrar"
for the purpose of registering Bonds and transfers of Bonds in certificated form
as herein provided.
If a Person other than the Trustee is appointed by the Depositor as
Bond Registrar, the Depositor will give the Trustee prompt written notice of the
appointment of a Bond Registrar and of the location, and any change in the
location, of the Bond Register, and the Trustee shall have the right to inspect
the Bond Register at all reasonable times and to obtain copies thereof and the
right to rely upon a certificate executed on behalf of the Bond Registrar by an
Officer thereof as to the names and addresses of the Holders of the Bonds and
the principal amounts and numbers of such Bonds.
Upon surrender for registration of transfer of any Bond in certificated
form at the office or agency of the Depositor to be maintained as provided in
Section 9.02, the Depositor shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Bonds of any authorized denominations of the same Series and Class and
of a like aggregate principal amount.
At the option of the Holder, Bonds in certificated form may be
exchanged for other Bonds of the same Series and Class in any authorized
denominations and of the like aggregate principal amount, upon surrender of such
Bonds to be exchanged at such office or agency. Whenever any Bonds in
certificated form are so surrendered for exchange, the Depositor shall execute,
and the Trustee shall authenticate and deliver, the Bonds that the Bondholder
making the exchange is entitled to receive.
All Bonds in certificated form issued upon any registration of transfer
or exchange of Bonds shall be the valid obligations of the Depositor, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Bonds surrendered upon such registration of transfer or exchange.
Every such Bond presented or surrendered for registration of transfer
or exchange shall (if so required by the Depositor or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
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satisfactory to the Depositor and the Trustee duly executed by the Holder
thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in which the
Corporate Trust Office is located, or by a member firm of a national securities
exchange, and by such other documents as the Trustee may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Bonds in certificated form, but the Depositor 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 such Bonds, other than exchanges pursuant to Section 3.04 and 10.06
not involving any transfer.
Payment and transfer procedures for Bonds in Book-Entry form shall be
as specified in the related Series Supplement.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Bonds.
If (a) any mutilated Bond is surrendered to the Trustee, or the
Depositor and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Bond, and (b) there is delivered to the
Depositor and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Depositor
or the Bond Registrar that such Bond has been acquired by a bona fide purchaser,
the Depositor shall execute and upon its request the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Bond, a new Bond of the same Series, Class, tenor and principal
amount, bearing a number not contemporaneously outstanding; provided, however,
that if any such mutilated, destroyed, lost or stolen Bond shall have become or
shall be about to become due and payable, or shall have been selected or called
for redemption, instead of issuing a new Bond, the Depositor may pay such Bond
without surrender thereof, except that any mutilated Bond shall be surrendered.
If, after the delivery of such new Bond or payment of a destroyed, lost or
stolen Bond pursuant to the proviso to the preceding sentence, a bona fide
purchaser presents for payment such original Bond, the Depositor and the Trustee
shall be entitled to recover such new Bond (or such payment) from the Person to
whom it was delivered or any Person taking such new Bond from such Person,
except a bona fide purchaser thereof, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expenses incurred by the Depositor or the Trustee in connection therewith.
Upon the issuance of any new Bond under this Section, the Depositor may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Bond issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Depositor, whether or not the
mutilated, destroyed, lost or stolen Bond 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 Bonds of the same Series and Class duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Bonds.
Section 3.07. Payment of Principal and Interest; Principal and Interest Rights
Preserved.
(a) The Current Interest Bonds of each Class shall bear interest for
each Due Period at the Bond Interest Rate for the Bonds of such Class, which
interest shall be due and payable on each Payment Date on the unpaid principal
amount of the Bonds of such Class determined as of the Accounting Date relating
to such Payment Date, commencing on the date specified in the related Series
Supplement and continuing on each Payment Date thereafter until the entire
unpaid principal amount of the Bonds of such Class is paid, whether by
acceleration or otherwise, and (to the extent lawful and enforceable) shall bear
interest on overdue interest at the Bond Interest Rate for the Bonds of such
Class.
(b) Until the entire unpaid principal balance of each Class of Bonds of
a Series with a prior Stated Maturity is paid in full or such other date as
specified in the related Series Supplement, interest for each Due Period on any
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Accretion Bonds of the same Series shall be compounded at the Bond Interest Rate
of such Accretion Bonds on each Accounting Date for that Class on the unpaid
Compound Value of such Accretion Bonds determined as of such Accounting Date,
commencing on the first Accounting Date for such Class as specified in the
related Series Supplement, and on each Accounting Date thereafter.
On the Payment Date on which the entire unpaid principal balance of
each Class of Bonds of a Series with a prior Stated Maturity is paid in full or
such other date as specified in the related Series Supplement, any remaining
portion of the amount then payable on such Payment Date shall be paid as
interest on the Accretion Bonds of the same Series and, to the extent that such
amount is less than the amount of the interest accrued on such Accretion Bonds
for the immediately preceding Due Period, the difference shall be added to the
Compound Value of the Bonds of such Class as of the Accounting Date preceding
that Payment Date. Thereafter, such Accretion Bonds shall bear interest at the
Bond Interest Rate for such Accretion Bonds, which interest shall be due and
payable for each Due Period on each Payment Date on the unpaid Compound Value of
such Accretion Bonds determined as of the Accounting Date immediately preceding
such Payment Date until the entire unpaid Compound Value of such Accretion Bonds
is paid, whether by acceleration or otherwise, and (to the extent lawful and
enforceable) shall bear interest on overdue interest at the Bond Interest Rate
for the Bonds of such Class. Notwithstanding the foregoing, in the event that
each Class of Current Interest Bonds of a Series with a prior Stated Maturity is
paid in full and that the payment of principal and interest on the Mortgage
Collateral securing such Series is insufficient at that time to pay the full
amount of required interest on any Accretion Bond on any Payment Date, the
amount of interest that is not available shall be added to the Compound Value of
such Accretion Bonds.
(c) The principal of the Bonds of a Series shall be payable as
specified in the related Series Supplement until the entire unpaid principal
balance of the Bonds of such Series is paid. All payments of principal of the
Bonds of a Class within a Series shall be allocated on a pro rata basis.
(d) Interest on and principal of Bonds issued in certificated form
shall be payable by check (subject to collection) mailed to the Person entitled
thereto at his address as it appears on the Bond Register, except for the final
payment due on Maturity of a certificated Bond of a Series, which, unless
otherwise provided by a Series Supplement, shall be made only upon presentation
and surrender of such Bond at the office or agency of the Depositor maintained
for that purpose as provided in Section 9.02. In the case of any certificated
Bond upon which the final payment is due on the Maturity of such Bond, the
Depositor or, at the Depositor's request, the Trustee in the name and at the
expense of the Depositor, shall notify the Person entitled thereto at his
address as it appears on the Bond Register that such Bond is to be paid in full.
Such notice shall be mailed as soon as practicable, and in any event no later
than the Payment Date on which the final payment is to be made on such Bond, and
shall specify the place where such Bond may be presented and surrendered for
final payment. If so provided in the related Series Supplement, upon timely
receipt by the Trustee of instructions and the payment of any required charge or
fee, the Trustee may make payments of principal and interest to certain
Bondholders by wire transfer of immediately available funds.
(e) Except to the extent provided in Section 6.21 or as may be
otherwise specifically provided by Series Supplement, interest on and principal
of the Bonds of a Series shall be payable solely from the proceeds of the Trust
Estate Granted in the related Series Supplement.
(f) The Holders of the Bonds of a Class as of the Record Date in
respect of a Payment Date shall be entitled to the interest accrued and payable
and principal payable on such Payment Date with respect to the Bonds of such
Class. Payments of principal to such Holders shall be made in the proportion
that the unpaid principal balance of the Bonds of such Class registered in the
name of each such Holder on such Record Date bears to the aggregate unpaid
principal balance of all Bonds of such Class on such Record Date. Any such
payments that are mailed and returned to the Paying Agent shall be held for
payment as herein provided at the office or agency of the Depositor to be
maintained as provided in Section 9.02.
(g) Unless otherwise provided in the related Series Supplement, any
interest on the Bonds of a Series that is payable, but is not punctually paid or
duly provided for, on any Payment Date ("Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Record Date by virtue of
having been such Holder; and such Defaulted Interest shall be paid by the
Depositor, at its election in each case, as provided in Clause (1) or Clause (2)
below:
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(1) The Depositor may elect to make payment of any
Defaulted Interest to the Holders of the Bonds of such Series as of the
close of business on a record date for the payment of such Defaulted
Interest (the "Special Record Date"), which shall be fixed in the
following manner. The Depositor shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Bond and
the date of the proposed payment, which date shall be no earlier than
[___] days after such notification (unless a shorter time shall be
acceptable to the Trustee), and at the same time the Depositor shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which [shall be not more than [___] nor less than [___] days
prior to the date of the proposed payment and not less than [___] days
after the receipt by the Trustee of the notice of the proposed
payment.] The Trustee shall promptly notify the Depositor of such
Special Record Date and the Depositor shall either mail, or cause to be
mailed, notice of the proposed payment of such Defaulted Interest and
of the Special Record Date. Such notice shall be sent by first-class
mail, postage prepaid, to each Holder of Bonds of such Series at his
address as it appears in the Bond Register, [not less than ___] days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and of the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Holders of the Bonds of such Series as of the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Depositor may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Bonds may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Depositor to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
(h) Subject to the foregoing provisions of this Section, each Bond of a
Series delivered under this Indenture and the related Series Supplement upon
registration of transfer of or in exchange for or in lieu of any other Bond
shall carry the rights to unpaid interest and principal that were carried by
such other Bond.
Section 3.08. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Bond, the
Depositor, the Trustee and any agent of the Depositor or of the Trustee may
treat the Person in whose name any Bond is registered as the owner of such Bond
for the purpose of receiving payments of principal, premium, if any, and
interest on such Bond and for all other purposes whatsoever (whether or not such
Bond is overdue), and neither the Depositor, the Trustee nor any agent of the
Depositor or the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation.
All Bonds surrendered for payment, registration of transfer, exchange
or redemption shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Depositor may
at any time deliver to the Trustee for cancellation any Bonds previously
authenticated and delivered hereunder that the Depositor may have acquired in
any manner whatsoever, and all Bonds so delivered shall be promptly canceled by
the Trustee. No Bonds shall be authenticated in lieu of or in exchange for any
Bonds canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Bonds held by the Trustee shall be destroyed unless
the Depositor shall direct by a Depositor Order that they be returned to it.
Section 3.10. [Reserved].
Section 3.11. Limited Right to Substitute Collateral.
(a) Unless otherwise provided in the related Series Supplement, on any
Subsequent Delivery Date for any Series, the Depositor shall have the right to
pledge to the Trustee under a Series Supplement as security for the Series, in
substitution for any one or more
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items of Original Mortgage Collateral securing such Series, one or more items of
Substitute Mortgage Collateral as long as each such item of Substitute Mortgage
Collateral has (a) a Collateral Value at least equal to the Collateral Value of
the item of Original Mortgage Collateral for which such item of Substitute
Mortgage Collateral is substituted, in each case determined on the last
preceding Due Date with respect to such item of Mortgage Collateral before
taking into account payments received by the Trustee on such Due Date, and (b)
an interest rate within one percentage point of, and a [Maturity Date within ___
days] of, such item of Original Mortgage Collateral for which it is substituted.
On the Subsequent Delivery Date, the Depositor shall have the
right to deliver and pledge to the Trustee as security for the Series in
exchange for each such item of Original Mortgage Collateral (1) the item of
Substitute Mortgage Collateral plus (2) cash in an amount equal to the payment
of principal and interest paid or to be paid on such Substitute Mortgage
Collateral during the month of the Subsequent Delivery Date.
Upon such substitution, all of the Depositor's right, title
and interest to the item of Substitute Mortgage Collateral shall be assigned to
the Trustee pursuant to Section 4.02(2) or (3) of this Indenture, and the
Depositor shall receive (1) the item of Original Mortgage Collateral for which
the item of Substitute Mortgage Collateral was substituted and (2) all
Collateral Proceeds received on the Due Date in the month of the Subsequent
Delivery Date by the Trustee on the item of Original Mortgage Collateral
delivered to the Depositor. The Trustee shall also receive, not later than the
Subsequent Delivery Date, an Officer's Certificate of the Depositor and of the
Master Servicer to the effect that:
(1) all instruments furnished to the Trustee in
connection with such substitution conform in all material respects to
the requirements of this Indenture and the related Series Supplement
and constitute sufficient authority hereunder for the Trustee to permit
the substitution then applied for;
(2) all conditions precedent provided for in this
Indenture and the related Series Supplement relating to the
substitution then applied for have been complied with and the Depositor
is duly entitled to effect such substitution; and
(3) each item of Substitute Mortgage Collateral has been
duly and validly assigned to the Trustee free and clear of any lien,
mortgage, pledge, charge, security interest or other encumbrance that
is prior to the lien of the Indenture, and each Mortgage Certificate
either has been registered in the name of the Trustee, its agent or
nominee or has been delivered to the Trustee for registration in the
name of the Trustee, its agent or nominee.
(b) The Depositor shall also have the right to pledge, under a
Supplement, on any date:
(1) in substitution of one or more items of Mortgage
Collateral directly securing such Series, one or more collateralized
mortgage obligations secured by the same items of Mortgage Collateral;
or
(2) in substitution of one or more collateralized
mortgage obligations pledged to secure such Series and secured by
Mortgage Collateral, a direct pledge of the Mortgage Collateral that
secured the collateralized mortgage obligations provided, however, that
in each case the Trustee shall have received a writing addressed to the
Trustee from each Rating Agency to the effect that such substitution
will not result in the lowering of its then rating of such Series of
Bonds.
(c) Notwithstanding any other provision of this Section to the contrary
(i) the Depositor's right to substitute Mortgage Collateral is limited to
substitutions that are made pursuant to the terms of, and that take place within
the time constraints provided in, the Sales Agreement and (ii) any item of
Substitute Mortgage Collateral that is a Mortgage Loan must be a Qualified
Substitute Mortgage Loan.
Section 3.12. Book-Entry Bonds.
If the Series Supplement for a Series so provides, Bonds of the Series
shall be issued initially as a single certificate in the name of a Clearing
Agency maintaining book-entry records with respect to ownership and transfer of
Book-Entry Bonds of such Series, or its nominee. In such case, the Trustee shall
deal with the Clearing Agency and Clearing Agency Participants as
representatives of the Beneficial Owners of Book-Entry Bonds of such Series
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for purposes of exercising the rights of Bondholders hereunder, and the rights
of Beneficial Owners with respect to such Book-Entry Bonds shall be limited to
those established by law and agreements between such Beneficial Owners and the
Clearing Agency and Clearing Agency Participants. Beneficial Owners of
Book-Entry Bonds shall not be entitled to certificates for the Book-Entry Bonds
as to which they are the Beneficial Owners. Requests and directions from, and
votes of, such representatives shall not be deemed to be inconsistent if they
are made with respect to different Beneficial Owners. Without the consent of the
Depositor and the Trustee, a Book-Entry Bond may not be transferred by the
Clearing Agency except to another Clearing Agency that agrees to hold the
Book-Entry Bond for the account of the Beneficial Owners.
ARTICLE FOUR
AUTHENTICATION AND DELIVERY OF BONDS
Section 4.01. General Provisions.
At any time after the execution and delivery of this Indenture, Bonds
of any one or more Series may from time to time be executed by the Depositor and
delivered to the Trustee for authentication and thereupon the same shall be
authenticated and delivered by the Trustee upon Depositor Request and upon
compliance with the conditions of Section 4.02, and upon receipt by the Trustee
of the following:
(1) an Officer's Certificate evidencing the authorization
of the execution, authentication and delivery of the Bonds and
specifying the Series, the Classes within such Series and their
respective Stated Maturities and the principal amounts and Bond
Interest Rates of each Class of such Series of Bonds to be
authenticated and delivered;
(2) an Officer's Certificate evidencing the authorization
of the execution, authentication, and delivery of this Indenture;
(3) in case the Bonds to be authenticated and delivered
are of any Series not theretofore created, an appropriate Series
Supplement, accompanied by an Officer's Certificate evidencing the
authorization of such Series Supplement (and, in the case of the first
Series to be authenticated and delivered hereunder, this Indenture),
designating the new Series to be created and prescribing, consistent
with the applicable provisions of this Indenture, the terms and
provisions relating to the Bonds of such Series;
(4) either (i) a certificate or other official document
evidencing the due authorization, approval or consent of any
governmental body or bodies at the time having jurisdiction in the
premises, together with an Opinion of Counsel that the Trustee is
entitled to rely thereon and that the authorization, approval or
consent of no other governmental body is required for the valid
issuance of such Series, or (ii) an Opinion of Counsel that no such
authorization, approval or consent of any governmental body is required
except for such registrations as are required under the Securities Act
of 1933, the TIA, and the "Blue Sky" securities and real estate
syndication laws of any state;
(5) an Opinion of Counsel, dated not earlier than the
Depositor Order, to the effect that:
(a) all instruments furnished to the
Trustee in connection with such Bonds conform in all material
respects to the requirements of this Indenture and the related
Series Supplement and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver the
Bonds then applied for;
(b) all conditions precedent provided
for in this Indenture and the related Series Supplement
relating to the authentication and delivery of the Bonds then
applied for have been complied with, and the Depositor is duly
entitled to the authentication and delivery of such Bonds;
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(c) all laws and requirements with
respect to the form and execution by the Depositor of the
related Series Supplement and the execution and delivery by
the Depositor of the Bonds then applied for have been complied
with;
(d) the Depositor has corporate power
and authority to execute and deliver the related Series
Supplement (and, in the case of the first Series to be
authenticated and delivered hereunder, this Indenture), and to
issue such Bonds and has duly taken all necessary corporate
action for those purposes;
(e) this Indenture is, and the related
Series Supplement as executed and delivered, and the Bonds
then applied for, when issued, delivered, authenticated and
paid for, will be, the valid, legal and binding obligations of
the Depositor enforceable in accordance with their terms,
subject to bankruptcy, reorganization, insolvency and other
laws affecting the enforcement of creditors' rights generally
and to general principles of equity (regardless whether such
enforceability is considered in a Proceeding in equity or at
law);
(f) the Bonds then applied for, when
issued, will be entitled to the benefits of this Indenture and
the related Series Supplement, equally and ratably with all
other Bonds of a Class of such Series, if any, theretofore
issued, delivered, authenticated and paid for and then
Outstanding hereunder;
(g) the amount of Bonds then
Outstanding under this Indenture, including the Bonds then
applied for, will not exceed the amount permitted by law;
(h) this Indenture has been duly
qualified under the Trust Indenture Act and that no
qualification of the related Series Supplement under the Trust
Indenture Act is necessary;
(i) the Depositor has the corporate
power and authority to assign, pledge and deposit the Trust
Estate with the Trustee as security for such Series and has
duly authorized such assignment, pledge and deposit with the
Trustee by all necessary corporate action; and
(j) each Mortgage Certificate or
Mortgage Loan constituting part of the Trust Estate for such
Series complies with the requirements therefor in the
applicable Series Supplement, if any, and has been duly and
validly assigned to the Trustee, each Mortgage Certificate
either has been registered in the name of the Trustee, its
nominee or agent, or has been delivered to the Trustee for
registration in the name of the Trustee, its nominee or agent,
and all steps required by the applicable rules of GNMA,
▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or the issuer of the Other Mortgage
Certificates (other than registration by the applicable
transfer agent thereof) necessary to permit the Mortgage
Certificates that constitute part of the Trust Estate for such
Series to be duly and validly registered in the name of the
Trustee, its nominee or agent, have been taken.
(6) an Officer's Certificate stating that no Default has
occurred and is continuing under this Indenture and that the issuance of the
Bonds applied for will not result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, the Depositor's certificate of
incorporation or bylaws or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Depositor 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 Depositor 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 additional Bonds
applied for have been complied with;
(7) an Accountants' Certificate as follows:
(a) confirming that they have verified
the accuracy of the data contained on the mortgage information listing
prepared by the Depositor with respect to the Mortgage Loans securing
such Series and on the data sheet prepared by the Depositor for the
Mortgage Certificates securing such Series by comparing a sample of
such data to information contained in Mortgage
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Loan files furnished by the Depositor and in such other sources as
shall be specified by them in such certificate; and
(b) confirming the initial Aggregate
Collateral Value for the Mortgage Collateral securing such Series by
reference to such sources as shall be specified by them;
(8) such other documents as the Trustee may reasonably
require.
Section 4.02. Security for Bonds.
Bonds of a new Series may from, time to time, be executed by the
Depositor and delivered to the Trustee for authentication, and thereupon the
same shall be authenticated and delivered to the Depositor by the Trustee upon
Depositor Order and upon delivery by the Depositor to the Trustee, and receipt
by the Trustee, of the following:
(1) [Reserved].
(2) Assignment of Mortgage Collateral. The assignment of
all of the Depositor's right, title and interest in and to (a) Mortgage
Certificates securing such Series and (b) Mortgage Loans, together with
the related Loan Documents, securing such Series; provided that each
Mortgage Loan satisfies each of the requirements established for
Mortgage Loans in the Series Supplement for such Series. Such Mortgage
Collateral shall have aggregate initial Collateral Values that, when
taken together with the deposit required pursuant to Section 4.02 (12),
are at least equal to the aggregate principal amount of the Bonds of
such Series on the Delivery Date.
(3) Registration of Mortgage Collateral. The Trustee
shall use its best efforts to cause each such Mortgage Certificate to
be registered in the name of the Trustee, its nominee or agent, so that
the Trustee, its nominee or agent, shall be the holder of record
thereof on or before the applicable record date for such Mortgage
Certificates occurring in the month in which the Accrual Date occurs.
In the event the Trustee will not be able to become the holder of
record by such date, the Trustee shall use its best efforts to cause
each such Mortgage Certificate to be registered in the name of the
Trustee, its nominee or agent, on or prior to the applicable record
date of the succeeding month, and the Depositor shall cause a deposit
to be made for such Series in the Collateral Proceeds Account in
accordance with Section 4.02(12).
Notwithstanding any provisions herein to the contrary, the
Trustee or the Depositor shall cause assignments of Mortgage Loans to
the Trustee to be prepared and recorded with respect to all Mortgage
Loans not later than [______] calendar days following the Delivery Date
for a Series, which recordation shall be an expense of the Depositor.
For each Mortgage Loan for which an assignment is not duly and timely
recorded as provided above, the Trustee shall cause the Master Servicer
to withdraw the Mortgage Loan from the lien of the Indenture pursuant
to the provisions of Section 12.11 hereof. As evidence of recordation,
the Trustee shall be entitled to rely upon, among other things, (i) a
certification from a title insurance company, (ii) an Opinion of
Counsel, (iii) a recorded assignment or (iv) a clerk's receipt as to
the recordation of any or all of the assignments.
(4) [Reserved].
(5) [Reserved].
(6) Reserve Fund. Evidence of funding of the Reserve
Fund, if any, for such Series in the form of cash, Certificates of
Deposit or Letters of Credit in an amount that will satisfy the
requirements specified in the Series Supplement for such Series.
(7) Other Funds. Evidence of funding of any other funds
for such Series in the form of cash, Certificates of Deposit, Letters
of Credit, insurance policies or such other forms as may be specified
in the related Series Supplement.
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(8) Certificate of the Depositor. An Officer's
Certificate from the Depositor, dated as of the date of the Depositor
Order, to the effect that, in the case of each Mortgage Certificate or
Mortgage Loan securing such Series and immediately prior to the
delivery thereof on the Delivery Date for such Series:
(a) the Depositor is either the owner or the
pledgee of such Mortgage Certificate or Mortgage Loan;
(b) the Depositor has acquired its ownership or
security interest in such Mortgage Collateral in good faith
without notice of any adverse claim;
(c) the Depositor has not assigned any interest
or participation in such Mortgage Collateral (or, if any such
interest or participation has been assigned, it has been
released);
(d) the Depositor has full right to Grant a
security interest in and assign and pledge the Trust Estate to
the Trustee;
(e) the Special Hazard Insurance Policy, if any,
is in effect with respect to such Mortgage Loan;
(f) the Mortgagor Bankruptcy Bond, if any, is in
effect with respect to such Mortgage Loan; and
(g) the information set forth with respect to
each Mortgage Certificate and Mortgage Loan in the Schedule of
Mortgage Collateral for the Bonds of such Series is correct.
(9) Certificate of the Master Servicer. An Officer's
Certificate from the Master Servicer, if any, for such Series, dated as
of the date of the Depositor Order, to the effect that:
(a) no Event of Default by such Master Servicer
has occurred under the Servicing Agreement for such Series;
(b) to the extent required by any Rating Agency
rating the Bonds of such Series, a guaranty of the performance
of certain obligations of such Master Servicer under the
Servicing Agreement has been provided; and
(c) such Master Servicer maintains such errors
and omissions insurance and fidelity bond coverage as is
required by ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac.
(10) Certificates of Insurers. An Officer's Certificate,
dated the date of the Depositor Order, from each Insurer, if any, to
the effect that the Insurance Policy issued by such Insurer, if any, is
in effect, subject to its terms and conditions, with respect to the
Bond of such Series or the Mortgage Collateral securing such Series.
(11) [Reserved].
(12) Deposits to Collateral Proceeds Account. With respect
to each Series unless otherwise provided in the related Series
Supplement, the amount, if any, by which the principal amount of the
Bonds to be issued, plus interest thereon due on the first Payment
Date, exceeds the Collateral Value of the Mortgage Collateral, plus
interest that the Trustee will be entitled to receive on or before the
first Payment Date, in each case determined in accordance with
procedures acceptable to each Rating Agency rating the Bonds at the
request of the Depositor.
(13) [Reserved].
(14) Mortgagor Bankruptcy Bond, Special Hazard Insurance
Policy and Pool Insurance Policy. Evidence of the execution and
delivery of the Mortgagor Bankruptcy Bond, if any, with respect to
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such Series and of the issuance of the Special Hazard Insurance Policy,
if any, and Pool Insurance Policy, if any.
(15) Servicing Agreement. An executed copy of the
Servicing Agreement, if any, with respect to such Series.
(16) Other. Such other documents, certificates,
instruments or opinions as may be required by the terms of the Series
Supplement creating such Series of Bonds.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
Section 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with respect to a
Series except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Bonds, (iii) the rights of
Bondholders of such Series to receive payments of principal thereof and interest
thereon, (iv) the rights, obligations and immunities of the Trustee hereunder
and (v) the rights of Bondholders of such Series as beneficiaries hereof with
respect to the property so deposited with the Trustee and payable to all or any
of them, and the Trustee, on demand of and at the expense of the Depositor,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Series when:
(1) either:
(a) all Bonds of such Series
theretofore authenticated and delivered (other than (i) Bonds
that have been destroyed, lost or stolen and that have been
replaced, or paid as provided in Section 3.06, and (ii) Bonds
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Depositor and
thereafter repaid to the Depositor or discharged from such
trust, as provided in Section 9.03) that have been delivered
to the Trustee for cancellation; or
(b) all Bonds of such Series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable; or
(ii) will become due and payable at
their Stated Maturity of their principal within one year; or
(iii) are to be called for redemption
within one year under an arrangement satisfactory to the
Trustee for the giving of notice of redemption by the
Depositor;
and the Depositor, in the case of (i), (ii) or (iii) of
paragraph (b) above, has irrecoverably deposited or caused to
be deposited with the Trustee, in trust for such purpose, cash
or Eligible Investments in an amount sufficient to pay and
discharge the entire indebtedness on such Bonds not
theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest to the date of such
deposit (in the case of Bonds which have become due and
payable), or to the Maturity or the Redemption Date, and in
the case of Bonds that were not paid at the Stated Maturity
Date of their unpaid principal amount, for all overdue and
other interest payable on such Bonds to the next succeeding
Payment Date therefor; provided, however, that (i), (ii) and
(iii) of paragraph (b) above shall be inapplicable if an
election to act in accordance with the provisions of Section
6.05 shall have been made and not rescinded;
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(2) the Depositor has paid or caused to be paid all other
sums payable hereunder by the Depositor with respect to such Series;
and
(3) the Depositor has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel satisfactory in form
and substance to the Trustee, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Bonds of such Series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Depositor to the Trustee under Section 7.07 and of the
Trustee to the Bondholders under Section 5.02 shall survive.
Section 5.02. Application of Trust Money.
All monies deposited with the Trustee pursuant to Section 5.01 shall be
held in trust and applied by it, in accordance with the provisions of the Bonds
of the applicable Series and this Indenture, to the payment of the principal and
interest, either directly or through any Paying Agent, as the Trustee may
determine, to the Person entitled thereto of the principal and interest for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required herein or
required by law.
ARTICLE SIX
REMEDIES
Section 6.01. Events of Default.
"Event of Default" with respect to any Series shall have the meaning
set forth in the related Series Supplement.
Section 6.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to the Bonds of a Series occurs and
is continuing then and in every such case the Trustee or the Holders of not less
than [___%] in principal balance of the Outstanding Bonds of such Series (voting
as a group with respect to such Series) may declare the principal of all the
Bonds of such Series affected thereby to be immediately due and payable, by a
notice in writing to the Depositor (and to the Trustee if given by Bondholders),
and upon any such declaration such principal, together with accrued and unpaid
interest thereon to the date of such acceleration, shall become immediately due
and payable. Notwithstanding the foregoing, if an Event of Default with respect
to the Bonds of a Series occurs and is continuing solely as the result of an
order or judgment arising out of a Proceeding, which order or judgment prevents
the application by the Trustee, as provided in this Indenture, of the proceeds
of one or more items of Mortgage Collateral included in the Trust Estate for
such Series, the Trustee shall declare to be immediately due and payable by lot
among all Classes of Bonds of such Series, by notice in writing to the
Depositor, and upon any such declaration there shall become due and payable,
Bonds of such Series in a principal amount equal to the Collateral Values of
such Mortgage Collateral. The Bonds to become so due and payable shall be
allocated by Class among the Series on the basis of the principal amount of
Bonds attributable to such Mortgage Collateral. The Bonds to become so due and
payable will be allocated among Classes within the Series on the basis of the
principal amount of Bonds within each Class attributable to the Mortgage
Collateral sold by the Trustee. Such declarations and any other remedial action
in connection therewith by the Trustee shall be the sole remedy for the Holders
of Bonds of such Series upon the happening of such occurrence.
At any time after such a declaration of acceleration of Maturity has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal balance of the Outstanding Bonds of the Series that has
been declared due and payable as herein provided, by written notice to the
Depositor and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) (a) the Depositor has paid or deposited with the Trustee a sum
sufficient to pay
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(i) all overdue installments of
interest and principal on all Bonds of such Series,
(ii) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest on the Bonds of such Series
at the applicable Bond Interest Rates for such
Series, and
(iii) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect
to a Series, other than the non-payment of the interest or
principal of Bonds of such Series that have become due solely
by such acceleration, have been cured or waived as provided in
Section 6.15; or
(2) an election is made to act in accordance with the
provisions of Section 6.05 with respect to the Event of Default with
respect to the Bonds of such Series that gave rise to such declaration.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Depositor covenants that if Default is made in the payment of any
principal of or interest on any Bond of any Series, the Depositor will, upon
demand of the Trustee, pay to it, for the benefit of the Holder of such Bond of
such Series, but only from the Trust Estate securing the Bonds of such Series,
the whole amount then due and payable on such Bond for principal and interest,
with interest upon the overdue principal and, to the extent that payments of
such interest shall be legally enforceable, upon overdue installments of
interest, at the Bond Interest Rate for such Bond, 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 Trustee, its agents and counsel.
If the Depositor fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as Trustee of an express trust, may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the same against
the Depositor or any other obligor upon the Bonds and collect the monies
adjudged or decreed to be payable in the manner provided by law.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Bondholders by such appropriate Proceedings as the Trustee shall deem most
effectual 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 Trustee by this Indenture or by law. Any
proceedings brought by the Trustee on behalf of the Bondholders or any
Bondholder against the Depositor shall be limited to the preservation,
enforcement and foreclosure of the liens, assignments, rights and security
interests under the Indenture and no attachment, execution or other unit or
process shall be sought, issued or levied upon any assets, properties or funds
of the Depositor, other than the Trust Estate relative to the Bonds in respect
of which such Event of Default has occurred. If there is a foreclosure of any
such liens, assignments, rights and security interests under this Indenture, by
private power of sale or otherwise, no judgment for any deficiency upon the
indebtedness represented by the Bonds may be sought or obtained by the Trustee
or any Bondholder against the Depositor. The Trustee shall be entitled to
recover the costs and expenses expended by it pursuant to this Article V
including reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
In case there shall be pending Proceedings relative to the Depositor or
any other obligor upon the Bonds 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 Depositor or its property or such other obligor or its
property, or in case of any other comparable judicial Proceedings relative to
the Depositor or other obligor upon the Bonds of any Series, or the creditors or
property of the Depositor or such other
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obligor, the Trustee, regardless whether the principal of any Bonds shall then
be due and payable as therein expressed or by declaration or otherwise and
regardless whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.03, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the
Bonds of any Series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Bondholders allowed in any Proceedings relative to the Depositor or
other obligor upon the Bonds of any Series, or to the creditors or
property of the Depositor or such other obligor;
(b) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of the Bonds of any Series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
Proceedings or person performing similar functions in comparable
Proceedings; and
(c) to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Bondholders and of
the Trustee on their behalf; and any trustee, receiver or liquidator,
custodian or other similar official is hereby authorized by each of the
Bondholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to the
Bondholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence
or bad faith.
Amounts payable to the Trustee under this section are intended to
constitute administrative expenses. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Bondholder any plan of reorganization, arrangement, adjustment
or composition affecting the Bonds of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Bondholder in any such Proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
In any Proceedings brought by the Trustee (and also any Proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Bonds, and it shall not be necessary to make any Holders of the Bonds
parties to any such Proceedings.
Section 6.04. Remedies.
(a) If an Event of Default with respect to any Series shall have
occurred and be continuing and the Bonds for such Series have been declared due
and payable and such declaration and its consequences have not been rescinded
and annulled, the Trustee may, for the benefit of the Bondholders, do one or
more of the following:
(i) institute Proceedings for the collection of all
amounts then payable on the Bonds of such Series or under this
Indenture, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Trust Estate securing the Bonds of such
Series and from the Depositor monies adjudged due, subject in all cases
to the provisions of Sections 9.01 and 6.03;
(ii) in accordance with Section 6.18, sell all or a
portion of the Trust Estate securing the Bonds of such Series or rights
of interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
(iii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Trust Estate securing the Bonds of such Series;
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(iv) exercise any remedies of a secured party under the
Uniform Commercial Code and take any other appropriate action to
protect and enforce the rights and remedies of the Trustee or the
Holders of the Bonds of such Series hereunder; and
(v) refrain from selling the Trust Estate and apply all
monies collected pursuant to Section 6.08;
Section 6.05. [Reserved].
Section 6.06. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial Proceeding relative to the Depositor or any other obligor upon the
Bonds of any Series or the property of the Depositor or of such other obligor,
the Trustee (regardless whether the principal of the Bonds of such Series shall
then be due and payable as therein expressed or by declaration or otherwise and
regardless whether the Trustee shall have made any demand on the Depositor for
the payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such Proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Bonds of such
Series and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders of
the Bonds of such Series allowed in such judicial Proceeding; and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, or sequestrator (or other
similar official) in any such judicial Proceeding is hereby authorized by each
Holder of Bonds of such Series to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of the Bonds of such Series, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of Bonds of
such Series any plan of reorganization, arrangement, adjustment or composition
affecting the Bonds of such Series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Bondholder in any
such Proceeding.
Section 6.07. Trustee May Enforce Claims Without Possession of Bonds.
All rights of action and claims under this Indenture or the Bonds of
any Series may be prosecuted and enforced by the Trustee without the possession
of any of the Bonds of such Series or the production thereof in any Proceeding
relating thereto, and any such Proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Bonds in respect of which such
judgment has been recovered.
Section 6.08. Application of Money Collected.
Except as provided in Section 6.21, if applicable, any money collected
by the Trustee with respect to the Bonds of any Series pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Bonds of such Series and the notation
thereon of such payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To reimbursement of the Trustee for all expenses associated with
the disposition of all or a portion of the Trust Estate or the exercise of any
of the other remedies set forth in this Article Six;
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SECOND: To reimburse the Master Servicer, the Trustee and the Depositor
for advances made with respect to the Mortgage Loans;
THIRD: To the payment of the Bonds;
FOURTH: To reimburse the Reserve Fund, if any, for amounts drawn on it
pursuant to Section 12.15;
FIFTH: To the payment of all amounts due the Trustee under Section
7.07; and
SIXTH: To the Depositor or any other Person legally entitled thereto,
any remaining funds.
Section 6.09. Limitation on Suits.
No Holder of any Bond of a Series shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default in respect of such Series;
(2) the Holders of not less than [___%] in principal
balance of the Outstanding Bonds of such Series shall have made written
request to the Trustee to institute Proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for [___] days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
Proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such [___]-day period by the
Holders of a majority in principal balance of the Outstanding Bonds of
such Series;
it being understood and intended that no one or more Holders of Bonds of a
Series 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 Bonds of such Series or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders of Bonds of such Series.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Bonds, each
representing less than a majority of the then aggregate Outstanding balance of
the Outstanding Bonds of such Series, the Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture.
Section 6.10. Unconditional Rights of Bondholders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture other than
Section 3.07(g), and subject to the provisions of the related Series Supplement
and any related Supplement the Holder of any Bond shall have the right, which is
absolute and unconditional, to receive payment of the principal of and interest
on such Bond as such principal and interest become due and payable 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 6.11. Restoration of Rights and Remedies.
If the Trustee or any Bondholder 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
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adversely to the Trustee or to such Bondholder, then and in every such case the
Depositor, the Trustee and the Bondholder shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee and
the Bondholders shall continue as though no such Proceeding had been instituted.
Section 6.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Bondholder 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 6.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Bond to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Bondholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Bondholders, as the
case may be.
Section 6.14. Control by Bondholders.
The Holders of a majority in principal balance of the Outstanding Bonds
of each Series affected (voting as one Class with respect to each Series) shall
have the right to direct the time, method and place of conducting any Proceeding
for any remedy available to the Trustee with respect to the Bonds of such Series
or exercising any trust or power conferred on the Trustee with respect to such
Series; provided that:
(1) such direction shall not be in conflict with any rule
of law or with this Indenture;
(2) any direction to the Trustee to undertake a sale of
the Trust Estate shall be by the Holders of the Bonds representing the
percentage of the principal balance of the Outstanding Bonds specified
in Section 6.18(b)(1), unless Section 6.18(b)(2) is applicable; and
(3) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction; provided,
however, that, subject to Section 7.01, the Trustee need not take any
action that it determines might involve it in liability or be unjustly
prejudicial to the Bondholders not consenting.
Section 6.15. Waiver of Past Defaults.
The Holders of a majority in principal balance of the Outstanding Bonds
of any Series may on behalf of the Holders of all the Bonds of such Series waive
any past Default with respect to such Series and its consequences, except a
Default:
(1) in the payment of the principal of or interest on any
Bond of such Series unless an election to act in accordance with the
provisions of Section 6.05 shall have been made and not been rescinded;
or
(2) in respect of a covenant or provision hereof that
under Section 10.02 cannot be modified or amended without the consent
of the Holder of each Outstanding Bond affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
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Section 6.16. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Bond by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Bondholder, or group of Bondholders,
holding in the aggregate more than [___%] in principal balance of the
Outstanding Bonds of a Series, or to any suit instituted by any Bondholder for
the enforcement of the payment of the principal of or interest on any Bond on or
after the Stated Maturity expressed in such Bond (or, in the case of redemption,
on or after the applicable Redemption Date or Special Redemption Date).
Section 6.17. Waiver of Stay or Extension Laws; Non-Petition.
Each Holder of a Bond shall be deemed to have agreed, by its acceptance
thereof, to not file, or join in filing, any petition in bankruptcy or commence
any similar proceeding in respect of the Depositor for a period of one year and
one day following the payment in full of such Bond.
The Depositor 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, which may affect the covenants or the
performance of this Indenture; and the Depositor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 6.18. Sale of Trust Estate.
(a) The power to effect any sale of any portion of the Trust
Estate securing a Series pursuant to Section 6.04 shall not be exhausted by any
one or more Sales as to any portion of such Trust Estate remaining unsold but
shall continue unimpaired until the entire Trust Estate securing the Bonds of
such Series shall have been sold or all amounts payable on the Bonds of such
Series and under this Indenture with respect thereto shall have been paid. The
Trustee may from time to time postpone any Sale by public announcement made at
the time and place of such Sale. The Trustee hereby expressly waives its right
to any amount fixed by law as compensation for any Sale.
(b) To the extent permitted by law, the Trustee shall not in any
private Sale sell or otherwise dispose of the Trust Estate, or any portion
thereof, unless:
(1) the Holders of Bonds representing not less than
[___%] of the principal balance of the Outstanding Bonds of any Series
consent to or direct the Trustee to make such Sale; or
(2) the proceeds of such Sale would be not less than the
entire amount that would be payable to the Holders of the Bonds of such
Series, in full payment thereof in accordance with the Series
Supplement for such Series, on the Payment Date next succeeding the
date of such Sale.
The purchase by the Trustee of all or any portion of the Trust
Estate at a private Sale shall not be deemed a Sale or disposition thereof for
purposes of this Section 6.18(b).
(c) Unless the Holders of all Outstanding Bonds of any Series have
otherwise consented or directed the Trustee, at any public Sale of all or any
portion of the Trust Estate at which a minimum bid equal to or greater than the
amount described in paragraph (2) of subsection (b) of this Section 6.18 has not
been established by the Trustee and no Person bids an amount equal to or greater
than such amount, Trustee, acting in its capacity as Trustee on behalf of the
Bondholders, shall prevent such sale and bid an amount (which shall include the
Trustee's right, in its capacity as Trustee, to credit bid) [at least $1.00]
more than the highest other bid in order to preserve the Trust Estate on behalf
of the Bondholders.
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(d) In connection with a Sale of all or any portion of the Trust
Estate:
(1) any Holder or Holders of Bonds of any Series may bid
for and purchase the property offered for Sale, and upon compliance
with the terms of sale may hold, retain and possess and dispose of such
property, without further accountability, and may, in paying the
purchase money therefor, deliver any Outstanding Bonds or claims for
interest thereon in lieu of cash up to the amount that shall, upon
distribution of the net proceeds of such Sale, be payable thereon, and
such Bonds, in case the amounts so payable thereon shall be less than
the amount due thereon, shall be returned to the Holders thereof after
being appropriately stamped to show such partial payment;
(2) the Trustee may bid for and acquire the property
offered for Sale in connection with any public Sale thereof, and, in
lieu of paying cash therefor, may make settlement for the purchase
price by crediting the gross Sale price against the sum of (A) the
amount that would be payable to the Holders of the Bonds as a result of
such Sale in accordance with the Series Supplement for such Series on
the Payment Date next succeeding the date of such Sale and (B) the
expenses of the Sale and of any Proceedings in connection therewith
which are reimbursable to it, without being required to produce the
Bonds in order to complete any such Sale or in order for the net Sale
price to be credited against such Bonds, and any property so acquired
by the Trustee shall be held and dealt with by it in accordance with
the provisions of this Indenture;
(3) the Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of
the Trust Estate in connection with a Sale thereof;
(4) the Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Depositor to transfer and convey its
interest in any portion of the Trust Estate in connection with a Sale
thereof, and to take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be
bound to ascertain the Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of
any moneys.
Section 6.19. Action on Bonds.
The Trustee's right to seek and recover judgment on the Bonds of any
Series or under this Indenture shall not be affected by the seeking or obtaining
of or application for any other relief under or with respect to this Indenture.
Neither the lien of this Indenture nor any rights or remedies of the Trustee or
the Bondholders shall be impaired by the recovery of any judgment by the Trustee
against the Depositor or by the levy of any execution under such judgment upon
any portion of the Trust Estate or upon any of the assets of the Depositor.
Section 6.20. Recourse.
Except as may be otherwise specifically provided in the related Series
Supplement, in the event of a Default on a Series of Bonds, the Holders of the
Bonds of that Series shall have no recourse (i) to the Depositor, (ii) to the
Trust Estate Granted to the Trustee to secure any other Series of Bonds or (iii)
to any other assets of the Depositor that have been pledged to secure debt
obligations of the Depositor other than the debt obligation represented by the
Series.
Section 6.21. Advances by Depositor.
Notwithstanding the provisions of Section 6.20 hereof, the Depositor or
any other Person may at any time advance funds to the Trustee, without the
obligation to do so, for the purpose of allowing the Trustee to make payments on
the Bonds. If the Depositor or other Person makes such an advance, it shall be
entitled to direct the Trustee to withdraw from the Collateral Proceeds Account,
on any Payment Date, the amount so advanced and to pay such amount to the
Depositor or such other Person.
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Section 6.22. Application of the Trust Indenture Act.
Pursuant to Section 316(a) of the TIA, all provisions automatically
provided for in Section 316(a) are hereby expressly excluded.
ARTICLE SEVEN
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not herein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01. Section 7.02. Notice of Default.
Section 7.02. Notice of Default.
Upon the occurrence of a Default hereunder known to the Trustee with
respect to the Bonds, the Trustee shall give the Holders notice of such Default
as and to the extent provided by the Trust Indenture Act.
Section 7.03. Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Depositor mentioned
herein shall be sufficiently evidenced by a Depositor Request or
Depositor Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) as a condition to the taking, suffering or omitting
of any action by it hereunder, the Trustee may consult with counsel,
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture or to honor
the request or direction of any of the Bondholders pursuant to this
Indenture, unless such Bondholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such
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further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Depositor, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized
or within its rights or powers.
Section 7.04. Not Responsible for Recitals or Issuance of Bonds.
The recitals contained herein and in the Bonds, except the certificates
of authentication on the Bonds, shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Bonds. The Trustee shall not be accountable for the use or
application by the Depositor of Bonds or the proceeds thereof or any money paid
to the Depositor or upon Depositor Order pursuant to the provisions hereof.
Section 7.05. May Hold Bonds.
(a) The Trustee, any Paying Agent, any Bond Registrar or
any other agent of the Depositor, in its individual or any other
capacity, may become the owner or pledgee of Bonds and, subject to
Sections 7.08 and 7.13, may otherwise deal with the Depositor with the
same rights it would have if it were not Trustee, Paying Agent, Bond
Registrar or such other agent.
(b) The Trustee or one or more of its Affiliates may
enter into one or more custodial agreements with one or more Master
Servicers of the GNMA Certificates, as issuers of the GNMA
Certificates, or one or more Master Servicers of the ▇▇▇▇▇▇▇ Mac
Certificates or ▇▇▇▇▇▇ Mae Certificates or to act as custodian or agent
of the documents evidencing and relating to the Mortgage Loans that are
grouped or pooled under one or more guaranty agreements or Servicing
Agreements between any such Master Servicer and GNMA, ▇▇▇▇▇▇▇ Mac or
▇▇▇▇▇▇ Mae and with respect to which Mortgage Certificates are issued;
and the Trustee further may, from time to time, be the depository of
custodial accounts with respect to one or more of such Mortgage groups
or pools of Mortgage Loans. It is expressly recognized and agreed by
all parties hereto, and each Holder of a Bond by acceptance thereof
shall be deemed to have agreed, that, in the Event of Default under one
or more Servicing Agreements, the Trustee, or one or more of its
Affiliates, as custodian of one or more groups or pools of Mortgage
Loans or accounts related thereto, may be obliged to comply with the
directions of GNMA, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae regarding the property in
its possession and, to the extent that such actions are consistent with
the directions of GNMA, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, they shall not be,
or be deemed to be, inconsistent or in conflict with the duties,
responsibilities and interests of the Trustee hereunder.
(c) The Trustee, or one or more of its Affiliates, may
enter into one or more custodial agreements with one or more Master
Servicers of the Mortgage Loans or other persons acceptable to the
Depositor and the Rating Agency, to act as custodian of the Loan
Documents; and the Trustee further may, from time to time, be the
depository of custodial accounts with respect to such Loan Documents.
It is expressly recognized and agreed by all parties hereto, and each
Holder of a Bond by acceptance thereof shall be deemed to have agreed,
that, in the Event of Default under one or more Servicing Agreements,
the Trustee, or one or more of its Affiliates, as custodian of the Loan
Documents or accounts related thereto, may be obliged to comply with
the directions of the Master Servicer regarding the property in its
possession and, to the extent that such actions are consistent with the
directions of the Master Servicer, they shall not be, or be deemed to
be, inconsistent or in conflict with the duties, responsibilities and
interests of the Trustee hereunder.
Section 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds held by the Trustee in trust hereunder except to the extent
required by this Indenture or by law. The Trustee shall be under no liability
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for interest on any money received by it hereunder except as otherwise agreed
upon by the Depositor and except to the extent of income or other gain on
investments that are obligations of the Trustee, in its commercial capacity, and
income or other gain actually received by the Trustee on investments, which are
obligations of others.
Section 7.07. Compensation and Reimbursement.
The Depositor agrees:
(1) to pay the Trustee, from time to time, reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents, including its attorneys, except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith); and
(3) to indemnify the Trustee and any director, officer,
employee or agent of the Trustee for any loss, liability or expense
(including costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement)
incurred in connection with the Trustee's (i) enforcing its rights and
remedies and protecting the interests, and enforcing the rights and
remedies, of the Bondholders during the continuance of an Event of
Default, (ii) defending or prosecuting any legal action in respect of
this Indenture or the Bonds, (iii) being the mortgagee of record with
respect to the Mortgage Loans and the owner of record with respect to
any Mortgaged Property acquired in respect thereof for the benefit of
Bondholders, or (iv) acting or refraining from acting in good faith at
the direction of the holders of the related Series of Bonds entitled to
not less than [___%] of the Voting Rights for such Series; provided,
however, that such indemnification will not extend to any loss,
liability or expense that constitutes a specific liability of the
Trustee pursuant to this Indenture, or to any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or
negligence on the part of the Trustee in the performance of its
obligations and duties hereunder, or by reason of its reckless
disregard of such obligations or duties, or as may arise from a breach
of any representation, warranty or covenant of the Trustee made herein.
To secure the Trustee's right to receive amounts pursuant to this
Section 7.07, the Trustee shall have a lien against the Trust Estate, which lien
shall at all times be subordinate to the lien in favor of the Bondholders. The
Trustee hereby agrees not to cause the filing of a petition in bankruptcy
against the Depositor for the non-payment to the Trustee of any amounts provided
by this Section 7.07 until at least [___] days after the payment in full of all
Bonds issued under this Indenture.
Section 7.08. Disqualification.
Irrespective of whether this Indenture is qualified under the TIA, this
Indenture shall always have a Trustee who satisfies the requirements of TIA
Sections 310(a)(1) and 310(a)(5). The Trustee shall always have a combined
capital and surplus as stated in Section 7.09. The Trustee shall be subject to
TIA Section 310(b).
Section 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall (a) (i) be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, or (ii)
be a member of a bank holding system, having a combined capital and surplus of
at least $50,000,000, provided that the Trustee's separate capital and surplus
shall at all times be at least the amount specified in Section 310(a)(2) of the
TIA, (b) be subject to supervision or examination by federal or state authority
and (c) have an office within the United States of America. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of
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condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the affect hereinafter specified in this Article.
Section 7.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.11.
(b) The Trustee may resign at any time with respect to one or more
Series of Bonds by giving written notice thereof to the Depositor. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within [___] days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee for any Series may be removed at any time by Act
of the Holders of a majority in principal amount of the Outstanding Bonds of
such Series, delivered to the Trustee and to the Depositor. The Trustee for any
Series may be removed at any time by the Depositor provided that the Depositor
receives confirmation that the appointment of the successor Trustee will not
result in the lowering of the rating of that Series of Bonds.
(d) If at any time:
(1) the Trustee shall have a conflicting interest
prohibited by Section 7.08 with respect to any Series of Bonds and
shall fail to resign or eliminate such conflicting interest in
accordance with Section 7.08 after written request therefor by the
Depositor or by any Bondholder who has been a bona fide Holder of a
Bond for at least [six months]; or
(2) the Trustee shall cease to be eligible under Section
7.09 and shall fail to resign after written request therefor by the
Depositor or by any such Bondholder; or
(3) the Trustee shall become incapable of acting with
respect to any Series of Bonds or shall be adjudged a bankrupt or
insolvent or a receiver or liquidator of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Depositor by a Board Resolution may remove the
Trustee, and the Depositor shall join with the Trustee in the execution,
delivery and performance of all instruments and agreements necessary or proper
to appoint a successor Trustee and to vest in such successor Trustee any
property, title, right or power deemed necessary or desirable, subject to the
other provisions of this Indenture; provided, however, if the Depositor does not
make such appointment within [______] days after the receipt by it of a request
to do so, or in case an Event of Default has occurred and is continuing, the
Trustee may petition a court of competent jurisdiction to make such appointment,
or (ii) subject to Section 6.16, and, in the case of a conflicting interest as
described in clause (1) above, unless the Trustee's duty to resign has been
stayed as provided in TIA Section 310(b), any Bondholder who has been a bona
fide Holder of a Bond for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Depositor, by a Board Resolution, shall promptly appoint a successor
Trustee. If within one year after such resignation, removal or incapability or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal balance of the Outstanding Bonds of that
Series delivered to the Depositor and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Depositor. If no successor Trustee shall have been so appointed by the
Depositor or the Bondholders and shall have accepted appointment in the manner
hereinafter provided, any Bondholder who has been a bona fide Holder of a Bond
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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(f) The Depositor shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of the applicable Series of Bonds as their names and addresses appear in
the Bond Register. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
Section 7.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Depositor and the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee with respect to all or any applicable Series shall become effective, and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, duties and obligations with
respect to such Series of the retiring Trustee; but, on request of the Depositor
or the successor Trustee, such retiring Trustee shall, upon payment of its
charges then unpaid, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 7.07. Upon request of any such successor
Trustee, the Depositor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
If a successor Trustee is appointed with respect to the Bonds of one or
more (but not all) Series, the Depositor, the predecessor Trustee and each
successor Trustee with respect to the Bonds of any applicable Series shall
execute and deliver an agreement supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Bonds of any Series as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental agreement shall
constitute such Trustees co-Trustees of the same trust and that each such
Trustee shall be a Trustee of a trust or trusts under separate indentures.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article and the Trustee or an Affiliate of the Trustee shall be approved by
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac as a seller-servicer of Mortgage Loans.
Section 7.12. Merger, Conversion, Consolidation or Succession to Business
or Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Bonds have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Bonds so authenticated with the same effect as if
such successor Trustee had itself authenticated such Bonds.
Section 7.13. Preferential Collection of Claims Against Depositor.
The Trustee (and any co-trustee or separate trustee) shall be subject
to TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b), and a Trustee (and any co-trustee or separate trustee) who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 7.14. Co-Trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal requirements
of the TIA or of any jurisdiction in which any of the Trust Estate may at the
time be located, the Depositor shall have power to appoint, and upon the written
request of the Trustee or of the Holders of Bonds representing more than [___%]
of the principal balance of the Outstanding Bonds with respect to which a
co-trustee or separate trustee is being appointed, the Depositor shall
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for such purpose join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint one
or more Persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, of all or any part of the Trust Estate, or to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within [__ days] after the receipt by it of a
request to do so, or in case an Event of Default has occurred and is continuing,
the Trustee alone shall have power to make such appointment. All fees and
expenses of any co-trustee or separate trustee shall be payable by the
Depositor.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:
(1) The Bonds shall be authenticated and delivered and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised, solely by the Trustee.
(2) The rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(3) The Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Depositor evidenced by a
Depositor Order, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section, and, in case an Event
of Default has occurred and is continuing, the Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor upon the
written request of the Trustee, the Depositor shall join with the
Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this Section.
(4) No co-trustee or separate Trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder.
(5) Any Act of Bondholders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 7.15. Review of Mortgage Files.
(a) Initial Certification. The Indenture Trustee shall, for the
benefit of the Bondholders, review each Trustee Mortgage Loan File prior to the
Closing Date to ascertain that all documents required to be included in the
Trustee Mortgage Loan File are included therein, and shall deliver to the Seller
and the Master Servicer on the Closing Date an Initial Certification in the form
attached hereto as Exhibit A-1 with respect to each Mortgage Loan to the effect
that, except as specifically noted on a schedule of exceptions thereto, (A) all
documents required to be contained in the Trustee Mortgage Loan File are in its
possession, (B) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan, and (C) based on its examination
and only as to the foregoing documents, the information set forth on the related
Mortgage Loan schedule accurately reflects information set forth in the Trustee
Mortgage Loan File.
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It is understood that before making the Initial Certification, the
Security Instrument Trustee shall examine the related Mortgage Loan Documents to
confirm that:
(1) each Note and Security Instrument bears an original
signature or signatures purporting to be that of the Person or Persons
named as the maker and mortgagor/trustor or, if photocopies are
permitted, that such copies bear a reproduction of such signature or
signatures;
(2) except for the endorsement to the Trustee, neither
the Security Instrument nor any Assignment, on the face or the reverse
side(s) thereof, contains evidence of any unsatisfied claims, liens,
security interests, encumbrances or restrictions on transfer;
(3) the principal amount of the indebtedness secured by
the related Security Instrument is identical to the original principal
amount of the related Note;
(4) the Assignment of the related Security Instrument
from the Seller to the Trustee bears an original signature of the
Seller and any other necessary party (or signatures purporting to be
that of the Seller and any such other party) or, if photocopies are
permitted, that such copies bear a reproduction of such signature or
signatures;
(5) if intervening Assignments are included in the
Trustee Mortgage Loan File, each such intervening Assignment bears an
original signature of the related mortgagee and/or the assignee (and
any other necessary party) (or signatures purporting to be that of each
such party) or, if photocopies are permitted, that such copies bear a
reproduction of such signature or signatures;
(6) if either a Title Insurance Policy, a preliminary
title report or a written commitment to issue a Title Insurance Policy
is delivered, the address of the real property set forth in such
policy, report or written commitment is identical to the real property
address contained in the related Security Instrument; and
(7) if any of a Title Insurance Policy, certificate of
title insurance or a written commitment to issue a Title Insurance
Policy is delivered, such policy, certificate or written commitment is
for an amount not less than the original principal amount of the
related Note and such title insurance policy insures that the related
Security Instrument creates a first lien, senior in priority to all
other deeds of trust, mortgages, deeds to secure debt, financing
statements and security agreements and to any mechanics' liens,
judgment liens or writs of attachment (or if the title insurance policy
or certificate of title insurance has not been issued, the written
commitment for such insurance obligates the insurer to issue such
policy for an amount not less than the original principal amount of the
related Note).
(b) Final Certification. On or before one year following the
Closing Date, the Trustee shall deliver to the Seller and the Master Servicer a
Final Certification in the form attached hereto as Exhibit A-2 evidencing the
completeness of the Trustee Mortgage Loan File for each Mortgage Loan, except as
specifically noted on a schedule of exceptions thereto.
(c) Certification Generally. In giving each of the Initial
Certification and the Final Certification, the Trustee shall be under no duty or
obligation (1) to inspect, review or examine any such documents, instruments,
securities or other papers to determine that they or the signatures thereto are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to be
on their face or (2) to determine whether any Trustee Mortgage Loan File should
include a flood insurance policy, any rider, addenda, surety or guaranty
agreement, power of attorney, buy down agreement, assumption agreement,
modification agreement, written assurance or substitution agreement.
(d) Recordation Report. No later than the [_____ Business Day of
each _____ month,] the Trustee shall deliver to the Master Servicer a
recordation report dated as of the first day of such month, identifying those
Mortgage Loans for which it has not yet received (1) an original recorded
Security Instrument or a copy thereof certified to be true and correct by the
public recording office in possession of such Security Instrument or (2) an
original recorded Assignment of the Security Instrument to the Trustee and any
required intervening Assignments or
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a copy thereof certified to be a true and correct copy by the public recording
office in possession of such Assignment.
Section 7.16. Trustee Fees and Expenses.
The Trustee shall be entitled to receive the Trustee Fee on each
Payment Date as provided herein. The Trustee also shall be entitled, pursuant to
the provisions of Section 6.05 of the Servicing Agreement, to (i) payment of or
reimbursement for expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
but not limited to the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ) as
provided in the Servicing Agreement, and (ii) indemnification against losses,
liability and expenses, including reasonable attorney's fees, incurred, arising
out of or in connection with this Indenture and the Bonds as provided in the
Servicing Agreement.
ARTICLE EIGHT
BONDHOLDERS' LIST AND REPORTS BY TRUSTEE AND DEPOSITOR
Section 8.01. Depositor to Furnish Trustee Names and Addresses of
Bondholders.
(a) The Depositor shall furnish or cause to be furnished to the
Trustee (i) [semi-annually,] not less than [___ days] nor more than [___ days]
after each Record Date with respect to each Series of Bonds, all information in
the possession or control of the Depositor, in such form as the Trustee may
reasonably require, as to names and addresses of the Holders of Bonds as of such
Record Date, and (ii) at such other times, as the Trustee may request in
writing, within [___ days] after receipt by the Depositor of any such request, a
list of similar form and content as of a date not more than [___ days] prior to
the time such list is furnished; provided, however, that so long as the Trustee
is the Bond Registrar, no such list shall be required to be furnished.
(b) In addition to furnishing to the Trustee the Bondholder lists,
if any, required under subsection (a), the Depositor shall also furnish all
Bondholder lists, if any, required under Section 9.03 at the times required by
Section 9.03.
Section 8.02. Preservation of Information; Communications to Bondholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of certificated
Bonds of a Series contained in the most recent list furnished to the Trustee as
provided in Section 8.01 and the names and addresses of the Holders of
certificated Bonds of a Series received by the Trustee in its capacity as Bond
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) Bondholders may communicate pursuant to TIA Section 312(6)
with other Bondholders with respect to their rights under this Indenture or
under the Bonds.
(c) The Depositor, the Trustee, and the Bond Registrar shall have
the protection of TIA Section 312(c).
Section 8.03. Reports by Trustee.
(a) [Within ___ days after December 31] of each year commencing in
the year after the issuance of Bonds, the Trustee shall, if required by Section
313(a) of the Trust Indenture Act, transmit by mail to all Holders of Bonds of
each Series, as their names and addresses appear in the Bond Register for such
Series, a brief report dated as of December 31 (each a "Reporting Date") with
respect to the matters set forth therein.
(b) The Trustee shall transmit by mail to all Holders of Bonds of
a Series, as their names and addresses appear in the Bond Register for such
Series of Bonds, a brief report in accordance with Section 313(b) of the Trust
Indenture Act.
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(c) A copy of each such report shall, at the time of such
transmission to the Holders of Bonds of such Series, be filed by the Trustee
with each securities exchange upon which the Bonds of such Series are listed,
and also with the Commission. The Depositor will notify the Trustee when the
Bonds of any Series are listed on any securities exchange.
(d) The Trustee shall transmit by mail to each Holder of
certificated Bonds of a Series, together with each check representing payment of
principal and/or interest on the Bonds of such Series, a report with respect to
the principal balance of the Bonds of such Series held by each Holder of Bonds
of such Series as of the immediately preceding Payment Date and the amount of
principal, interest and premium, if any, paid with respect to the Bonds of such
Series held by such Holder of Bonds of such Series since the immediately
preceding Payment Date.
(e) For Book-Entry Bonds, the Trustee shall provide an adequate
number of copies of its reports in order for the Clearing Agency and Clearing
Agency Participants to provide copies to Beneficial Owners.
(f) The Depositor shall supply to the Trustee at least [_____]
calendar days prior to any applicable filing date prescribed by law or Internal
Revenue Service regulation, and the Trustee, as agent for the Depositor, shall
transmit by mail to each Holder of Bonds, as his name and address appears in the
Bond Register, and to the Internal Revenue Service, within the time limits
prescribed by law, the amount of interest and original issue discount (which
original issue discount shall be calculated by the Depositor), if any, paid or
accrued with respect to Bonds held by such Bondholder.
(g) As required by the Code or the Treasury regulations
thereunder, the Master Servicer shall supply to the Trustee and the Trustee, as
agent for the Master Servicer, shall transmit by mail to each Bondholder
appropriate tax accounting information, and any other tax accounting information
that a Bondholder reasonably requests, to enable it to prepare its tax returns.
Section 8.04. Reports by Depositor.
The Depositor shall file with the Trustee, within [___ days] after the
Depositor 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 by rules and regulations
prescribe) that the Depositor is required to file with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. The
Depositor shall also comply with the other provisions of TIA Section 314(a).
ARTICLE NINE
COVENANTS OF DEPOSITOR
Section 9.01. Payment of Principal and Interest.
The Depositor will pay or cause to be duly and punctually paid the
principal of, and interest on, the Bonds of each Series in accordance with the
terms of the Bonds and this Indenture solely, except to the extent provided in
Section 6.21, from proceeds of the Trust Estate for such Series Granted
hereunder and under the related Series Supplement and from such assets as may at
any time be pledged to secure payment of the Bonds, and the Depositor shall not
otherwise be liable for payment on the Bonds. No person shall be personally
liable for any amounts payable under the Bonds. If any other provision of this
Indenture conflicts or is deemed to conflict with the provisions of this Section
9.01, the provisions of this Section 9.01 shall control.
Section 9.02. Maintenance of Office or Agency.
The Depositor will maintain an office or agency within the United
States of America where certificated Bonds may be presented or surrendered for
payment, where certificated Bonds may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Depositor in
respect of the Bonds and this
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Indenture may be served. The Depositor hereby initially appoints the Trustee
such office or agency. The Depositor will give prompt written notice to the
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Depositor shall fail to maintain any such office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Depositor hereby appoints the Trustee at its
Corporate Trust Office as its agent to receive all such presentations,
surrenders, notices and demands.
Section 9.03. Money for Bond Payments to Be Held in Trust.
If the Depositor shall at any time act as its own Paying Agent, it
will, on or before each Payment Date, Redemption Date or Special Redemption Date
for a Series of Bonds, segregate and hold in trust for the benefit of the Person
entitled thereto a sum sufficient to pay the principal or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Depositor shall have one or more Paying Agents, the
Trustee will, on or before each Payment Date, Redemption Date or Special
Redemption Date for a Series of Bonds, deposit with such Paying Agent cash,
Certificates of Deposit or a Letter of Credit in an amount sufficient to pay the
principal or interest so becoming due (to the extent funds are then available
for such purposes), such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Depositor will promptly notify the Trustee of its action or failure
so to act.
The Depositor will cause each Paying Agent, other than the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal
of or interest on the Bonds 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;
(2) give the Trustee notice of any Default by the
Depositor (or any other obligor upon the Bonds) in the making of any
payment of principal or interest; and
(3) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Depositor may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Depositor Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Depositor or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Depositor or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Depositor, in trust for the payment of the principal of or interest on
any Bond and remaining unclaimed for [______] years after such principal or
interest has become due and payable to the Holder of such Bond (or if earlier,
[____ months] before the date on which such amount would escheat to a
governmental entity under applicable law) shall be discharged from such trust
and paid to the Depositor; and the Holder of such Bond shall thereafter, as an
unsecured general creditor, look only to the Depositor for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money (but only to the extent of the amounts so paid to the Depositor), and all
liability of the Depositor as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such release of payment, may at the expense of the Depositor cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York
and in the city in which the Corporate Trust Office is located, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than [___ days] from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Depositor. The
Trustee may adopt and employ, at the expense of the Depositor, any reasonable
means of notification of such release of payment
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(including, but not limited to, mailing notice of such release to Holders whose
Bonds have been called but have not been surrendered for redemption or whose
right to or interest in monies due and payable but not claimed is determinable
from the records of the Trustee or any Paying Agent, at the last address of
record of each such Holder).
Section 9.04. Corporate Existence.
The Depositor will keep in full effect its existence, rights and
franchises as a corporation under the laws of the State of Delaware (unless it
becomes incorporated under the laws of any other state or the United States of
America in which case the Depositor will keep in full effect its existence,
rights and franchises as a corporation under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Indenture and
the Bonds.
Section 9.05. Protection of Trust Estate.
(a) The Depositor will from time to time execute and deliver all
such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action as the Trustee deems necessary or advisable to:
(i) grant more effectively all or any portion of the
Trust Estate for a Series;
(ii) maintain or preserve the lien (and the priority
thereof) of this Indenture or to carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of, or protect the validity
of any Grant made or to be made by this Indenture;
(iv) enforce any of the Loan Documents, GNMA Certificates,
▇▇▇▇▇▇▇ Mac Certificates, ▇▇▇▇▇▇ Mae Certificates or Other Mortgage
Certificates; or
(v) preserve and defend title to the Trust Estate
securing a Series and the rights therein of the Trustee and the Holders
of Bonds of such Series secured thereby against the claims of all
persons and parties.
(b) The Trustee shall not remove any portion of the Trust Estate
that consists of money or is evidenced by an instrument, certificate or other
writing from the jurisdiction in which it was held at the date of the most
recent Opinion of Counsel delivered pursuant to Section 9.06 (or from the
jurisdiction in which it was held, or to which it is intended to be removed, as
described in the Opinion of Counsel delivered at the Closing Date pursuant to
the Series Supplement, if no Opinion of Counsel has yet been delivered pursuant
to Section 9.06) or cause or permit ownership or the pledge of any portion of
the Trust Estate that consists of book-entry securities to be recorded on the
books of a Person located in a different jurisdiction from the jurisdiction in
which such ownership or pledge was recorded at such time unless the Trustee
shall have first received an Opinion of Counsel to the effect that the lien and
security interest created by this Indenture with respect to such property will
continue to be maintained after giving effect to such action or actions.
(c) The Depositor hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Trustee pursuant to this Section 9.05.
(d) The Depositor shall pay or cause to be paid any taxes levied
on the account of the beneficial ownership by the Depositor or an Affiliate of
the Depositor of Mortgage Collateral that secures a Series of Bonds.
Section 9.06. Opinions as to Trust Estate.
(a) The Depositor shall deliver to the Trustee, by the [first day
of the fifth month] following the Delivery Date for each Series, one of the
following: (i) an Opinion of Counsel reasonably satisfactory in form and
substance to the Trustee stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto and any other requisite document
as is necessary to
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make effective the lien and security interest of this Indenture with respect to
the Trust Estate for such Series and reciting the details of such action; or
(ii) an Opinion of Counsel stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective; or (iii)
with respect to each Mortgage Loan pledged to secure a Series, a certificate of
the Depositor in a form acceptable to the Trustee (a "Certificate of
Nonrecordation") to the effect that (A) the Trustee has received all scheduled
payments of principal and interest on such Mortgage Loan, and (B) recordation of
the Trustee's interest in such Mortgage Loan is not yet practicable because the
applicable local recording office has been unable to provide the Master Servicer
or the Depositor with all the information necessary to record the assignment of
the Mortgage Loan to the Trustee, or because of another administrative matter
beyond the reasonable control of the Master Servicer or the Depositor.
With respect to each Mortgage Loan as to which the Depositor delivers a
Certificate of Nonrecordation, the Depositor shall, by the first day of the
following month, deliver an Opinion of Counsel meeting the requirements of
either of clauses (i) or (ii) above or another Certificate of Nonrecordation.
With respect to each Mortgage Loan pledged to secure a Series, the
Depositor shall, by the [first day of the twelfth month] following the Delivery
Date for such Series, deliver an Opinion of Counsel meeting the requirements of
either of clauses (i) or (ii) above or require the Master Servicer to withdraw
such Mortgage Loan from the lien of this Indenture pursuant to Section 12.11.
(b) On or before [______] of each calendar year (commencing in the
year following the Delivery Date for a Series) the Depositor shall furnish to
the Trustee an Opinion of Counsel meeting the requirements of either of clauses
(i) or (ii) of subsection (a) above (except with respect to any Mortgage Loan as
to which a Certificate of Nonrecordation has been delivered by the Depositor by
the first day of June). Such Opinion of Counsel shall include a description of
any recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents that will, in
the opinion of such counsel, be required to maintain the lien and security
interest of this Indenture with respect to the Trust Estate for such Series
until [_____] of the following calendar year.
Section 9.07. Performance of Obligations; Servicing Agreement.
(a) The Depositor shall punctually perform and observe all of its
obligations under this Indenture and the Servicing Agreement with respect to
each Series.
(b) The Depositor shall 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 covenants or obligations under any of the Loan
Documents or under any instrument included in the Trust Estate for a Series, or
that would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any of the Loan
Documents or any such instrument with respect to such Series, except as
expressly permitted in this Indenture, the Servicing Agreement or such Loan
Document for such Series or other instrument or unless such action will not
adversely affect the interests of the Holders of the Bonds of such Series.
(c) If the Depositor shall have knowledge of the occurrence of a
default under the Servicing Agreement, the Depositor shall promptly notify the
Trustee and the Rating Agencies thereof, and shall specify in such notice the
action, if any, the Depositor is taking with respect to such default.
(d) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, the Trustee shall promptly notify the
Rating Agencies. As soon as any successor Servicer is appointed, the Trustee
shall notify the Rating Agencies, specifying in such notice the name and address
of such successor Servicer.
Section 9.08. Negative Covenants.
(a) The Depositor will not:
(1) sell, transfer, exchange or otherwise dispose of any
part of the Trust Estate for a Series except as expressly permitted by
this Indenture or a related Series Supplement; or
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(2) claim any credit on, or make any deduction from, the
principal, premium, if any, or interest payable in respect of the Bonds
of a Series by reason of the payment of any taxes levied or assessed
upon any portion of the Trust Estate for such Series.
(b) Notwithstanding paragraph (a) hereof, the Depositor may sell,
transfer, exchange or otherwise dispose of its interest in the Mortgage
Collateral securing any Series of Bonds to a Limited Purpose Entity provided
that:
(1) all right, title and interest so transferred shall be
subject and subordinate to the rights of the Holders of the Series of
Bonds secured by such Mortgage Collateral;
(2) the transferee agrees in writing that, with respect
to the Mortgage Collateral in which it has acquired an interest from
the Depositor, it will assume the Depositor's obligations pursuant to
Section 9.05 of the Indenture and will designate the Trustee as it
agent and attorney-in-fact for the execution of any financing
statement, continuation statement, or other instrument required by the
Trustee pursuant to Section 9.05; and
(3) the transferee agrees in writing that it will not
subsequently transfer its interest in the Mortgage Collateral pledged
to secure a Series of Bonds, except in accordance with this Section
9.08.
(c) Notwithstanding paragraph (a) hereof or any other provision of
this Indenture, the Depositor may pledge its interest in the Collateral securing
any Series of Bonds to secure another Series of Bonds if:
(1) such pledge is permitted by the terms of the
Supplemental Indenture creating the earlier Series of Bonds; and
(2) each Rating Agency rating the earlier Series of Bonds
confirms in a writing delivered to the Trustee that such subsequent
pledge will not result in the withdrawal or downgrading of the rating
it assigns to any Outstanding Series of Bonds.
Section 9.09. Statement as to Compliance.
The Depositor will deliver to the Trustee, [within ___ days after the
end of each fiscal year of the Depositor (commencing with the fiscal year ending
on _____________),] a written statement signed by the Chairman or the President
or a Vice President and by any other Officer of the Depositor, stating, as to
each signer thereof, that:
(1) a review of the fulfillment of the Depositor during
such year and of its obligations under this Indenture has been made
under such Officer's supervision; and
(2) to the best of such Officer's knowledge, based on
such review, the Depositor complied with all conditions and covenants
under this Indenture throughout such year, or if there has been a
Default in the fulfillment of any such covenant or condition,
specifying each such Default known to such Officer and the nature and
status thereof.
Section 9.10. Depositor May Consolidate, Etc., Only on Certain Terms.
The Depositor shall not consolidate or merge with or into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person unless:
(1) the Person (if other than the Depositor) formed by or
surviving such consolidation or merger or that acquires by conveyance
or transfer the properties and assets of the Depositor substantially as
an entirety shall be a Limited Purpose Entity and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and interest on all Bonds and the
performance of every covenant of this Indenture on the part of the
Depositor to be performed or observed;
(2) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
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(3) the Depositor shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent in
this Article provided for relating to such transaction have been
complied with;
(4) each Rating Agency has confirmed in writing that such
merger, consolidation or transfer will not result in the withdrawal or
downgrading of the rating on the Bonds;
(5) the interest that the transferee acquires in any
properties or assets that are pledged to secure the Bonds shall
expressly be made subject and subordinate to the rights of the
Bondholders and the Trustee; and
(6) the Trustee shall have received on the date of the
transfer an agreement of the transferee to provide on or before [mm/dd]
of each subsequent year a certificate confirming its continued
qualification as a Limited Purpose Entity and its continued compliance
with the provisions of Section 9.04 hereof.
Section 9.11. Successor Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Depositor substantially as an entirety in
accordance with Section 9.10, the Person formed by or surviving such
consolidation or merger (if other than the Depositor) or the Person to which
such conveyance or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Depositor under this Indenture
with the same effect as if such Person had been named as the Depositor herein.
In the event of any such conveyance or transfer, the Person named as the
"Depositor" in the first paragraph of this instrument or any successor that
shall theretofore have become such in the manner prescribed in this Article may
be dissolved, wound-up and liquidated at any time thereafter, and such Person
thereafter shall be released from its liabilities as obligor and maker on all
the Bonds and from its obligations under this Indenture.
Section 9.12. No Other Business.
The Depositor shall not engage in any business or activity other than
in connection with or relating to the issuance of (a) Bonds pursuant to this
Indenture or any Series Supplement, the issuance of which will not, at the time
of their issuance, result in the lowering of the then rating of the Outstanding
Bonds of any Series by any Rating Agency rating such Series, (b) other bonds
pursuant to any indenture other than this Indenture secured principally by
mortgage collateral [(which may include mortgage loans, GNMA Certificates,
▇▇▇▇▇▇▇ Mac Certificates, ▇▇▇▇▇▇ Mae Certificates, Other Mortgage Certificates,
or other interests in mortgage loans and, to the extent that any such mortgage
collateral represents an interest in or is secured by mortgage loans, such
mortgage loans)] or (c) the establishment of trusts to acquire, own, hold, sell,
and otherwise deal in or with mortgage collateral; provided, however, that if
such other bonds have a rating lower than the lowest rating of any Outstanding
Bonds of any Series, such lower rating will not, at the time of the issuance of
such bonds, result in the lowering of the then rating of the Outstanding Bonds
of any Series by any Rating Agency rating any Series of Bonds issued pursuant to
this Indenture.
Section 9.13. Limitation on Borrowing.
Except as contemplated by Section 9.12 hereof, the Depositor shall not
incur, assume or guarantee any indebtedness of any Person, except for
indebtedness that: (i) by its terms is completely subordinated to indebtedness
of the Depositor; (ii) is non-recourse other than with respect to proceeds in
excess of the proceeds necessary to pay the Bonds of any Series; (iii) does not
constitute a claim against the Depositor to the extent that such excess proceeds
are insufficient to pay such debt; (iv) by its terms provides that the holder
thereof may not cause the filing of a petition in bankruptcy or take any similar
action against the Depositor until at least [___ days] after all indebtedness
represented by each Outstanding Bond is paid in full; and (v) will not adversely
affect or result in a withdrawal of the rating of the Bonds by any Rating
Agency.
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Section 9.14. Substitution of Insurance Policies, Etc.; Notification of
Rating Agencies.
(a) Provided that the conditions set forth in paragraph (b) hereof
have been satisfied, the Depositor may substitute a replacement policy or
instrument for any Bond Insurance, Mortgagor Bankruptcy Fund or Mortgagor
Bankruptcy Bond, Primary Mortgage Insurance Policy, Pool Insurance Policy,
Special Hazard Insurance Policy or Special Hazard Fund or a surety bond or
Letter of Credit pledged to secure any one or more Series of Bonds.
(b) The Depositor shall notify each Rating Agency rating the Bonds
of a Series in the event that any replacement policy or instrument is obtained
for any Bond Insurance, Mortgagor Bankruptcy Fund or Bond, Primary Mortgage
Insurance Policy, Pool Insurance Policy, Special Hazard Insurance Policy or Fund
or surety bond or Letter of Credit with respect to such Series from an Insurer
or other Person other than the Person who issued such policy or instrument;
provided, however, that the Trustee shall not be required to accept any such
replacement policy or instrument unless the Trustee has received from each
Rating Agency rating such Bonds a written instrument to the effect that such
acceptance by the Trustee will not result in the lowering of the then applicable
rating of any Bonds issued pursuant to this Indenture by such Rating Agency.
(c) Provided the conditions set forth in paragraph (d) hereof have
been satisfied, in substitution for any Bond Insurance, Mortgagor Bankruptcy
Fund or Bond, Primary Mortgage Insurance Policy, Pool Insurance Policy, Special
Hazard Insurance Policy or Fund, surety bond, letter of credit, and/or other
policy, instrument, or other credit enhancement securing Mortgage Loans pledged
to secure a Series of Bonds, the Depositor may pledge one or more ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac Certificates representing interests in such Mortgage Loans, provided
the pass-through interest rate on each such ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
Certificate is not less than the weighted average Net Rate of the Mortgage Loans
in which such Mortgage Certificate represents an interest. For this purpose, the
Net Rate of a Mortgage Loan will equal the per annum interest rate available to
make payments on the Bonds secured by such Mortgage Loan (i.e., such Mortgage
Loan's Note Rate less servicing and credit enhancement costs).
(d) To effect any substitution of credit enhancement pursuant to
paragraph (c) above, the Trustee shall transfer the Mortgage Loans to ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac (subject to the Trustee (or its assignee) being named as the
registered holder of the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac Certificates to be issued
representing interests in such Mortgage Loans) upon delivery by the Depositor to
the Trustee of the following:
(1) cash or Letter of Credit in an amount equal to the
aggregate Outstanding Mortgage Loan Amount of the Mortgage Loans being
transferred to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, which may be used to make any
payments of principal and interest on the Bonds pertaining to such
Mortgage Loans while the Mortgage Loans are held by ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(2) an Depositor Request identifying (i) the Mortgage
Loans subject to the substitution of credit enhancement and (ii) the
issue date, maturity, principal balance and pass-through interest rate
of the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac Certificates to be issued with respect
to those Mortgage Loans; and
(3) an Opinion of Counsel to the effect that, upon the
Trustee's receipt of the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac Certificates, the
Trustee will have a first-priority, perfected security interest in the
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac Certificates.
To the extent that the Depositor substitutes ▇▇▇▇▇▇▇ Mac Certificates
for any credit enhancement as provided above, the Depositor will deposit cash
equal to one month's interest on such ▇▇▇▇▇▇▇ Mac Certificates. In addition, the
one month delay and the terms of ▇▇▇▇▇▇▇ Mac's guarantee with respect to ▇▇▇▇▇▇▇
Mac Certificates shall not be construed as any change in the payment terms with
respect to such Series of Bonds.
Section 9.15. Notice of Events of Default.
The Depositor shall give the Trustee and the Rating Agencies prompt
written notice of each Event of Default hereunder, each default on the part of
the Servicer of its obligations under the Servicing Agreement [and each default
on the part of the Mortgage Loan Seller of its obligations under the Mortgage
Loan Sale Agreement.]
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Section 9.16. Investment Company Act.
The Depositor shall at all times conduct its operations so as not to be
subject to, or shall comply with, the requirements of the Investment Company Act
of 1940, as amended (or any successor statute), and the rules and regulations
thereunder.
Section 9.17. Treatment of Bonds as Debt for Tax Purposes.
The Depositor shall treat the Bonds as indebtedness for all federal and
state tax purposes.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Bondholders.
Without the consent of the Holders of any Bonds of any Series, the
Depositor and the Trustee, at any time and from time to time, may enter into one
or more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject to the lien
of this Indenture additional property; or
(2) to add to the conditions, limitations and
restrictions on the authorized amount, terms and purposes of issue,
authentication and delivery of any Series of Bonds; or
(3) to set forth the terms of, and security for, any
Series that has not theretofore been authorized by a Series Supplement;
or
(4) to amend any provision of this Indenture in
connection with the creation of any Series or Class but only with
respect to a Series or Class that has not theretofore been authorized
by a Series Supplement and only insofar as any such amendment does not
adversely affect any Outstanding Series or Class; or
(5) to evidence the succession of another Person to the
Depositor to the extent permitted herein, and the assumption by any
such successor of the covenants of the Depositor herein and in the
Bonds contained; or
(6) to add to the covenants of the Depositor or the
Trustee, for the benefit of the Holders of all Bonds or the Bonds of
any Series, or to surrender any right or power herein conferred upon
the Depositor; or
(7) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or
(8) to cure any ambiguity, to amend, correct or
supplement any provision herein or in any supplemental indenture that
may be defective, ineffective or inconsistent with any other provision
herein or in any supplemental indenture, or amend any other provisions
with respect to matters or questions arising under this Indenture;
provided that such action shall not adversely affect the interests of
the Holders of the Outstanding Bonds of any Series or Class; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one or
more Series of Bonds 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 Section 7.11 or 7.12 hereof; or
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(10) 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 or to conform the provisions of this
Indenture to the TIA, as amended from time to time, and to add to this
Indenture such other provisions as may be expressly required by the
TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise except to the extent required by law.
The Trustee may in its discretion determine whether or not the rights
of the Holder of Bonds of a particular Series would be adversely affected by any
supplemental indenture and any such determination shall be conclusive upon the
Holders of all Bonds, whether theretofore or thereafter authenticated and
delivered hereunder. In making such determination, a supplemental indenture
shall be conclusively deemed by the Trustee not to adversely affect a particular
Series if (i) the Trustee receives a letter or other writing from each Rating
Agency rating the Series to the effect that execution of the supplemental
indenture will not result in any change in the current rating assigned by that
Rating Agency to the Series and (ii) the supplemental indenture effects no
change in principal priority schedules, interest rates, Redemption and Special
Redemption prices, substitution of Mortgage Collateral, Payment Dates, Record
Dates, Accounting Dates, terms of Optional and Special Redemption, the
application of Surplus to the payment of the Series or other payment terms
established by the Series Supplement for the Series. The Trustee shall not be
liable for any such determination made in good faith.
Section 10.02. Supplemental Indentures With Consent of Bondholders.
With the consent of the Holders of not less than [66 2/3%] of the
principal balance of the Outstanding Bonds of each Series to be affected, by Act
of said Holders delivered to the Depositor and the Trustee, the Depositor and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture relating to such Series or
of modifying in any manner the rights of the Holders of the Bonds of such Series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder or Beneficial Owner of each Outstanding
Bond as evidenced by the Bond Register and the records of the Clearing Agency
and Clearing Agency Participants affected thereby:
(1) change the Stated Maturity of the principal of, or
the timing of any installment of principal or interest on, any Bond,
reduce the principal amount thereof or the Bond Interest Rate thereon
or the Redemption Price or time for redemption with respect thereto,
change the provisions of this Indenture and the related Series
Supplement relating to the application of proceeds of the Trust Estate
to the payment of principal of Bonds, change any place where, or the
coin or currency in which, any Bond or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Maturity thereof (or, in the case of
redemption, on or after the applicable Redemption Date or Special
Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Bonds of any Series, the consent of the Holders of which is
required for the execution of 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; or
(3) impair or adversely affect the Trust Estate for a
Series except as otherwise permitted herein; or
(4) 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
a Trust Estate or terminate the lien of this Indenture on any property
at any time subject hereto or deprive the Holder of any Bond of the
security afforded by the lien of this Indenture; or
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(5) change any of the conditions precedent for the
redemption of any Series of Bonds under this Indenture or any Series
Supplement; or
(6) modify any of the provisions of this Section 6.14,
Section 6.15, or Section 6.16, except to increase any such percentage
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder or Beneficial
Owner of each Outstanding Bond as evidenced by the Bond Register and
the records of the Clearing Agency and Clearing Agency Participants
affected thereby.
The Trustee may in its discretion determine whether or not any Bonds of
a particular Series would be affected by any supplemental indenture, and any
such determination shall be conclusive upon the Holders and Beneficial Owners of
all Bonds of such Series, whether theretofore or thereafter authenticated and
delivered hereunder. The Trustee shall not be liable for any such determination
made in good faith.
It shall not be necessary for any Act of Bondholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Depositor and the Trustee of any
supplemental indenture pursuant to this Section 10.02, the Depositor shall mail
to the Holders of the Bonds as their names appear on the Bond Register to which
such supplemental indenture relates, a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Depositor to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 10.03. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
The Depositor shall cause executed copies of any supplemental indentures to be
delivered to the Rating Agencies.
Section 10.04. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes with respect to
any affected Series; and every Holder of Bonds of any Series theretofore or
thereafter authenticated and delivered hereunder and affected by such
supplemental indenture shall be bound thereby.
Section 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
Section 10.06. Reference in Bonds to Supplemental Indentures.
Bonds authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Trustee shall, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Depositor shall so
determine, new Bonds so modified as to conform, in the opinion of the Trustee
and the Depositor, to any such supplemental indenture that relates to the Series
of which such Bonds are a part may be prepared and executed by the Depositor and
authenticated and delivered by the Trustee in exchange for Outstanding Bonds of
such Series.
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ARTICLE ELEVEN
REDEMPTION OF BONDS
Section 11.01. Redemption at the Option of the Depositor; Election to Redeem.
The Bonds of any Class of a Series shall be redeemable at the option of
the Depositor, in whole or in part, on a pro rata or random lot basis as
permitted by the related Series Supplement, at the Redemption Price specified in
such Series Supplement (exclusive of installments of interest and principal
maturing on or prior to such date payment of which shall have been made or duly
provided for to the Holders of the Bonds on relevant Record Dates or as
otherwise provided in this Indenture and such Supplement).
Installments of interest and principal due on or prior to a Redemption
Date shall continue to be payable to the Holders of such Bonds of such Series as
of the relevant Record Dates according to their terms and the provisions of
Section 3.07. The election of the Depositor to redeem any Bonds of such Series
pursuant to this Section 11.01 shall be evidenced by an Depositor Order
directing the Trustee to make the payment of the Redemption Price of all of the
Bonds to be redeemed from funds in the Collateral Proceeds Account, the Reserve
Fund, other funds and/or monies deposited with the Trustee by the Depositor
pursuant to Section 11.05; provided, however, that funds shall be withdrawn from
the Reserve Fund in order to effect such redemption only if the Trustee shall
have received an Accountants' Certificate to the effect that the balances
remaining in such funds are adequate after giving effect to the redemption.
The Depositor shall set the Redemption Date and the Redemption Record
Date and give notice thereof to the Trustee pursuant to Section 11.03.
Section 11.02. [Reserved].
Section 11.03. Notice to Trustee.
Unless otherwise specified in the related Series Supplement, in case of
any redemption pursuant to Section 11.01, the Depositor shall, at least [___
days] prior to the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the expected principal amount of any Bonds to be redeemed on such Redemption
Date.
Section 11.04. Notice of Redemption by the Depositor.
Notice of redemption shall be given by the Trustee in the name of and
at the expense of the Depositor by first-class mail, postage prepaid, mailed not
less than [___ days] prior to the applicable Redemption Date to each Holder of
Bonds of the affected Series at his address in the Bond Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price at which the Bonds of such
Series will be redeemed;
(3) that on a Redemption Date, if Bonds of a Class of
such Series are to be paid in full, the fact of such payment in full
and that interest thereon shall cease to accrue on the date specified
on the notice;
(4) if such payment is the final payment on such Bond of
such Series; and
(5) the place where such Bonds of such Series are to be
surrendered for payment of the Redemption Price if such Bonds of such
Series are to be paid in full, which shall be the office or agency of
the Depositor to be maintained as provided in Section 9.02.
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Notice of redemption of Bonds of a Series shall be given by the
Depositor or, at the Depositor's request, by the Trustee in the name and at the
expense of the Depositor. Failure to give notice of redemption, or any defect
therein, to any Holder of any Bond of a Series selected for redemption shall not
impair or affect the validity of the redemption of any other Bond of such
Series.
Section 11.05. Deposit of Redemption Price for Optional Redemptions.
In the case of all redemptions, on or before the Business Day next
preceding the giving of notice of redemption as provided in Section 11.04, the
Depositor shall deposit with the Trustee cash, Certificates of Deposit or a
Letter of Credit in an amount sufficient to provide for payment of the
Redemption Price of all of the Bonds of the affected Series that are to be
redeemed on such Redemption Date (unless such payment is to be made from the
Collateral Proceeds Account or the Reserve Fund for such Series).
Section 11.06. Bonds Payable on Redemption Date.
Notice of redemption having been given as provided in Section 11.04,
the Bonds of a Series or portions thereof so to be redeemed shall, on the
applicable Redemption Date, become due and payable at the Redemption Price, and
on such Redemption Date (unless the Depositor shall Default in the payment of
the Redemption Price) such Bonds, shall cease to bear interest as specified in
the related Series Supplement. On or after the Redemption Date, such Bonds shall
be paid by the Depositor at the Redemption Price; provided, however, that
payments due on a Payment Date on or prior to the Redemption Date shall be
payable to the Holders of such Bonds registered as such on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Bond called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the applicable Bond Interest Rate.
ARTICLE TWELVE
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 12.01. Collection of Money.
Except as otherwise expressly provided herein, the Trustee may demand
payment or delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all money
and other property payable to or receivable by the Trustee pursuant to this
Indenture, including all payments due on the Mortgage Collateral securing a
Series in accordance with the terms and conditions of such Mortgage Collateral.
The Trustee shall hold all such money and property received by it in trust for
the Holders of the Bonds of the related Series and shall apply it as provided in
this Indenture and the related Series Supplement. Except as otherwise expressly
provided in this Indenture, if any Default occurs in the making of any payment
or performance under the Servicing Agreement, the Insurance Policies or any
Mortgage Collateral securing a Series, the Trustee may, and upon the request of
the Holders of a majority in principal balance of the Outstanding Bonds (as
evidenced by the Bond Register and the records of the Clearing Agency and
Clearing Agency Participants) of such Series shall, take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. In the event that the Trustee has
not received timely payment on the Mortgage Certificates securing a Series, the
Trustee shall immediately notify GNMA, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or other
appropriate Person or such other Persons designated by any of them, as the case
may be, of the failure to receive such payment. The Trustee shall request that
GNMA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or other appropriate Person wire such payments in
immediately available funds to the Trustee, or take such other action as the
Trustee shall designate in accordance with (a) the procedures of GNMA, ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ Mac or other appropriate Person then in effect and (b) any
agreements made with the Depositor. Any such action shall be without prejudice
to any right to claim a Default or Event of Default under this Indenture and to
proceed thereafter as provided in Article Six.
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Section 12.02. [Reserved].
Section 12.03. [Reserved].
Section 12.04. Reserve Fund.
(a) All monies received by the Trustee pursuant to Section 4.02(6) with
respect to a Series, together with any Eligible Investments in which such monies
are or will be invested or reinvested during the term of this Indenture, and any
income or other gain realized from such investment shall be held by the Trustee
in the Reserve Fund as part of the Trust Estate as security for such Series
subject to disbursement and withdrawal as herein provided. Monies shall be
subject to withdrawal pursuant to Subsection (d) of this Section 12.04.
(b) Upon Depositor Order all or a portion of the Reserve Fund for a
Series shall be invested and reinvested at the Depositor's direction in one or
more Eligible Investments. All income or other gain from such investments shall
be credited to such Reserve Fund, and any loss resulting from such investments
shall be charged to such Reserve Fund.
(c) If any amounts invested as provided in Section 12.04(b) shall be
needed for disbursement from the Reserve Fund for a Series as set forth in
Section 12.04(d), the Trustee shall cause a sufficient amount of such
investments of such Reserve Fund to be sold or otherwise converted to cash to
the credit of such Reserve Fund. The Trustee shall not in any way be held liable
by reason of the inability of the Trustee to make any required payment from such
Reserve Fund because of any insufficiency of such Reserve Fund either resulting
from any loss of investment in any Eligible Investment or resulting from
disbursements made pursuant to Section 12.04(d).
(d) Disbursements from the Reserve Fund for a Series shall be made, to
the extent funds therefor are available, pursuant to instructions contained in
the Monthly Remittance Reports prepared in accordance with Section 12.09.
Section 12.05. Collateral Proceeds Account.
The Trustee shall, prior to the Delivery Date of the Bonds of a Series,
establish the Collateral Proceeds Account for such Series into which the Trustee
shall from time to time deposit all Collateral Proceeds relating to such Series
(including any proceeds from any deposits to be made by the Master Servicer
pursuant to the Servicing Agreement, with respect to such Series and including
any proceeds from any Insurance Policies for such Series) and all proceeds
transferred from the Reserve Fund or other funds pledged with respect to such
Series; provided, however, that all amounts as provided by Section 4.02(12)
shall be deposited in such Collateral Proceeds Account on the Delivery Date. All
monies deposited on a daily basis in the Collateral Proceeds Account for a
Series pursuant to this Indenture shall be held by the Trustee as part of the
Trust Estate for such Series as herein provided.
(a) All payments to be made from time to time by the Trustee to the
Holders of Bonds of a Series out of funds in the Collateral Proceeds Account for
such Series pursuant to this Indenture shall be made by the Trustee as the
Paying Agent of the Depositor.
(b) Monies in the Collateral Proceeds Account for a Series shall be
invested and reinvested, but only in one or more Eligible Investments, by the
Trustee in such manner as the Depositor shall by Depositor Order from time to
time direct. All income or other gain from such investments shall be credited to
such Collateral Proceeds Account, and any loss resulting from such investments
shall be charged to such Collateral Proceeds Account. If any amounts invested as
aforesaid shall be needed for disbursement from the Collateral Proceeds Account
for a Series to make deposits to the Custodial Reserve Fund or to make the
payments due to Holders of Bonds of such Series and the Depositor as set forth
in the Monthly Remittance Report delivered pursuant to Section 12.09, the
Trustee shall cause a sufficient amount of such investments of such Collateral
Proceeds Account to be sold or otherwise converted to cash to the credit of such
Collateral Proceeds Account. The Trustee shall not in any way be held liable by
reason of any insufficiency in any Collateral Proceeds Account resulting from
any loss on any Eligible Investment.
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(c) Notwithstanding any other provision of this Section 12.05, the
Trustee may accept principal and interest payments on any Mortgage Collateral
prior to the Due Date thereof and distribute any earnings from the investment
thereof to such Due Date at the direction of the Depositor.
Section 12.06. Custodial Reserve Fund.
If so provided in the Series Supplement for a Series, the Trustee
shall, prior to the Delivery Date of the Bonds of a Series that is secured in
part by Mortgage Loans, establish the Custodial Reserve Fund for such Series
into which the Trustee shall deposit monthly funds withdrawn from the Collateral
Proceeds Account for such Series required to pay any insurance premiums due on
Insurance Policies securing such Series, any amounts required to be paid to the
Master Servicer pursuant to the Servicing Agreement with respect to such Series,
any amounts due to each Master Servicer of a Mortgage Loan securing such Series
under its Servicing Agreement, and any amounts required to be paid to the
Depositor as Administrative Fees with respect to such Series all in the amounts
set forth in the Monthly Remittance Report referred to in Section 12.09.
(a) Upon Depositor Order all or a portion of the Custodial Reserve Fund
for a Series shall be invested and reinvested at the Depositor's direction in
one or more Eligible Investments.
(b) Disbursements from the Custodial Reserve Fund for a Series shall be
made to the extent funds therefor are available, and the Trustee shall withdraw
from the Custodial Reserve Fund the amount, if any, set forth in any Monthly
Remittance Report referred to in Section 12.09(a) as the amount, if any,
required to be so withdrawn and at the times therein specified in order to make
the payments due to pay the premiums on the Pool Insurance Policy, the Special
Hazard Insurance Policy, the Mortgagor Bankruptcy Bond and any other surety
bonds or endorsements to Insurance Policies obtained by or on behalf of the
Depositor with respect to such Series, the Administrative Fee for such Series
and amounts due under the Servicing Agreement or any Servicing Agreement for
such Series.
(c) On each anniversary date of the Delivery Date of a Series and after
the payment of all insurance premiums, the Trustee may release upon Depositor
Request any amount remaining on deposit in the Custodial Reserve Fund for such
Series, and such amount shall thereupon be deemed not to be a part of the Trust
Estate for such Series.
Section 12.07. Surplus Account; Other Funds and Accounts.
(a) All monies received by the Trustee pursuant to Section 12.09 with
respect to a Series, together with any Eligible Investments in which such monies
are or will be invested or reinvested during the term of this Indenture, and any
income or other gain realized from such investment shall be held by the Trustee
in the Surplus Account as part of the Trust Estate as security for such Series
subject to disbursement and withdrawal as provided herein or in the related
Series Supplement. Unless otherwise provided in the Series Supplement for a
Series, monies shall be subject to withdrawal by the Depositor pursuant to
Section 13.05.
(b) Upon Depositor Order all or a portion of the Surplus Account for a
Series shall be invested and reinvested at the Depositor's direction in one or
more Eligible Investments. All income or other gain from such investments shall
be credited to such Surplus Account and any loss resulting from such investments
shall be charged to such Surplus Account.
(c) If any amounts invested as provided in Section 12.07(b) shall be
needed for disbursement from the Surplus Account for a Series as set forth in
Section 12.07(d), the Trustee shall cause a sufficient amount of such
investments of such Surplus Account to be sold or otherwise converted to cash to
the credit of such Surplus Account. The Trustee shall not in any way be held
liable by reason of the inability of the Trustee to make any required payment
from such Surplus Account because of any insufficiency of such Surplus Account
either resulting from any loss of investment in any Eligible Investment or
resulting from disbursements made pursuant to Section 12.07(d).
(d) Disbursements from the Surplus Account for a Series shall be made,
to the extent funds therefor are available, only as provided in Section 13.05 or
the Series Supplement for a Series.
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(e) To the extent provided in the Series Supplement for a Series, the
Trustee shall, prior to the Delivery Date of the Bonds of such Series, establish
other funds and accounts to secure the related Series of Bonds. Disbursements
from such other funds and accounts shall be made as provided in the Series
Supplement.
Section 12.08. Reports by Trustee.
The Trustee shall timely supply to the Depositor any information in the
Trustee's possession that the Depositor may from time to time request for a
Series with respect to the Mortgage Collateral, the Reserve Fund, the Collateral
Proceeds Account, the Custodial Reserve Funds and any other funds or surety
bonds reasonably needed to complete the Monthly Remittance Report for such
Series or to provide any other information available to the Trustee and required
to be provided by the Depositor pursuant to Section 12.09.
Section 12.09. Monthly Remittance Reports and Related Matters.
(a) Not later than the Business Day preceding each Payment Date for a
Series, the Depositor shall deliver, or cause to be delivered, to the Trustee a
report (a "Monthly Remittance Report") that shall contain the following
information with respect to that Series:
(1) the aggregate amount of interest due and payable on
each Class of Bonds on such Payment Date, the interest accrued for the
most recent Due Period on each Class of Accretion Bonds and the amount
of interest payable (or accrued) per [$1,000] initial aggregate
principal amount of Bonds of each Class on such Payment Date;
(2) the aggregate amount of principal payable on each
Class of Bonds on such Payment Date and the amount of principal payable
per [$1,000] initial aggregate principal amount of Bonds of each Class
on such Payment Date;
(3) a factor, expressed as a decimal of seven digits,
with respect to each Class of Bonds, equal to the percentage of such
Class of Bonds Outstanding on such Payment Date;
(4) the Aggregate Collateral Value of the Mortgage
Collateral as of the Payment Date;
(5) the amount of any deposit to or withdrawal from the
Surplus Account on such Payment Date;
(6) the amount of any deposit to or withdrawal from the
Reserve Fund;
(7) the amount to be released from the lien of the
Indenture from the Surplus Account on such Payment Date;
(8) the amount of the Master Servicing Fee to be paid to
the Master Servicer on such Payment Date and any other customary
information that the Master Servicer deems necessary or desirable, or
that a Bondholder reasonably requests, to enable Bondholders to prepare
their tax returns; and
(9) such additional information as is specified in the
related Series Supplement.
(b) On each Payment Date, the Trustee will transmit by mail to
Bondholders of record as of the related Record Date (including the Clearing
Agency, if any) a report setting forth, among other data, the information
contained in the Monthly Remittance Report for such Payment Date.
(c) On each Payment Date, the Trustee shall withdraw from the
Collateral Proceeds Account the amounts required to make the payments specified
in the related Monthly Remittance Report and shall make such payments or cause
the Paying Agent to make such payments in accordance with the priorities set
forth in the related Series Supplement.
(d) Not less than [five Business Days] after receiving an Depositor
Order requesting information regarding a redemption of Bonds of a Series as of a
proposed Redemption Date set forth in such Depositor Order, the Trustee
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shall provide the necessary information (to the extent it is available to the
Trustee) to the Depositor, and the Depositor shall compute the following
information:
(1) the aggregate principal amount of the Bonds as of
such Redemption Date;
(2) the amount of accrued interest due on the Bonds as of
such Redemption Date; and
(3) the amount in any fund or account available for
application to the redemption of Bonds of such Series.
(e) The Trustee shall make available at its Corporate Trust Office,
during normal business hours, for review by any Bondholder or any person
identified to the Trustee as a prospective Bondholder, originals or copies of
the following items: (a) the Indenture and any amendments thereto, (b) all
Payment Date Statements delivered to the Depositor since the Closing Date, (c)
any Officers' Certificates delivered to the Trustee since the Closing Date as
described in the Indenture and (d) any Accountants' reports delivered to the
Trustee.
(f) To the extent that the Trustee is required to provide any
information or reports pursuant to this Section 12.09 as the result of the
failure of the Depositor to provide such information or reports, the Trustee
shall be entitled to retain an independent certified public accountant in
connection therewith, and the reasonable costs incurred by the Trustee for such
independent certified public accountant shall be reimbursed pursuant to Section
7.07.
Section 12.10. Trust Estate.
(a) The 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 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 Trustee as provided in this
Article Twelve shall be bound to ascertain the Trustee's authority, inquire into
the satisfaction of any conditions precedent or see to the application of any
monies.
(b) Upon the request of the Master Servicer accompanied by an Officer's
Certificate and the other documents required by the Servicing Agreement for a
Series, to the effect that a Mortgage Loan securing such Series has been the
subject of a full prepayment or repurchase so as to become a prepaid Mortgage
Loan, the Trustee shall release such Mortgage Loan including the related Loan
Documents to the Master Servicer or its designees or assigns in accordance with
the recommendation of the Master Servicer. Upon Depositor Request accompanied by
an Officer's Certificate of the Depositor to the effect that a GNMA Certificate,
a ▇▇▇▇▇▇▇ Mac Certificate, a ▇▇▇▇▇▇ ▇▇▇ Certificate or Other Mortgage
Certificate has been the subject of a full prepayment so as to become a prepaid
GNMA Certificate, a prepaid ▇▇▇▇▇▇▇ Mac Certificate, a prepaid ▇▇▇▇▇▇ ▇▇▇
Certificate or a prepaid Other Mortgage Certificate, the Trustee shall promptly
release such GNMA Certificate, ▇▇▇▇▇▇▇ Mac Certificate, ▇▇▇▇▇▇ ▇▇▇ Certificate
or Other Mortgage Certificate to the Depositor or its designees or assigns.
(c) In any case in which a Mortgaged Premises is to be conveyed to a
Person by a borrower, and the Person is to enter into an assumption agreement or
other equivalent agreement or agreements as provided for in the Servicing
Agreement for a Series that require the signature of the Trustee, the Master
Servicer shall obtain such agreement or agreements and such other appropriate
documents and deliver them to the Trustee for signature with a letter explaining
the nature of such documents and why the Trustee's signature is required. With
such letter, the Master Servicer shall deliver an Officer's Certificate as
required by such Servicing Agreement. Upon receipt of such documents and an
Officer's Certificate, the Trustee shall execute such documents.
(d) Upon compliance with the terms of Section 3.11 relating to the
substitution of a Substitute Mortgage Certificate in exchange for an Original
Mortgage Certificate, the Trustee shall release to the Depositor or its
designees or assigns (1) the Original Mortgage Certificate, (2) all Collateral
Proceeds received by the Trustee on such Original Mortgage Certificate on the
Due Date in the month of the Subsequent Delivery Date (and to be received the
following month in the case of ▇▇▇▇▇▇▇ Mac Certificates), (3) all amounts
deposited in the Collateral Proceeds Account with the Trustee with respect to
such Original Mortgage Certificate on the Subsequent Delivery Date and (4) any
investment earnings on such Collateral Proceeds and such amounts deposited in
the Collateral Proceeds Account.
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(e) The Trustee shall, at such time as there are no Bonds Outstanding
for a Series, release the Trust Estate for such Series from the lien of this
Indenture in accordance with Article Five.
(f) The Trustee shall enter into an agreement to subordinate a Security
Instrument related to a Mortgage Loan securing a Series of Bonds to a
conservation easement or other easement created subsequent to the date of
origination of the Mortgage Loan provided that: (i) the Master Servicer shall
have consented to such subordination; (ii) the Loan-to-Value Ratio of the
Mortgage Loan following the creation of such easement will not exceed the
greater of the Loan-to-Value Ratio of the Mortgage Loan at the time of
origination; (iii) the Trustee shall have received an opinion of counsel,
acceptable to the Trustee, that, under the laws of the state in which the
related Mortgaged Premises is located, the Security Instrument held by the
Trustee will continue to represent a first lien on the Mortgaged Premises,
notwithstanding the execution of the agreement subordinating such Security
Instrument to the easement; and (iv) the Trustee shall have received an
Officer's Certificate of the Master Servicer of such Mortgage Loan certifying
that the creation of such easement will not materially and adversely affect the
marketability of title to the Mortgaged Premises.
(g) Notwithstanding anything herein to the contrary, the Depositor
shall be entitled to purchase a Defaulted Mortgage Loan upon payment to the
Trustee for deposit to the Collateral Proceeds Account of the lesser of (i) the
Unpaid Principal Balance of the Defaulted Mortgage Loan plus accrued and unpaid
interest thereon to the Payment Date following the date of the purchase and (ii)
[___%] of the Defaulted Mortgage Loan Value as determined by the Master Servicer
of such Loan or an independent party selected by the Depositor with the approval
of the Trustee. Upon receipt of the required payment, the Trustee shall release
the Defaulted Mortgage Loan including the related Loan Documents to the
Depositor.
Section 12.11. Releases of Mortgage Loans Withdrawn by Master Servicer.
(a) If the Master Servicer determines that any of the representations
or warranties of which the Depositor and the Trustee are beneficiaries with
respect to any Mortgage Loan securing a Series was materially incorrect as of
the time made, it will promptly notify the Depositor and the Trustee of the
inaccuracy. Following such notice, the Depositor and the Trustee shall take such
action as is recommended by the Master Servicer to enforce cure, repurchase or
other rights in favor of the owner of the Mortgage Loans under the terms of the
agreements pursuant to which the inaccurate representation or warranty was made.
(b) If a Security Instrument Assignment to the Trustee has not been
recorded in the manner and within the time provided in the related Servicing
Agreement or Sales Agreement, as the case may be, the Master Servicer will
promptly notify the Depositor and the Trustee of such failure. Following such
notice, the Depositor and the Trustee shall take such action as is recommended
by the Master Servicer to enforce the rights in favor of the Trustee under the
terms of the related Servicing Agreement or Sales Agreement. Any amounts
remitted to the Trustee by the Master Servicer or a Seller, as the case may be,
in escrow pursuant to the related Servicing Agreement or Sales Agreement, as the
case may be, shall be deposited into the Reserve Fund for the related Series and
shall, together with earnings thereon, (i) be released to the Master Servicer or
a Seller, as the case may be, on receipt by the Trustee of satisfactory evidence
that the Security Instrument Assignment has been recorded in the name of the
Trustee or (ii) be applied by the Trustee to redeem Bonds in the event of a
default in the payment of the principal or interest on the related Mortgage
Loan.
Section 12.12. Delivery of the Loan Documents Pursuant to Servicing
Agreement.
As is appropriate for the servicing or foreclosure of any Mortgage Loan
securing a Series, the Trustee shall deliver to the Master Servicer the Loan
Documents for such Mortgage Loan upon receipt by the Trustee on or prior to the
date such release is to be made of:
(a) such Officer's Certificate as is required by the Servicing
Agreement for such Series; and
(b) a trust receipt in the form prescribed by the Servicing Agreement
for such Series, executed by the Master Servicer, providing that the Master
Servicer will hold or retain the Loan Documents in trust for the benefit of the
Trustee and the Holders of Bonds of such Series.
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Section 12.13. Records.
In order to facilitate the servicing of the Mortgage Loans securing a
Series by the Master Servicer, the Master Servicer may retain the Records in
accordance with the provisions of the Servicing Agreement and applicable
Servicing Agreement for such Series and this Indenture. The Trustee hereby
designates the Master Servicer its agent and bailee to hold the Records pursuant
to the Servicing Agreement and applicable Servicing Agreement. By the
designation pursuant to this Section 12.13 and the acceptance of such
designation pursuant to this Section 12.13 and the acceptance of such
designation by the Master Servicer pursuant to the Servicing Agreement, the
Trustee, as a secured party, has possession of the Records for purposes of
Section 9-305 of the applicable Uniform Commercial Code.
Section 12.14. Collections on the Mortgage Loans.
In order to facilitate the servicing of the Mortgage Loans securing a
Series by the Master Servicer of such Mortgage Loans, each Master Servicer of a
Mortgage Loan securing such Series shall retain, in accordance with the
provisions of the applicable Servicing Agreement for such Series and this
Indenture, all collections on such Mortgage Loans prior to the time they are
deposited into the Collateral Proceeds Account for such Series. The Trustee
hereby designates the Master Servicer as its agent and bailee to hold such
collections on such Mortgage Loans until they are deposited into the Collateral
Proceeds Account for such Series. By the designation pursuant to this Section
12.14 and the acceptance of such designation by the Master Servicer pursuant to
its Servicing Agreement, the Trustee, as secured party, has possession of all
collections on the Mortgage Loans for purposes of Section 9-305 of the
applicable Uniform Commercial Code.
Section 12.15. Amendments to Servicing Agreements.
The Trustee may, without the consent of any Holder of a Bond of a
Series, enter into or consent to any amendment or supplement to the Servicing
Agreement with respect to such Series for the purpose of increasing the
obligations or duties of any party other than the Trustee or the Bondholders,
provided that such amendment or supplement cannot reasonably be expected to
adversely affect the Holders of Bonds of such Series. Such amendment or
supplement shall be deemed not to adversely affect the Holders of the Bonds of
such Series if there is delivered to the Trustee written notification from each
Rating Agency that rated such Series to the effect that such amendment or
supplement will not result in any change in the current rating assigned by that
Rating Agency to such Series. The Trustee may, in its discretion, decline to
enter into or consent to any such supplement or amendment if its own rights,
duties or immunities shall be adversely affected.
Section 12.16. Termination and Substitution of Servicing Agreements.
In the event of an event of default specified in Section 6.01 of the
Servicing Agreement, the Trustee may (or as otherwise provided in the Servicing
Agreement) terminate the Servicer as provided in Section 6.01 and Section 6.02
of the Servicing Agreement. If the Trustee terminates the Servicer, the Trustee
shall pursuant to Section 6.02 of the Servicing Agreement assume the duties of
the Servicer or appoint a successor servicer acceptable to the Issuer and the
Rating Agencies and meeting the requirements set forth in the Servicing
Agreement.
Section 12.17. Opinion of Counsel.
The Trustee shall be entitled to receive at least [____ Business Days]
notice of any action to be taken pursuant to Section 12.16 with respect to a
Series, accompanied by copies of any instruments involved, and the Trustee shall
also be entitled to receive an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with.
Counsel rendering any such opinion may rely without independent investigation on
the accuracy and validity of any certificate or other instrument delivered to
the Trustee in connection with any such action.
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ARTICLE THIRTEEN
APPLICATION OF MONIES
Section 13.01. Disbursements of Monies from Collateral Proceeds Account.
(a) On each Payment Date for a Series, if either no Default or Event of
Default shall have occurred and be continuing or a Default or Event of Default
shall have occurred and be continuing but the entire unpaid principal amount of
the Bonds of such Series shall not have been declared due and payable pursuant
to Section 6.02, then on such Payment Date, the Trustee shall withdraw funds
from the Collateral Proceeds Account for such Series and shall make the
disbursements described in the related Series Supplement.
(b) On each Redemption Date for a Series, the Trustee shall withdraw
from the Collateral Proceeds Account for such Series and, if appropriate, from
the Reserve Fund for such Series an amount equal to the aggregate Redemption
Price of the Bonds of such Series to be redeemed on that Redemption Date and, on
behalf of the Depositor, apply that amount to the payment of such Redemption
Price as provided in Article Eleven.
(c) On each Payment Date, the Trustee shall withdraw any excess funds
in the Reserve Fund and, as directed by the Depositor, deposit such funds in the
Surplus Account.
(d) For each Series, the Depositor shall cause to be delivered to the
Trustee within [___ days] after the Series Year Reporting Date, as specified in
the related Series Supplement, a Yearly Accountants' Certificate (i) confirming
that they have read this Indenture and the related Series Supplement, the
Monthly Remittance Report for the Payment Date next preceding the Series Year
Reporting Date and applicable information from the Trustee with respect to that
Monthly Remittance Report, (ii) specifying the procedures they have applied to
the data and the computations used in preparing that Monthly Remittance Report
and to the information received from the Trustee, (iii) indicating, based on
such procedures, the amount they have recalculated as the Aggregate Collateral
Value of the Mortgage Collateral as of the Series Year Reporting Date, (iv)
indicating the principal balance of the Bonds of each Class of such Series
Outstanding immediately after the Payment Date for which such Monthly Remittance
Report is given as reported by the Trustee, (v) indicating, based on such
procedures, the amount by which the Aggregate Collateral Value of the Collateral
securing the Series exceeds the principal balance of Bonds of such Series
Outstanding after giving effect to the payments on the Payment Date for which
the related Monthly Remittance Report is given, and (vi) confirming that, based
upon such procedures, nothing has come to their attention that leads them to
believe that the calculations within the Monthly Remittance Report have not been
performed in accordance with the provisions of this Indenture and the related
Series Supplement.
If a Yearly Accountants' Certificate delivered pursuant to Section
13.01(d) indicates that any correction should be made in the preparation of
Monthly Remittance Reports, the Depositor shall cause such correction to be made
and reflected in succeeding Reports.
Section 13.02. [Reserved].
Section 13.03. Disbursement of Monies Out of Custodial Reserve Fund.
If any Monthly Remittance Report for a Series received by the Trustee
sets forth an amount to be withdrawn from the Custodial Reserve Fund for such
Series, the Trustee shall withdraw such funds from such Custodial Reserve Fund
and timely pay the premiums due on the applicable Insurance Policy or the
amounts due to the Master Servicer as specified in such Monthly Remittance
Report.
Section 13.04. Trust Account.
All monies for a Series held by or deposited with the Trustee in any
fund or account pursuant to the provisions of this Indenture, including the
Collateral Proceeds Account, the Reserve Fund and the Custodial Reserve Fund for
such Series, and not invested in Eligible Investments as herein provided, shall
be deposited in one or more trust accounts for the benefit of the Holders of
Bonds of such Series. To the extent monies deposited in a trust
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account exceed the Federal Deposit Insurance Corporation insured amounts, such
account shall be invested in Eligible Investments.
Section 13.05. Disbursements of Excess Funds; Release of Mortgage Collateral.
As and to the extent provided in the Series Supplement of a Series or
any other Supplement related to such Series, the Trustee, at the request of the
Depositor and upon satisfaction of the conditions set forth herein, shall
withdraw Mortgage Collateral or cash to the extent of the excess, if any, of the
Aggregate Collateral Value of the Mortgage Collateral over the principal balance
of the Bonds of such Series then Outstanding.
The Depositor may deliver to the Trustee written instructions with
respect to identified Mortgage Collateral executed by the Depositor and another
Person to the effect that, following notice from the other Person, excess funds
attributable to the identified Collateral are to be disbursed to the other
Person and not to the Depositor. Such instructions may be irrevocable except
upon receipt by the Trustee of a written revocation executed by the other
Person. On receipt of notice from the other Person requesting that such excess
funds be delivered to the other Person, the Trustee shall so disburse such
excess funds rather than releasing those funds to the Depositor.
ARTICLE FOURTEEN
BONDHOLDERS' MEETINGS
Section 14.01. Purposes for Which Meetings May Be Called.
A meeting of the Holders of Bonds of any or all Series may be called at
any time and from time to time pursuant to the provisions of this Article
Fourteen for any of the following purposes:
(1) to give any notice to the Depositor or to the
Trustee, or to give any directions to the Trustee, or to consent to the
waiver of any Default hereunder and its consequences, or to take any
other action authorized to be taken by Bondholders pursuant to any of
the provisions of Article Six;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Article
Ten; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal balance
of the Bonds of any or all Series under any other provision of this
Indenture or under applicable law.
Section 14.02. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Bondholders to take any
action specified in Section 14.01, to be held at such time and at such place in
the United States of America as the Trustee shall determine. Notice of every
meeting of the Bondholders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
mailed to such Bondholders [not less than ___ nor more than ___ days] prior to
the date fixed for the meeting as provided in Section 15.05. For Book-Entry
Bonds, the Trustee shall provide an adequate number of copies of such notice in
order for the Clearing Agency and Clearing Agency Participants to provide copies
to Beneficial Owners. The Trustee may fix, in advance of the giving of such
notice, a date as the Record Date for determining the Bondholders entitled to
notice of or to vote at any such meeting not more than [___] days prior to the
date fixed for the giving of such notice.
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Section 14.03. Call of Meeting by Depositor or Bondholders.
In case at any time the Depositor, pursuant to a resolution of its
Board of Directors or the Holders of at least [___%] in aggregate principal
balance of the Bonds of any Series then Outstanding, shall have requested the
Trustee to call a meeting of Bondholders of such Series to take any action
authorized in Section 14.01 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed notice of such meeting within [_____] days after receipt of such
request, then the Depositor or the Holders of Bonds in the amount above
specified may determine the time and the place for such meeting, the record date
for determining the Bondholders entitled to notice of or to vote at such
meeting, and may call such meeting to take any action authorized in Section
14.01, by mailing notice thereof as provided in Section 14.02.
Section 14.04. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Bondholders of any or all
Series a Person shall (a) be a Holder, as of the Record Date, of one or more
Bonds of the Series with respect to which such meeting was called or (b) be a
Person appointed by an instrument in writing as proxy by a Holder, as of the
Record Date, of one or more such Bonds of the applicable Series. The only
Persons who shall be entitled to be present or to speak at any meeting of
Bondholders of any or all Series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Depositor and its counsel.
Section 14.05. Regulations May Be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Bondholders in regard to proof of the holding of Bonds and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting.
Except as otherwise permitted or required by any such regulations, the holding
of Bonds shall be proved in the manner specified in Section 15.03, and the
appointment of any proxy shall be proved in the manner specified in said Section
15.03; provided, however, that such regulations may provide that written
instruments appointing proxies regular on their face may be presumed valid and
genuine without the proof hereinabove or in said Section 15.03 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Depositor or by Bondholders as provided in Section 14.03, in which case the
Depositor or the Bondholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Bonds represented at the meeting.
At any meeting each Holder of Bonds of any Series or any proxy shall be
entitled to one vote for each [$1,000] in initial principal amount of
Outstanding Bonds held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of the principal amount of
any Bond challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Bonds held by him or by virtue of instruments in writing
as aforesaid duly designating him as the person to vote on behalf of other
Bondholders. Any meeting of Bondholders duly called pursuant to the provisions
of Section 14.02 or Section 14.03 may be adjourned from time to time, and the
meeting so adjourned may be held without further notice.
At any meeting of Bondholders of any or all Series, the presence of
Persons holding or representing Outstanding Bonds of the applicable Series in an
aggregate principal balance sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but, if
less than a quorum is present, the Persons holding or representing a majority in
aggregate principal balance of the Bonds of the applicable Series represented at
the meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present, and the meeting may be held as so
adjourned without further notice.
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Section 14.06. Manner of Voting at Meetings and Records to be Kept.
The vote upon any matter submitted to any meeting of Bondholders shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Bonds or of their representatives by proxy and the serial number or numbers
of the Bonds held or represented by them. The chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Bondholders
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 14.02. The record shall show the
serial numbers of the Bonds voting in favor of and against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Depositor and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 14.07. Exercise of Rights of Trustee and Bondholders Not to Be
Hindered or Delayed.
Nothing in this Article Fourteen shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Bondholders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Bondholders under any of the provisions of
this Indenture or of the Bonds.
ARTICLE FIFTEEN
MISCELLANEOUS
Section 15.01. Compliance Certificates and Opinions.
Upon any application or request by the Depositor to the Trustee to take
any action under any provision of this Indenture, the Depositor shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, including one furnished
pursuant to specific requirements of this Indenture relating to a particular
application or request (other than certificates provided pursuant to TIA Section
324(a)(4)) shall include and shall be deemed to include (regardless of whether
specifically stated therein) the following:
(1) a statement that each individual signing such
certificate, opinion, or letter has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion whether such
covenant or condition has been complied with; and
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(4) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 15.02. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Depositor may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate 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 Depositor, stating that the
information with respect to such factual matters is in the possession of the
Depositor, unless such counsel knows 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.
Section 15.03. Acts of Bondholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Bondholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Bondholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the
Depositor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Bondholders 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 conclusive in favor of the Trustee and the
Depositor, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Trustee deems
sufficient.
(c) The ownership of Bonds shall be proved by the Bond Register.
(d) The beneficial ownership of Book-Entry Bonds shall be proved by the
books of the Clearing Agency or Clearing Agency Participant.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Bonds shall bind the Holder (and any
transferee thereof) of every Bond 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 Trustee or the Depositor in reliance thereon, whether
or not notation of such action is made upon such Bond.
Section 15.04. Notices, Etc., to Trustee and Depositor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Bondholders or other documents provided for or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Bondholder or by the Depositor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office; or
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(2) the Depositor by the Trustee or by any Bondholder
shall be sufficient for every purpose hereunder (except as provided in
the Series Supplement for a Series) if in writing and mailed,
first-class postage prepaid, to the Depositor addressed to it at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President,
or at any other address previously furnished in writing to the Trustee
by the Depositor.
Section 15.05. Notices to Bondholders; Waiver.
Where this Indenture provides for notice to Bondholders 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
Bondholder affected by such event at his address as it appears on the Bond
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
Bondholders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Bondholder shall affect the
sufficiency of such notice with respect to other Bondholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly 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 Bondholders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In the event that, 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 Bondholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice that is satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 15.06. 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 TIA, such required provision shall control.
Section 15.07. Effect of Headings and Table of Contents.
The Article and Section headings and the Table of Contents herein are
for convenience only and shall not affect the construction hereof.
Section 15.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Depositor shall
bind its successors and assigns, whether so expressed or not.
Section 15.09. Separability.
In case any provision in this Indenture or in the Bonds 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 15.10. Benefits of Indenture.
Nothing in this Indenture or in the Bonds, express or implied, shall
give to any Person, other than the parties hereto, and their successors
hereunder, any separate trustee or co-trustee appointed under Section 7.10 and
the Bondholders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 15.11. Legal Holidays.
In the event that the date of any Payment Date shall not be a Business
Day, then notwithstanding any other provision of the Bonds or this Indenture,
payment need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
any such Payment Date,
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and no interest shall accrue for the period from and after any such nominal date
provided such payment is made in full on such next succeeding Business Day.
Section 15.12. Governing Law.
IN VIEW OF THE FACT THAT BONDHOLDERS ARE EXPECTED TO RESIDE IN MANY
STATES AND OUTSIDE THE UNITED STATES AND THE DESIRE TO ESTABLISH WITH CERTAINTY
THAT THIS INDENTURE WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF A STATE HAVING A WELL-DEVELOPED BODY OF COMMERCIAL
AND FINANCIAL LAW RELEVANT TO TRANSACTIONS OF THE TYPE CONTEMPLATED HEREIN, THIS
INDENTURE AND EACH BOND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF [NEW YORK] APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED THEREIN.
Section 15.13. Counterparts.
This instrument 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 15.14. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Depositor or of any predecessor or successor of the Depositor
with respect to the Depositor's obligations on the Bonds or under this Indenture
or any certificate or other writing delivered in connection herewith or
therewith except as otherwise expressly provided in any such certificate or
other writing.
Section 15.15. Recording of Indenture.
This Indenture is subject to recording in any appropriate public
recording offices, such recording to be effected by this Issuer and at its
expense in compliance with any Opinion of Counsel delivered pursuant to Section
2.11(c) or 3.06.
Section 15.16. No Petition.
The Trustee, by entering into this Indenture, and each Bondholder and
Beneficial Owner, by accepting a Bond, hereby covenant and agree that they will
not at any time institute against the Depositor, or join in any institution
against the Depositor 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 Bonds, this Indenture or any of the Basic Documents.
This Section 15.16 will survive for [one year AND ONE DAY] following
the termination of this Indenture.
Section 15.17. Amendments to Governing Documents.
The Trustee shall, upon Depositor Request, consent to any proposed
amendment to the Depositor's governing documents, or an amendment to or waiver
of any provision of any other document relating to the Depositor's governing
documents, such consent to be given without the necessity of obtaining the
consent of the Holders of any Bonds upon receipt by the Trustee of:
(i) an Officer's Certificate, to which such proposed
amendment or waiver shall be attached, stating that such attached copy
is a true copy of the proposed amendment or waiver and that all
conditions precedent to such consent specified in this Section 15.17
have been satisfied; and
(ii) written confirmation from the Rating Agencies that
the implementation of the proposed amendment or waiver will not
adversely affect their implied ratings of the Bonds.
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Notwithstanding the foregoing, the Trustee may decline to consent to a
proposed waiver or amendment that adversely affect its own rights, duties or
immunities under this Indenture or otherwise.
Nothing in this Section 15.17 shall be construed to require that any
Person obtain the consent of the Trustee to any amendment or waiver or any
provision of any document where the making of such amendment or the giving of
such waiver without obtaining the consent of the Trustee is not prohibited by
this Indenture or by the terms of the document that is the subject of the
proposed amendment or waiver.
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IN WITNESS WHEREOF, the Depositor and the Trustee have caused this
Indenture, dated as of ___________ 1, 20__, to be duly executed by their
respective officers thereunto duly authorized and attested, all as of the ___
day of __________, 20__.
UNION PLANTERS HOME EQUITY CORP.
By:
-----------------------------------
Attest:
-------------------------------
Assistant Secretary
-----------------------------------,
as Trustee
By:
-----------------------------------
Attest:
-------------------------------
Trust Officer
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EXHIBIT A-1
FORM OF TRUSTEE'S INITIAL CERTIFICATION
[Date]
[Name]
[Address]
[Address]
Re: Indenture, dated as of ___________ (the "Indenture"), between Union
Planters Home Equity Corp. (the "Depositor") and ____________________
as Trustee (the "Trustee").
Gentlemen:
In accordance with Section 7.15 of the Indenture, the undersigned, as
Trustee, hereby certifies that, as to each Mortgage Loan (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has reviewed
the Trustee Mortgage Loan File and has determined that, except as noted on the
Schedule of Exceptions attached hereto: (i) all documents required to be
included in the Trustee Mortgage Loan File (as set forth in the definition of
"Mortgage Loan Documents" in the Indenture) are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; and (iii) based on examination by it, and only as to such
documents, the information set forth on the schedule to the Indenture accurately
reflects the information set forth in the Trustee Mortgage Loan File. The
undersigned further certifies that the Trustee's review of each Trustee Mortgage
Loan File included each of the procedures listed in Section 7.15(a) of the
Indenture.
Except as described herein, the Trustee has not made an independent
examination of any documents contained in any Trustee Mortgage Loan File. The
Trustee makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any documents contained in any Trustee Mortgage
Loan File for any of the Mortgage Loans listed on the schedule to the Indenture,
(ii) the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan or (iii) whether any Trustee Mortgage Loan File should include any
flood insurance policy, any rider, addenda, surety or guaranty agreement, ,power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
----------------------------------,
as Trustee
By:
-----------------------------
Its:
-----------------------------
Exhibit A-1 - Page 1
78
EXHIBIT A-2
FORM OF TRUSTEE'S FINAL CERTIFICATION
[Date]
[Name]
[Address]
[Address]
Re: Indenture, dated as of ___________ (the "Indenture"), between Union
Planters Home Equity Corp. (the "Depositor") and _____________, as
Trustee (the "Trustee").
Gentlemen:
In accordance with Section 7.15 of the Indenture, the undersigned, as
Trustee, hereby certifies that, except as noted on the Schedule of Exceptions
attached hereto, for each Mortgage Loan listed in the schedule to the Indenture
(other than any Mortgage Loan paid in full or listed on the attachment hereto)
it has received a complete Trustee Mortgage Loan File which includes each of the
documents required to be included in the Trustee Mortgage Loan File as set forth
in the definition of "Mortgage Loan Documents" in the Indenture.
The Trustee has made no an independent examination of any documents
contained in any Mortgage File beyond the review specifically required in
Section 7.15 of the Indenture. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any
documents contained in any Trustee Mortgage Loan File for any of the Mortgage
Loans listed on the schedule to the Indenture, (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan or (iii)
whether any Trustee Mortgage Loan File should include any flood insurance
policy, any rider, addenda, surety or guaranty agreement, power of attorney, buy
down agreement, assumption agreement, modification agreement, written assurance
or substitution agreement.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
----------------------------------,
as Trustee
By:
-----------------------------
Its:
-----------------------------
Exhibit A-2 - Page 2