EXHIBIT 99.3
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CWABS MASTER TRUST
Issuer
and
BANK ONE, NATIONAL ASSOCIATION
______________________________
INDENTURE
Dated as of February 28, 2003
______________________________
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Table of Contents
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..................................................2
Section 1.02. Incorporation by Reference of Trust Indenture Act............2
Section 1.03. Other Terms..................................................2
Section 1.04. Rules of Construction........................................3
ARTICLE II
THE NOTES
Section 2.01. Form.........................................................4
Section 2.02. Execution, Authentication, and Delivery......................4
Section 2.03. Registration; Registration of Transfer and Exchange..........5
Section 2.04. Mutilated, Destroyed, Lost, or Stolen Notes..................6
Section 2.05. Persons Considered Owner.....................................7
Section 2.06. Payment of Principal and Interest; Defaulted Interest........7
Section 2.07. Cancellation.................................................8
Section 2.08. Book-Entry Notes.............................................9
Section 2.09. Notices To Depository........................................9
Section 2.10. Definitive Notes............................................10
Section 2.11. Tax Treatment...............................................10
Section 2.12. Transfer Restrictions; Restrictive Legends..................10
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and Interest...........................12
Section 3.02. Maintenance of Office or Agency.............................12
Section 3.03. Money For Payments To Be Held in Trust......................13
Section 3.04. Existence...................................................14
Section 3.05. Protection of the Collateral................................14
Section 3.06. Opinions About Collateral...................................15
Section 3.07. Performance of Obligations..................................16
Section 3.08. Negative Covenants..........................................17
Section 3.09. Annual Compliance Statement.................................18
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.........19
Section 3.11. Successor or Transferee.....................................19
Section 3.12. Further Instruments and Acts................................19
Section 3.13. Compliance with Laws........................................20
Section 3.14. Master Servicer as Agent and Bailee of the Indenture
Trustee.....................................................20
Section 3.15. Investment Company Act......................................20
Section 3.16. Representations.............................................20
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.....................20
Section 4.02. Application of Trust Money..................................21
Section 4.03. Subrogation and Cooperation.................................22
Section 4.04. Release of Collateral.......................................22
ARTICLE V
REMEDIES
Section 5.01. Events of Default...........................................23
Section 5.02. Acceleration of Maturity; Rescission and Annulment..........24
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee...........................................25
Section 5.04. Indenture Trustee May File Proofs of Claim..................26
Section 5.05. Remedies; Priorities........................................27
Section 5.06. Optional Preservation of the Collateral.....................28
Section 5.07. Limitation of Suits.........................................29
Section 5.08. Unconditional Right to Receive Principal and Interest.......29
Section 5.09. Restoration of Rights and Remedies..........................29
Section 5.10. Rights and Remedies Cumulative..............................30
Section 5.11. Delay or Omission Not a Waiver..............................30
Section 5.12. Control by Credit Enhancer or Noteholders...................30
Section 5.13. Waiver of Past Defaults.....................................30
Section 5.14. Undertaking For Costs.......................................31
Section 5.15. Waiver of Stay or Extension Laws............................31
Section 5.16. Rapid Amortization Events...................................31
Section 5.17. Sale of Collateral..........................................33
Section 5.18. Performance and Enforcement of Certain Obligations..........33
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.................................34
Section 6.02. Notice of Defaults..........................................35
Section 6.03. Rights of Indenture Trustee.................................35
Section 6.04. Indenture Trustee Not Responsible for Certain Things........36
Section 6.05. Individual Rights of Indenture Trustee......................37
Section 6.06. Money Held in Trust.........................................37
Section 6.07. Compensation................................................37
Section 6.08. Eligibility.................................................38
Section 6.09. Preferential Collection of Claims Against Issuer............38
Section 6.10. Replacement of Indenture Trustee............................38
Section 6.11. Acceptance of Appointment by Successor......................39
Section 6.12. Successor Indenture Trustee by Merger.......................39
Section 6.13. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.....................................................40
Section 6.14. Representations and Warranties of Indenture Trustee.........41
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Names and Addresses of Noteholders........41
Section 7.02. Preservation of Information; Communications.................42
Section 7.03. Reports of Issuer...........................................42
Section 7.04. Reports by Indenture Trustee................................42
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS, AND RELEASES
Section 8.01. Accounts....................................................44
Section 8.02. Withdrawals from the Collection Account.....................44
Section 8.03. Payments....................................................46
Section 8.04. Calculation of the Note Rate................................48
Section 8.05. Claims on the Policy; Policy Payments Account...............48
Section 8.06. Replacement Policy..........................................49
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders......50
Section 9.02. Supplemental Indentures with Consent of Noteholders.........51
Section 9.03. Execution of Supplemental Indentures........................52
Section 9.04. Effect of Supplemental Indenture............................52
Section 9.05. Reference in Notes to Supplemental Indentures...............52
Section 9.06. Tax Opinion.................................................53
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption..................................................53
Section 10.02. Form of Redemption Notice...................................54
Section 10.03. Notes Payable on Redemption Date............................54
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc...................55
Section 11.02. Form of Documents Delivered to Indenture Trustee............56
Section 11.03. Acts of Noteholders.........................................57
Section 11.04. Notices, etc................................................58
Section 11.05. Notices to Noteholders; Waiver..............................59
Section 11.06. Alternate Payment and Notice Provisions.....................59
Section 11.07. Conflict with Trust Indenture Act...........................59
Section 11.08. Effect of Headings and Table of Contents....................60
Section 11.09. Successors and Assigns......................................60
Section 11.10. Separability................................................60
Section 11.11. Benefits of Indenture.......................................60
Section 11.12. Legal Holidays..............................................60
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Section 11.13. Governing Law...............................................60
Section 11.14. Counterparts................................................60
Section 11.15. Recording of Indenture......................................61
Section 11.16. No Petition.................................................61
Section 11.17. Act on Instructions from Credit Enhancer....................61
Section 11.18. Trust Obligation............................................61
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EXHIBITS
Exhibit A - FORM OF NOTE...................................................A-1
ANNEX 1 - DEFINITIONS.................................................▇▇▇-1-1
ANNEX 2 - ADOPTION ANNEX..............................................▇▇▇-2-1
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THIS INDENTURE, dated as of February 28, 2003, between CWABS MASTER
TRUST, a Delaware statutory trust, and THE INDENTURE TRUSTEE, as indenture
trustee,
WITNESSETH THAT
Each party agrees for the benefit of the other party and for the
benefit of the Noteholders and the Credit Enhancer as follows.
GRANTING CLAUSE
The Issuer Grants to the Indenture Trustee for the series referred to
in the Adoption Annex at the Closing Date, as Indenture Trustee for the
benefit of the Noteholders and the Credit Enhancer, all of the Issuer's
interest existing now or in the future in:
o the Mortgage Loans including their Asset Balances (including all
Additional Balances) and the related Mortgage Files and all
property that secures the Mortgage Loans and all property that is
acquired by foreclosure or deed in lieu of foreclosure, and all
collections received on each Mortgage Loan after the Cut-off Date
(excluding payments due by the Cut-off Date);
o the Issuer's rights under hazard insurance policies;
o the interest of the Issuer in the Sale and Servicing Agreement
and the Purchase Agreement (including the Issuer's right to cause
Mortgage Loans to be repurchased);
o all rights under any guaranty executed in connection with the
Mortgage Loans;
o the segregated account maintained to hold collections and its
contents; and
o all present and future claims, demands, causes of action, and
choses in action regarding any of the foregoing and all payments
on and all proceeds from any of the foregoing, including all
proceeds of their conversion, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts, notes,
drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of
every kind, and other forms of obligations, instruments, and
other property that at any time constitute any part of or are
included in the proceeds of any of the foregoing (collectively,
the "Collateral").
The Notes will have the benefit of the Insurance policy issued by the
Credit Enhancer.
This Grant is made in trust to secure the payment of principal and
interest on, and any other amounts owing on, the Notes, without prejudice,
priority, or distinction, and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture.
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The foregoing Grant shall inure to the benefit of the Credit Enhancer
to the extent of draws made on the Policy and amounts owing under the
Insurance Agreement, and shall continue for the benefit of the Credit Enhancer
until all amounts owed the Credit Enhancer have been repaid in full.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders and the Credit Enhancer, acknowledges the Grant, accepts the
trusts under this Indenture in accordance with this Indenture, and agrees to
perform its duties required in this Indenture in accordance with its terms and
the terms of the Transaction Documents.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms
are used in this Indenture as defined in Annex 1.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference into this Indenture. The following TIA
terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute, or defined by Commission
rule have the meanings so assigned to them.
Section 1.03. Other Terms.
Defined terms that are used only in one section or only in another
definition may be omitted from the list of defined terms in Annex 1. Defined
terms used in this Indenture are sometimes defined after their first use
without a reference such as "(as hereinafter defined)." Defined terms include,
as appropriate, all genders and the plural as well as the singular.
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Section 1.04. Rules of Construction.
Except as otherwise expressly provided in this Indenture or unless
the context otherwise clearly requires:
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Indenture, such as "Section 6.12
(a)," refer to the designated article, section, subsection, exhibit, or other
subdivision of this Indenture as a whole and to all subdivisions of the
designated article, section, subsection, exhibit, or other subdivision. The
words "herein," "hereof," "hereto," "hereunder," and other words of similar
import refer to this Indenture as a whole and not to any particular article,
section, exhibit, or other subdivision of this Indenture.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Indenture except in the case of the TIA.
(c) Any party may execute any of the requirements under this
Indenture either directly or through others, and the right to cause something
to be done rather than doing it directly shall be implicit in every
requirement under this Indenture. Unless a provision is restricted as to time
or limited as to frequency, all provisions under this Indenture are implicitly
available and things may happen from time to time.
(d) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means
"A or B or both," not "either A or B but not both").
(e) A reference to "a thing" or "any of a thing" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any of a thing" is any and all of it. A reference to the plural
of anything as to which there could be either one or more than one does not
imply the existence of more than one (for instance, the phrase "the obligors
on a note" means "the obligor or obligors on a note"). "Until something
occurs" does not imply that it must occur, and will not be modified by the
word "unless." The word "due" and the word "payable" are each used in the
sense that the stated time for payment has past. The word indemnify is used to
include its dictionary sense of hold harmless. The word "accrued" is used in
its accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Indenture, to
the extent not completely defined,
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shall be construed in accordance with generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Indenture are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Indenture shall
control. Capitalized terms used in this Indenture without definition that are
defined in the UCC are used in this Indenture as defined in the UCC.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the word "from" or "beginning"
means "from and including," the words "to" or "until" mean "to but excluding,"
and the word "through" means "to and including." Likewise, in setting
deadlines or other periods, "by" means "on or before." The words "preceding,"
"following," and words of similar import, mean immediately preceding or
following. References to a month or a year refer to calendar months and
calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other similar
laws of general applicability relating to or affecting creditors' rights and
to general equity principles.
ARTICLE II.
THE NOTES
Section 2.01. Form.
The Notes, together with the Indenture Trustee's certificate of
authentication, shall be in substantially the form of Exhibit A, with any
appropriate insertions, omissions, substitutions, and other variations
required or permitted by this Indenture. The Notes may have any letters,
numbers, or other marks of identification and any legends or endorsements
placed on them that the officers executing them determine appropriate and that
are consistent with this Indenture, as evidenced by their execution of the
Notes. Any portion of the text of any Note may be on its reverse.
The Notes may be typewritten, printed, lithographed, or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing them, as evidenced by
their execution of them.
The terms of the Notes are part of the terms of this Indenture.
Section 2.02. Execution, Authentication, and Delivery.
(a) The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any Authorized Officer on the Notes may
be manual or facsimile. Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that they may have
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ceased to hold their offices before the authentication and delivery of
the Notes or did not hold their offices at the date of the Notes.
(b) The Indenture Trustee shall upon Issuer Order authenticate and
deliver for original issue the Notes in the amounts reflected in the Adoption
Annex. The aggregate principal amount of Notes outstanding at any time may not
exceed those amounts except as provided in Section 2.04. Each Note shall be
dated the date of its authentication. The Notes shall be issuable as
registered Notes in the minimum denomination of $25,000 and in integral
multiples of $1,000 above that.
(c) No Note shall be entitled to any benefit under this Indenture or
be a valid obligation of the Issuer for any purpose, unless a certificate of
authentication appears on it executed by the Indenture Trustee by the manual
signature of one of its authorized signatories. A certificate of
authentication on any Note shall be conclusive evidence, and the only
evidence, that it has been duly authenticated and delivered under this
Indenture.
Section 2.03. Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause a register (the "Note Register") to be
kept in which the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall be
the "Note Registrar" for registering Notes and transfers of Notes. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to, it shall assume the duties of Note
Registrar.
If the Issuer appoints a person other than the Indenture Trustee to
be Note Registrar, the Issuer will give the Indenture Trustee prompt notice of
the appointment of the Note Registrar and of the location, and any change in
the location, of the Note Register. The Indenture Trustee may inspect the Note
Register at all reasonable times and obtain copies of it. The Indenture
Trustee may rely on a certificate executed on behalf of the Note Registrar by
one of its Authorized Officers as to the names and addresses of the
Noteholders and the principal amounts and number of the Notes.
(b) Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained pursuant to Section 3.02, if
the requirements of this Indenture and Section 8-401(a) of the UCC are met,
the Issuer shall execute, and the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferees, new Notes of the same Class in any authorized
denominations, of a like aggregate principal amount.
(c) At the option of the Holder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at the office or
agency of the Issuer maintained pursuant to Section 3.02. Whenever any Notes
are so surrendered for exchange, if the requirements of Section 8-401(a) of
the UCC are met the Issuer shall execute, and the
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Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, the Notes that the Noteholder making the exchange
is entitled to receive.
(d) All Notes issued on any registration of transfer or exchange of
Notes shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
for registration of transfer or exchange.
(e) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, its Holder or any attorney for its Holder duly authorized in
writing. The endorsement signature shall be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or any other "signature guarantee program"
chosen by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act.
(f) No Holder shall incur a service charge for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
on any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.04 or 9.05 not involving any transfer.
(g) The preceding provisions of this Section notwithstanding, the
Note Registrar need not register and the Issuer need not make transfers or
exchanges of Notes selected for redemption or transfers or exchanges of any
Note during the 15 days preceding the due date for any payment on it.
Section 2.04. Mutilated, Destroyed, Lost, or Stolen Notes.
If (i) the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss, or theft of any Note and the Indenture Trustee receives
the security or indemnity it requires to hold the Issuer and the Indenture
Trustee harmless, or (ii) any mutilated Note is surrendered to the Indenture
Trustee, then, in the absence of notice to the Issuer, the Note Registrar, or
the Indenture Trustee that the Note has been acquired by a Protected
Purchaser, and if the requirements of Section 8-406 of the UCC are met and
subject to Section 8-405 of the UCC, the Issuer shall execute, and on its
request the Indenture Trustee shall authenticate and deliver, in exchange for
the Note, a replacement Note of like tenor and principal amount. If the
mutilated, destroyed, lost, or stolen Note is, or within seven days becomes,
payable, or is called for redemption, instead of issuing a replacement Note
the Issuer may pay the mutilated, destroyed, lost, or stolen Note when payable
or on its redemption date. If, after the delivery of the replacement Note or
payment of a destroyed, lost, or stolen Note pursuant to the preceding
sentence, a Protected Purchaser of the original Note in lieu of which the
replacement Note was issued presents it for payment, the Issuer and the
Indenture Trustee
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may recover the replacement Note (or the payment) from the person to
whom it was delivered or any person taking the replacement Note from the
person to whom the replacement Note was delivered or any assignee of that
person, except a Protected Purchaser, and may recover on the security or
indemnity provided for it to the extent of any expense incurred by the Issuer
or the Indenture Trustee in connection with it.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of the Note of a sum sufficient
to cover any tax or other governmental charge that may be imposed on it and
any other reasonable expenses (including the fees and expenses of the
Indenture Trustee) in connection with it.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost, or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost, or stolen Note is enforceable by anyone at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any other Notes duly issued under this Indenture.
The provisions of this Section are exclusive and shall preclude all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost, or stolen Notes.
Section 2.05. Persons Considered Owner.
Before due presentment for registration of transfer of any Note, the
Issuer, the Indenture Trustee, and any agent of the Issuer or the Indenture
Trustee may treat the person in whose name any Note is registered (as of the
day of determination) as the owner of the Note for the purpose of receiving
payments of principal and interest on the Note and for all other purposes
whatsoever, whether or not the Note is overdue. None of the Issuer, the
Indenture Trustee, or any agent of the Issuer or the Indenture Trustee shall
be affected by notice to the contrary.
Section 2.06. Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest on their Outstanding balance at
their Note Rate before and after maturity. Interest shall be payable on each
Payment Date as specified in Section 8.03 or 5.05, subject to Section 3.01.
Any installment of interest or principal payable on a Note that is punctually
paid or duly provided for by the Issuer on the applicable Payment Date shall
be paid to the person in whose name the Note (or its predecessor Note) is
registered on the Record Date by wire transfer of immediately available funds
to the account designated by the Holder at a bank or other entity having
appropriate facilities, if the Holder has so notified the Indenture Trustee in
writing at least five Business Days before the Record Date and is either the
Depository or owner of record of Notes having an aggregate principal amount of
at least $1,000,000, and otherwise by check mailed first-class postage prepaid
to the Holder's address as it appears on the Note Register on the Record Date,
or by any other
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means the Noteholder and the Indenture Trustee agree to, except for
the final installment of principal payable on the Note on a Payment Date, a
redemption date, or the Scheduled Maturity Date (and except for the redemption
price for any Note called for redemption pursuant to Section 10.01) which
shall be payable as provided below.
(b) The principal of each Note shall be payable, if not previously
paid, on the related Scheduled Maturity Date in the manner specified in
Section 8.03. All principal payments on the Notes shall be made pro rata to
the Noteholders. The Indenture Trustee shall send a notice to each person in
whose name a Note is registered at the close of business on the Record Date
preceding the Scheduled Maturity Date. The notice shall be sent by first-class
mail, postage prepaid, or by facsimile (promptly confirmed by mail) not later
than ten days before the Scheduled Maturity Date to each Holder of Notes as of
the close of business on the Record Date preceding the Scheduled Maturity
Date, at the Holder's address or facsimile number appearing in the Note
Register, and shall specify that the principal of the Note will be payable
only on presentation and surrender of the Note and shall specify the place
where the Note may be presented and surrendered for payment. Notices in
connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on the defaulted interest
to the extent lawful) at the applicable Note Rate in any lawful manner. The
Issuer may pay the defaulted interest to the persons who are Noteholders on a
subsequent special record date, which date shall be at least five Business
Days before the payment date. The Issuer shall fix the special record date and
payment date, and, at least 15 days before the special record date, the Issuer
shall mail to each Noteholder a notice that states the special record date,
the payment date, and the amount of defaulted interest to be paid.
Section 2.07. Cancellation.
All Notes surrendered for payment, registration of transfer,
exchange, or redemption shall, if surrendered to any person other than the
Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly
cancelled by the Indenture Trustee. The Issuer may at any time deliver to the
Indenture Trustee for cancellation any Notes previously authenticated and
delivered under this Indenture that the Issuer may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated instead of or in exchange
for any Notes cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless before their disposal the Issuer
directs by an Issuer Order that they be returned to it.
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Section 2.08. Book-Entry Notes.
(a) The Notes, on original issuance, will be issued by the Issuer in
the form of typewritten Notes representing the book-entry Notes, to the
Depository Trust Company, the initial Depository. The book-entry Notes shall
be registered initially on the Note Register in the name of Cede & Co., the
nominee of the initial Depository, and no Note Owner will receive a definitive
Note representing its interest in a Note, except as provided in Section 2.10.
Until definitive, fully registered Notes have been issued to the Note Owners
pursuant to Section 2.10:
(i) the provisions of this Section shall be in full force;
(ii) the Note Registrar and the Indenture Trustee may deal with the
Depository for all purposes of this Indenture (including the payment of
principal and interest on the Notes and accepting instructions under this
Indenture) as the sole holder of the Notes, and shall have no obligation
to the Note Owners;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iv) the rights of Note Owners shall be exercised only through the
Depository and shall be limited to those established by law and
agreements between the Note Owners and the Depository;
(v) until definitive Notes are issued pursuant to Section 2.10, the
Depository will make book-entry transfers among the Depository's
participants and receive and transmit payments of principal and interest
on the Notes to the Depository's participants;
(vi) whenever this Indenture requires or permits actions to be taken
based on instructions from Holders of Notes evidencing a specified
percentage of the Outstanding Amount, the Depository shall be treated as
representing that percentage only to the extent that it has received
instructions to that effect from Note Owners owning the required
percentage of the beneficial interest in the Notes and has delivered the
instructions to the Indenture Trustee; and
(vii) the Indenture Trustee may conclusively rely on information
furnished by the Depository about its participants and furnished by the
participants about indirect participating firms and persons shown on the
books of the indirect participating firms as direct or indirect Note
Owners.
(b) The book-entry Notes may not be transferred except as a whole and
then only by the Depository to its nominee or by its nominee to the Depository
or another nominee of the Depository, or by the Depository or its nominee to a
successor to the Depository or the successor's nominee.
Section 2.09. Notices To Depository.
Whenever a communication to the Noteholders is required under this
Indenture, until definitive Notes have been issued to the Note Owners pursuant
to Section 2.10, the
9
Indenture Trustee shall communicate with the Depository as Holder of
the Notes, and shall have no obligation to the Note Owners.
Section 2.10. Definitive Notes.
If
(i) the Issuer advises the Indenture Trustee in writing that
the Depository is no longer willing or able to discharge its
responsibilities properly with respect to the book-entry Notes and
the Issuer is unable to locate a qualified successor,
(ii) the Issuer at its option advises the Indenture Trustee in
writing that it elects to terminate the book-entry system through
the Depository, or
(iii) after the occurrence of an Event of Default, Note Owners
of not less than 51% of the aggregate Outstanding Amount advise the
Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the
Note Owners,
then the Depository shall notify all Note Owners and the Indenture
Trustee of the occurrence of the event and of the availability of definitive
Notes to Note Owners requesting them. Upon surrender to the Indenture Trustee
of the book-entry Notes by the Depository, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate and deliver the definitive Notes in accordance with the
instructions of the Depository. None of the Issuer, the Note Registrar, or the
Indenture Trustee shall be liable for any delay in delivery of the
instructions and may conclusively rely on, and shall be protected in relying
on, the instructions. On the issuance of definitive Notes, the Indenture
Trustee shall recognize the Holders of the definitive Notes as Noteholders.
Section 2.11. Tax Treatment.
The Issuer has entered into this Indenture, and the Notes will be
issued, with the intention that, for all purposes including federal, State,
and local income, single business, and franchise tax purposes, the Notes will
qualify as indebtedness secured by the Collateral. The Issuer, by entering
into this Indenture, and each Noteholder, by its acquisition of a Note (and
each Note Owner by its acquisition of an interest in a book-entry Note), agree
to treat the Notes for all purposes including federal, State, and local
income, single business, and franchise tax purposes as indebtedness.
Section 2.12. Transfer Restrictions; Restrictive Legends.
(a) [Deleted]
(b) No Note may be purchased with plan assets of a plan if the
issuer, the master servicer, a servicer, the indenture trustee, any
underwriter of the Notes, or any of their respective affiliates (i) has
investment or administrative discretion with respect to those plan assets;
(ii) has authority or responsibility to give, or regularly gives, investment
advice with respect to those plan assets, for a fee and pursuant to an
agreement or understanding that the
10
advice will serve as a primary basis of investment decisions with
respect to those plan assets, and will be based on the particular investment
needs for the employee plan; or (iii) unless Prohibited Transaction Class
Exemption ("PTCE") ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇ ▇▇▇▇ 95-60 applies to the investment,
is an employer maintaining or contributing to the employee plan. Each
transferee or purchaser of a Note that is a plan or is investing plan assets
shall represent (or, in the case of a book-entry Note, shall be deemed to
represent) that the investment and holding of the Note satisfy the conditions
for exemptive relief under ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇
96-23, or a similar exemption. A "plan" is an employee benefit plan (as
defined in section 3(3) of ERISA) that is subject to Title I of ERISA, a plan
(as defined in section 4975(e)(1) of the Code) and any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity or
otherwise.
(c) Unless the Indenture Trustee receives an Opinion of Counsel to
the effect that it is no longer appropriate, each definitive Note shall bear
the following legend on its face:
This Note may not be purchased with plan assets of a plan if the
issuer, the master servicer, a servicer, the indenture trustee, any
underwriter of the Notes, or any of their respective affiliates (i) has
investment or administrative discretion with respect to those plan assets;
(ii) has authority or responsibility to give, or regularly gives, investment
advice with respect to those plan assets, for a fee and pursuant to an
agreement or understanding that the advice will serve as a primary basis of
investment decisions with respect to those plan assets, and will be based on
the particular investment needs for the employee plan; or (iii) unless
Prohibited Transaction ("PTCE") ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇ ▇▇▇▇ 95-60 applies to the
investment, is an employer maintaining or contributing to the employee plan.
Each transferee or purchaser of this Note that is a plan or is investing plan
assets, by acceptance of this Note or an interest in this Note, represents
that the investment and holding of this Note satisfy the conditions for
exemptive relief under ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇
96-23, or a similar exemption. A "plan" is an employee benefit plan (as
defined in section 3(3) of ERISA) that is subject to Title I of ERISA, a plan
(as defined in section 4975(e)(1) of the Code) and any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity or
otherwise.
Any transfer in violation of either of the foregoing will be void ab
initio, and will not operate to transfer any rights to the transferee,
notwithstanding any instructions to the contrary.
(d) Each book-entry Note shall bear the following legend on its face:
"Unless this Note is presented by an authorized representative of the
Depository to the Issuer or its agent for registration of transfer, exchange,
or payment, and any Note issued in exchange for this Note is registered in the
name of the Depository or in another name requested by an authorized
representative of the
11
Depository (and any payment on this Note is made to the Depository or
to another entity requested by an authorized representative of the
Depository), any transfer, pledge, or other use of this Note for value or
otherwise by or to any person is wrongful inasmuch as the registered owner of
this Note, the Depository, has an interest in this Note."
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and Interest.
The Issuer will duly and punctually pay the principal and interest
and other amounts payable on the Notes in accordance with the terms of the
Notes and this Indenture. Amounts properly withheld under the Code or other
applicable tax laws by any person from a payment to any Noteholder of interest
or principal or other amounts shall be considered to have been paid by the
Issuer to the Noteholder for all purposes of this Indenture.
The Notes are non-recourse obligations of the Issuer and are limited
in right of payment to amounts available from the related subtrust of the
Trust. The Issuer shall not otherwise be liable for payments on the Notes.
Section 3.02. Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Notes may be surrendered for registration of
transfer or exchange, and where notices to and demands on the Issuer regarding
the Notes and this Indenture may be served. The Issuer initially appoints the
Indenture Trustee to serve as its agent for these purposes. The Indenture
Trustee will give prompt notice to the Issuer of the location, and of any
change in the location, where the Indenture Trustee maintains this office or
agency. If the Issuer ever fails to maintain the required office or agency,
then surrenders, notices, and demands may be made or served at the Corporate
Trust Office.
Section 3.03. Money For Payments To Be Held in Trust.
All payments of amounts payable on any Notes that are to be made from
amounts withdrawn from the Collection Account pursuant to Section 8.03 shall
be made on behalf of the Issuer by the Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Collection Account for payments of
Notes shall be paid over to the Issuer except as provided in this Section.
The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
the Paying Agent agrees with the Indenture Trustee that it will, and the
Indenture Trustee hereby agrees in its capacity as Paying Agent that it will:
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(i) hold all sums held by it for the payment of amounts due on
the Notes in trust for the benefit of the persons entitled to them
until they are paid to the persons entitled to them or otherwise
disposed of as provided in this Indenture, and pay them to the
persons entitled to them as provided in this Indenture;
(ii) give the Indenture Trustee and the Credit Enhancer notice
of any payment default by the Issuer on the Notes of which it has
actual knowledge;
(iii) at any time during the continuance of any payment default
on the Notes, at the request of the Indenture Trustee, immediately
pay to the Indenture Trustee all sums held in trust by it for the
payment of the Notes;
(iv) immediately resign as a Paying Agent and immediately pay
to the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent at the time of its appointment;
(v) be bound by Section 11.16; and
(vi) comply with all requirements of the Code to withhold from
any payments made by it on any Notes any applicable withholding
taxes imposed on them and comply with any applicable reporting
requirements.
To obtain the satisfaction and discharge of this Indenture or for any
other purpose, the Issuer may at any time by Issuer Order direct any Paying
Agent to pay to the Indenture Trustee all sums held by it in trust. Those sums
shall be held by the Indenture Trustee on the same trusts as those on which
the sums were held by the Paying Agent. On payment by a Paying Agent to the
Indenture Trustee, it shall be released from all further liability with
respect to that money.
Subject to applicable laws on abandoned property, any money held in
trust by the Indenture Trustee or any Paying Agent for the payment of any
amount due on any Note remaining unclaimed for two years after it has become
payable shall be discharged from the trust and be paid to the Issuer on Issuer
Request. After that the Holder of the unpaid Note shall look only to the
Issuer for its payment as an unsecured general creditor (but only to the
extent of the amounts paid to the Issuer). On its payment to the Issuer all
liability of the Indenture Trustee or the Paying Agent with respect to that
trust money shall cease. The Indenture Trustee or the Paying Agent, before
being required to make the payment to the Issuer, shall at the expense and
direction of the Issuer cause to be published once a notice that the money
remains unclaimed and that, after a date specified in the notice not less than
30 days from the date of the publication, any unclaimed balance of the money
then remaining will be repaid to the Issuer. The notice shall be published in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York. The Indenture
Trustee may also adopt and employ, at the expense and direction of the Issuer,
any other reasonable means of notification of the repayment (including mailing
notice of the repayment to their last address
13
of record to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys payable but
not claimed is determinable from the records of the Indenture Trustee or of
any Paying Agent).
Section 3.04. Existence.
The Issuer will preserve its existence, rights, and franchises as a
Delaware statutory trust (unless it or any successor becomes organized under
the laws of any other State or of the United States, in which case the Issuer
will preserve its existence, rights, and franchises under the laws of that
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which qualification to do business is
necessary to protect the validity and enforceability of this Indenture, the
Notes, the Collateral, and each other material agreement of the Issuer.
Section 3.05. Protection of the Collateral.
(a) The Issuer intends the Security Interest Granted pursuant to this
Indenture in favor of the Indenture Trustee on behalf of the Noteholders and
the Credit Enhancer to be before all other liens on the Collateral (except as
otherwise provided in the Transaction Documents). The Issuer shall take all
actions necessary to obtain and maintain, for the benefit of the Indenture
Trustee on behalf of the Noteholders and the Credit Enhancer, a first priority
perfected Security Interest in the Collateral (except as otherwise provided in
the Transaction Documents). The Issuer will execute and deliver any
supplements and amendments to this Indenture and any Financing Statements,
Continuation Statements, instruments of further assurance, and other
instruments and will take any other action appropriate to:
(i) Grant more effectively any portion of the Collateral;
(ii) preserve the Security Interest (and its priority) created
by this Indenture or carry out more effectively the purposes of this
Indenture;
(iii) perfect, publish notice of, or protect the validity of
any Grant made or to be made by this Indenture;
(iv) enforce any rights with respect to any of the Collateral;
(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee, the Credit Enhancer, and the Noteholders
in the Collateral against all adverse claims; or
(vi) pay all taxes or assessments levied or assessed on the
Collateral when due.
(b) Except as otherwise provided in this Indenture or the other
Transaction Documents, the Indenture Trustee shall not remove any portion of
the Collateral that consists of money or is evidenced by an instrument,
certificate, or other writing from the jurisdiction in which it was held at
the date of the most recent Opinion of Counsel delivered pursuant to Section
3.06 unless the Indenture Trustee receives an Opinion of Counsel to the effect
that
14
the lien and Security Interest created by this Indenture will continue to
be maintained on any removed property after giving effect to its removal.
(c) The Issuer designates the Indenture Trustee its agent and
attorney-in-fact to execute any Financing Statement, Continuation Statement,
or other instrument required to be executed pursuant to this Section. The
Issuer authorizes the Indenture Trustee to file Financing Statements or
Continuation Statements, and amendments to them, relating to any part of the
Collateral without the signature of the Issuer where permitted by law. A
carbon, photographic, or other reproduction of this Indenture or any filed
Financing Statement covering the Collateral or any part of it shall be
sufficient as a Financing Statement where permitted by law. The Indenture
Trustee will promptly send to the Issuer any Financing Statements or
Continuation Statements that it files without the signature of the Issuer. Any
Financing Statement filed relating to any part of the Collateral will state in
bold-faced type that a purchase of the Mortgage Loans included in the
collateral covered by the Financing Statement from the debtor will violate the
rights of the secured party and its assignee.
Section 3.06. Opinions About Collateral.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in its opinion, all action
has been taken
(i) with respect to the recording and filing of this Indenture,
any indentures supplemental to this Indenture, and any other
requisite documents and
(ii) with respect to the execution and filing of any Financing
Statements and Continuation Statements
necessary to perfect the Security Interest of this Indenture in the
Collateral, and reciting the details of the action, or stating that, in its
opinion, no action is necessary to perfect the Security Interest of this
Indenture in the Collateral.
(b) By the date specified in the Adoption Annex in each calendar year
beginning in the year specified in the Adoption Annex, the Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel either stating that, in
its opinion, all action has been taken
(i) with respect to the recording, filing, re-recording, and
refiling of this Indenture, any indentures supplemental to this
Indenture, and any other requisite documents and
(ii) with respect to the execution and filing of any Financing
Statements and Continuation Statements necessary to maintain the
perfected Security Interest created by this Indenture in the
Collateral and reciting the details of the action,
or stating that, in its opinion, no action is necessary to maintain the
perfected Security Interest of this Indenture in the Collateral. The Opinion
of Counsel shall also describe the recording, filing, re-recording, and
refiling of this Indenture, any indentures supplemental to this Indenture, and
any other requisite documents and the execution and filing of any Financing
Statements and Continuation Statements that will, in counsel's opinion, be
15
required to maintain the perfected Security Interest of this Indenture in the
Collateral until the date specified in the Adoption Annex in the following
calendar year.
Section 3.07. Performance of Obligations.
(a) The Issuer will not take any action (and will not permit others
to take any action) that would release any person from any of their material
obligations under any of the Transaction Documents, that would create any
Security Interests that are not provided for in the Transaction Documents, or
that would change or impair the validity or effectiveness of the Transaction
Documents or any Security Interest granted under them, except as expressly
provided in the Transaction Documents. The Indenture Trustee, as pledgee of
the Mortgage Loans and an assignee of the Issuer's rights under the Sale and
Servicing Agreement may exercise all of the rights of the Issuer to direct the
actions of the Master Servicer pursuant to the Sale and Servicing Agreement.
Unless granted or permitted by the Credit Enhancer, the Issuer may not waive
any default by the Master Servicer under the Sale and Servicing Agreement or
terminate the Master Servicer under the Sale and Servicing Agreement.
(b) The Issuer may contract with other persons to assist it in
performing its duties under this Indenture, and the performance of those
duties by a person identified to the Indenture Trustee in an Officer's
Certificate shall be considered to be action taken by the Issuer.
(c) The Issuer will punctually perform all of its obligations under
the Transaction Documents, including properly filing all Financing Statements
and Continuation Statements required to be filed by the Transaction Documents.
The Issuer shall not amend, terminate, or otherwise change any Transaction
Document without the consent of the Indenture Trustee and the Credit Enhancer.
The consent of the Indenture Trustee will not be required if the Rating Agency
Condition is satisfied with respect to the proposed action.
(d) Without derogating from the Grant to the Indenture Trustee under
this Indenture or the rights of the Indenture Trustee under this Indenture,
the Issuer agrees
(i) that it will not, without the prior consent of the Credit
Enhancer and either the Indenture Trustee or the Holders of not less
than 51% of the aggregate Outstanding Amount, change or waive, or
agree to or otherwise permit any change to or waiver of, the terms
of any Collateral (except to the extent otherwise provided in the
Sale and Servicing Agreement); and
(ii) that any change in the terms of any Collateral shall not
(A) increase or reduce the amount of, or accelerate or delay the
timing of, distributions that are required to be made for the
benefit of the Noteholders (except as may be incidental to changes
or waivers allowed under (d)(i)) or (B) reduce the percentage of the
Notes that is required to consent to any change in the terms of any
Collateral without the consent of the Holders of all the Outstanding
Notes.
16
If the Credit Enhancer and either the Indenture Trustee or the requisite
percentage of Holders consent to any change in the terms of any Collateral,
the Issuer agrees, promptly following a request by the Indenture Trustee
to do so, to execute and deliver, in its own name and at its own expense,
any documents the Indenture Trustee deems appropriate under the circumstances.
Section 3.08. Negative Covenants.
So long as any Notes are Outstanding, the Issuer shall not:
(a) dispose of any of the Collateral or other properties or assets of
the Issuer in the same subtrust with the Collateral, except as expressly
permitted by this Indenture or the Sale and Servicing Agreement, unless
directed to do so by the Indenture Trustee with the consent of the Credit
Enhancer;
(b) claim any credit on, or make any deduction from the principal or
interest or other amounts payable on, the Notes (other than amounts properly
withheld from payments under the Code or applicable State law) or assert any
claim against any present or former Noteholder for the payment of the taxes
levied or assessed on any part of the Collateral;
(c) (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be changed (except as
otherwise provided in the Sale and Servicing Agreement), or permit any person
to be released from any obligations on the Notes or under this Indenture
except as expressly permitted by this Indenture, (ii) permit any lien, charge,
excise, claim, Security Interest, mortgage, or other encumbrance (other than
the lien of this Indenture and as otherwise provided in the Sale and Servicing
Agreement) to affect any part of the Collateral, or any interest in it or its
proceeds, or (iii) permit the lien of this Indenture not to constitute a valid
first priority Security Interest in the Collateral; or
(d) dissolve or liquidate in whole or in part;
(e) make any distributions on any ownership interest in the Issuer
relating to the subtrust containing the Collateral (except as expressly
provided for in the Transaction Documents), redeem, purchase, or otherwise
retire or acquire for value any ownership interest in the Issuer relating to
the subtrust containing the Collateral (except as expressly provided for in
the Transaction Documents), or set aside any amounts for any of these
purposes;
(f) engage in any business other than financing, purchasing, owning,
selling, and managing the Collateral; issuing the Notes; and activities
incidental to those contemplated businesses, in each case, in the manner
contemplated by the Transaction Documents;
(g) issue, incur, assume, guarantee, or otherwise have the subtrust
containing the Collateral become liable, directly or indirectly, for any
indebtedness except for its liabilities under the Transaction Documents and
other expenses for which the Issuer is entitled to reimbursement under this
Indenture or the Sale and Servicing Agreement;
17
(h) make any loan or advance of credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation), endorse (except for endorsement of
instruments for collection in the ordinary course of business), or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks, or dividends of, or own, purchase, repurchase, or acquire
(or agree contingently to do so) any stock, obligations, assets, or securities
of, or any other interest in, or make any capital contribution to, any other
person out of the subtrust containing the Collateral;
(i) make any expenditure (by long-term or operating lease or
otherwise) for capital assets; or
(j) subject to the Master Servicer's servicing the Mortgage Loans in
accordance with the Sale and Servicing Agreement, waive or impair, or fail to
assert rights under, the Mortgage Loans, or effect impairment of the Issuer's
interest in the Mortgage Loans, the Sale and Servicing Agreement, or any other
Transaction Document, if the action would materially and adversely affect the
interests of the Noteholders or the Credit Enhancer.
Section 3.09. Annual Compliance Statement.
Within 120 days after the end of each year (commencing with the year
specified in the Adoption Annex) the Issuer will deliver to the Indenture
Trustee and the Credit Enhancer an Officer's Certificate stating, as to the
Authorized Officer signing the Officer's Certificate, that:
(i) a review of the activities of the Issuer during the year
and of its performance under this Indenture and the Trust Agreement
has been made under the Authorized Officer's supervision; and
(ii) to the best of the Authorized Officer's knowledge, based
on that review, the Issuer has complied with all its obligations
under this Indenture and the Trust Agreement throughout that year
or, if there has been a default in its compliance with any
obligation, specifying each default known to the Authorized Officer
and its nature and status.
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
The Issuer shall not consolidate or merge with or into or transfer
all or substantially all of its properties or assets to any other person,
unless:
(i) the person (if other than the Issuer) formed by or
surviving the consolidation or merger or to which the transfer is
made is organized and existing under the laws of the United States
or any State and expressly assumes the due and punctual payment of
the principal and interest on the Notes and the performance of every
obligation under each Transaction Document on the part of the Issuer
to be performed by an indenture supplemental to this Indenture,
executed and delivered to
18
the Indenture Trustee, in form satisfactory to the Indenture Trustee
and the Credit Enhancer;
(ii) immediately after giving effect to the transaction, no
Incipient Default has occurred and is continuing;
(iii) the Rating Agency Condition has been satisfied with
respect to the transaction;
(iv) the Issuer has delivered to the Indenture Trustee and the
Credit Enhancer an Opinion of Counsel to the effect that the
transaction will not have any material adverse tax consequence to
the Issuer or any Noteholder, with a copy to the Credit Enhancer;
(v) any action that is necessary to maintain the Security
Interest created by this Indenture has been taken; and
(vi) the Issuer has delivered to the Indenture Trustee and the
Credit Enhancer an Officer's Certificate and an Opinion of Counsel
each stating that the consolidation or merger and the supplemental
indenture comply with this Article and that all conditions precedent
in this Indenture relating to the transaction have been complied
with (including any filing required by the Exchange Act).
Section 3.11. Successor or Transferee.
Upon any consolidation or merger of the Issuer or transfer all or
substantially all of its properties or assets in accordance with Section 3.10,
the person formed by or surviving the consolidation or merger (if other than
the Issuer) or to which the transfer is made shall succeed to, and be
substituted for, and may exercise every right of, the Issuer under this
Indenture with the same effect as if it had been named as the Issuer in this
Indenture.
Section 3.12. Further Instruments and Acts.
On request of the Indenture Trustee or the Credit Enhancer, the
Issuer will execute and deliver any further instruments and do any further
acts that may be appropriate to carry out more effectively the purpose of this
Indenture.
Section 3.13. Compliance with Laws.
The Issuer shall comply with the requirements of all laws the
non-compliance with which would, individually or in the aggregate, materially
and adversely affect the ability of the Issuer to perform its obligations
under the Notes or any Transaction Document.
Section 3.14. Master Servicer as Agent and Bailee of the Indenture
Trustee.
Solely for the purposes of perfection under Section 9-313(c) of the
UCC or other similar applicable law, rule, or regulation of the state in which
property is held by the Master Servicer, the Master Servicer is acting as
agent and bailee of the Indenture Trustee in holding amounts subject to
deposit to the Collection Account, as well as its agent and bailee in holding
any Mortgage File released to the Master Servicer, and any other items of
19
Collateral that come into the possession of the Master Servicer. By the Master
Servicer's execution of the Sale and Servicing Agreement, the Indenture
Trustee, as a secured party of the Mortgage Loans, has possession of these
items for the purposes of Section 9-313(c) of the UCC of the state in which
the Issuer is organized.
Section 3.15. Investment Company Act.
The Issuer shall not become an "investment company" or under the
"control" of an "investment company" as those terms are defined in the
Investment Company Act of 1940 and the rules and regulations under it (taking
into account not only the general definition of the term "investment company"
but also any available exceptions to the general definition). The Issuer shall
be in compliance with this Section 3.15 if it obtains an order exempting it
from regulation as an "investment company" so long as it is in compliance with
the conditions imposed in the order.
Section 3.16. Representations.
(a) The Issuer represents and warrants to the Indenture Trustee and
the Credit Enhancer that as of the Closing Date, unless specifically stated
otherwise:
(i) This Indenture creates a valid and continuing Security
Interest in the Collateral in favor of the Indenture Trustee. The
Security Interest created by this Indenture is a first priority
perfected Security Interest and it is enforceable as such against
creditors of, and purchasers from, the Issuer.
(ii) The Mortgage Notes are "instruments" as defined in the
UCC.
(iii) Prior to the Grant of the Security Interest pursuant to
the Granting Clause of this Indenture, the Issuer owns, and has good
and marketable title to, the Mortgage Loans free and clear of any
lien, claim, or encumbrance of any person.
(iv) By the Closing Date with respect to the Mortgage Loans and
within 10 days of the applicable date of substitution with respect
to any Eligible Substitute Mortgage Loan, the Issuer will file
Financing Statements in the proper filing office in the appropriate
jurisdiction to perfect the Security Interest in the Collateral
Granted hereunder.
(v) The Issuer has received a written acknowledgement from the
Custodian that the Custodian is acting solely as agent of the
Indenture Trustee.
(vi) The Issuer has not authorized the filing of and is not
aware of any Financing Statements against the Issuer that include a
description of collateral covering the Collateral other than any
financing statement (A) relating to the Security Interests granted
to the Indenture Trustee pursuant to this Indenture, (B) that has
been terminated, or (C) that names the Indenture Trustee as secured
party.
(vii) The Mortgage Notes that constitute or evidence the
Collateral do not have any marks or notations indicating that they
have been pledged, assigned, or
20
otherwise conveyed to any person other than the Indenture
Trustee. All Financing Statements filed or to be filed against the
Issuer in favor of the Indenture Trustee in connection with this
Indenture describing the Collateral contain a statement to the
following effect: "A purchase of the Mortgage Loans included in the
collateral covered by this financing statement will violate the
rights of the Indenture Trustee."
(b) The representations and warranties in this Section 3.16 shall
survive delivery of the respective Mortgage Files to the Custodian pursuant to
the Custodial Agreement and the termination of the Sale and Servicing
Agreement.
(c) The Indenture Trustee and the Credit Enhancer shall not, without
the prior written consent of the Rating Agencies, waive any of the
representations and warranties in Section 3.16(a).
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
Except for rights of conversion or transfer or exchange of Notes
expressly provided for, the rights of the Indenture Trustee under Section
6.07, the rights of Noteholders as beneficiaries of this Indenture with
respect to property deposited with the Indenture Trustee payable to any of
them, and the rights of the Credit Enhancer as subrogee of the Noteholders,
this Indenture shall cease to be of further effect, and the Indenture Trustee,
on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
the option of the Transferor Certificateholder to redeem the Notes as
described in Section 10.01 is exercised or, if not exercised then:
(i) either:
(A) all Notes previously authenticated and delivered have
been delivered to the Indenture Trustee for cancellation (other
than (1) Notes that have been destroyed, lost, or stolen and
that have been replaced or paid as provided in Section 2.04 and
(2) Notes for whose payment money has been deposited in trust
or segregated and held in trust by the Issuer and later repaid
to the Issuer or discharged from the trust, as provided in
Section 3.03); or
(B) all Notes not previously delivered to the
Indenture Trustee for cancellation:
(1) have become payable,
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(2) will become payable at their Scheduled Maturity
Date within one year, or
(3) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee
for the giving of notice of redemption by the Indenture
Trustee in the name, and at the expense, of the Issuer,
and the Issuer, in the case of (1), (2), or (3) above, has
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the
United States (which will mature before the date the amounts
are payable), in trust for these purposes, in an amount
sufficient to pay the entire indebtedness when due on the
Notes not previously delivered to the Indenture Trustee for
cancellation to the applicable Scheduled Maturity Date or
redemption date (if Notes have been called for redemption
pursuant to Section 10.01), as the case may be;
(ii) the Issuer has paid all other sums payable under this
Indenture by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel, and (if required by the
TIA, the Indenture Trustee, or the Credit Enhancer) an Independent
Certificate from a firm of certified public accountants, each meeting
the applicable requirements of Section 11.01, each stating that all
conditions precedent provided for in this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.
Section 4.02. Application of Trust Money.
All money deposited with the Indenture Trustee pursuant to Section
4.01 shall be held in trust and applied by it, in accordance with the Notes
and this Indenture, to the payment to the Holders of the particular Notes for
the payment or redemption of which the money has been deposited with the
Indenture Trustee, of all sums due and to become due on them for principal and
interest. That money need not be segregated from other funds except to the
extent required in this Indenture or required by law.
Section 4.03. Subrogation and Cooperation.
(a) To the extent the Credit Enhancer makes payments of principal or
interest on the Notes under the Policy, the Credit Enhancer will be fully
subrogated to the rights of the Noteholders to receive that principal and
interest from the Mortgage Loans and any other Collateral, and the Credit
Enhancer shall be paid that principal and interest, but only from the sources
and in the manner provided in this Indenture and the Sale and Servicing
Agreement for the payment of that principal and interest. Any payment of
principal or interest on the Notes made with moneys received under the Policy
shall not be considered payment of the Notes from the Trust and shall not
result in the payment of or the provision
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for the payment of the principal or interest on the Notes under Section 4.01.
The Credit Enhancer shall be paid principal and interest from Mortgage Loans
only from the sources and in the manner provided in this Indenture and in the
Insurance Agreement.
The Indenture Trustee shall cooperate in all respects with any
reasonable request or direction by the Credit Enhancer to take any of the
following actions to preserve or enforce the Credit Enhancer's interest under
this Indenture or the Sale and Servicing Agreement, consistent with this
Indenture and without limiting the rights of the Noteholders under this
Indenture, including upon the occurrence and continuance of a Credit Enhancer
Default:
(i) institute Proceedings for the collection of all amounts
then payable on the Notes or under this Indenture with respect to the
Notes and all amounts payable under the Insurance Agreement and to
enforce any judgment obtained and collect from the Issuer monies
adjudged due;
(ii) sell any part of Collateral or interests in it at one or
more public or private sales called and conducted in any manner
permitted by law;
(iii) file or record all Assignments of Mortgage that
have not previously been recorded;
(iv) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture; and
(v) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the
interests of the Credit Enhancer under this Indenture.
Following the payment in full of the Notes, the Credit Enhancer shall
continue to have all the rights given to it under this Section and in all
other provisions of this Indenture, until all amounts owing to the Credit
Enhancer have been paid in full.
Section 4.04. Release of Collateral.
(a) Upon satisfaction and discharge of this Indenture pursuant to
Section 4.01 and otherwise as permitted by this Indenture, the Indenture
Trustee shall execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the property, in a
manner and under circumstances that are not inconsistent with this Indenture.
No party relying on an instrument executed by the Indenture Trustee as
provided in this Section shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent, or see
to the application of any moneys.
(b) When no Notes are Outstanding, the Indenture Trustee shall
release any remaining Collateral that secured the Notes from the lien of this
Indenture and release to the Issuer any funds then on deposit in any account
other than funds held in trust for the satisfaction of Notes that have not
been surrendered for payment. The Indenture Trustee shall release property
from the lien of this Indenture pursuant to this Section only on receipt of an
Issuer Request accompanied by an Officer's Certificate.
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(c) Whenever a Mortgage Loan has been substituted for in accordance
with Section 2.01(f) or 2.02(b) of the Sale and Servicing Agreement, purchased
in accordance with Section 3.06 of the Sale and Servicing Agreement, or
designated for transfer in accordance with Section 2.06 of the Sale and
Servicing Agreement, the Indenture Trustee shall execute appropriate documents
to release the Mortgage Loan from the lien of this Indenture and deliver the
Mortgage File to the appropriate party.
(d) The Indenture Trustee shall release property from the lien of
this Indenture only on receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel, and Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion of Counsel in
lieu of Independent Certificates to the effect that the TIA does not require
any Independent Certificates.
Article V
Remedies
Section 5.01. Events of Default.
Any one of the following events is an "Event of Default" whatever the
reason:
(i) default by the Issuer in the payment of any interest on any
Note when it becomes payable, and the default continues for five
days; or
(ii) default by the Issuer in the payment of the principal of
any Note when it becomes payable and the default continues for five
days; or
(iii) default in the performance of any obligation of
the Issuer under this Indenture (other than an obligation
specifically dealt with elsewhere in this Section), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered in connection with this
Indenture proves to have been materially incorrect as of the time
when it was made, and the default or the circumstance making the
representation or warranty incorrect has not been cured within 60
days after notice to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Credit Enhancer (or, if a
Credit Enhancer Default exists, by the Holders of at least 25% of the
Outstanding Amount of the Notes) by registered or certified mail
specifying the default or incorrect representation or warranty and
requiring it to be remedied and stating that the notice is a notice
of default under this Indenture; or
(iv) an Insolvency Event occurs with respect to the Issuer.
The Issuer shall deliver to the Indenture Trustee and the Credit Enhancer,
within five days after its occurrence, notice in the form of an Officer's
Certificate of any Incipient Default under clause (iii), its status, and what
action the Issuer is taking or proposes to take with respect to the event.
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Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then the Indenture
Trustee or the Holders of not less than 51% of the aggregate Outstanding
Amount, in either case with the consent of the Credit Enhancer, or the Credit
Enhancer may declare all the Notes to be immediately payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon that declaration the unpaid principal amount of the Notes, together
with accrued interest on them through the date of acceleration, shall become
immediately payable.
At any time after the 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 Indenture Trustee, the Holders of not less than 51% of
the aggregate Outstanding Amount, with the consent of the Credit Enhancer, or
the Credit Enhancer, by notice to the Issuer and the Indenture Trustee, may
rescind the declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal and interest on the
Notes and all other amounts that would then be due under
this Indenture or on the Notes if the Event of Default
giving rise to the acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee under this Indenture and the reasonable
compensation, expenses, disbursements, and advances of the
Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal or interest of the Notes that have become due solely by the
acceleration, have been cured or waived as provided in Section 5.13.
No rescission shall affect any subsequent default or impair any right
consequent to it.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if the Notes are accelerated following
an Event of Default, then the Issuer will pay to the Indenture Trustee on
demand, for the benefit of the Noteholders or the Credit Enhancer if the
Credit Enhancer has made a payment on the Notes under the Policy, the whole
amount then payable on the Notes and, in addition, any further amount needed
to cover the expenses of collection, including the reasonable compensation and
expenses of the Indenture Trustee and its agents and counsel.
(b) If the Issuer fails to pay those amounts immediately on demand,
the Indenture Trustee, in its own name and as trustee of an express trust,
subject to Section 11.16 may, and at the direction of the Credit Enhancer
shall, institute a Proceeding for the collection of the sums due, and may
prosecute the Proceeding to final decree, and may enforce the judgment against
the Issuer (or other obligor on the Notes) and collect in the manner provided
by law
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out of the property of the Issuer (or other obligor on the Notes) wherever
situated, the moneys determined to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee subject to Section 11.16 may in its discretion with the consent of the
Credit Enhancer (subject to Section 5.04), and at the direction of the Credit
Enhancer shall, proceed to protect and enforce its rights and the rights of
the Noteholders and the Credit Enhancer, by Proceedings the Indenture Trustee
deems most effective to protect and enforce those rights, whether for the
specific enforcement of any agreement in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other
proper remedy or legal or equitable right vested in the Indenture Trustee by
this Indenture or by law.
(d) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of this Indenture to which the
Indenture Trustee is a party), the Indenture Trustee shall be held to
represent all the Noteholders and the Credit Enhancer, and it shall not be
necessary to make any Noteholder or the Credit Enhancer a party to the
Proceedings.
(e) All rights of action and assertion of claims under this
Indenture, the Sale and Servicing Agreement, or any of the Notes may be
enforced by the Indenture Trustee without the possession of any of the Notes
or their production in any Proceedings regarding them. Any Proceedings
instituted by the Indenture Trustee shall be brought in its own name as
trustee of an express trust. Any recovery of judgment, subject to the payment
of the expenses, disbursements, and compensation of the Indenture Trustee,
each predecessor Indenture Trustee, and their agents and counsel, shall be for
the ratable benefit of the Noteholders and the Credit Enhancer.
Section 5.04. Indenture Trustee May File Proofs of Claim.
(a) If
(1) Proceedings under Title 11 of the United States Code or
any other applicable federal or State bankruptcy, insolvency, or
other similar law are pending relating to the Issuer or any other
obligor on the Notes or any person having or claiming an ownership
interest in the Collateral, or
(2) a receiver, assignee, or trustee in bankruptcy or
reorganization, or liquidator, sequestrator, or similar official has
been appointed for or taken possession of the Issuer or its property
or the other obligor or person, or
(3) any other comparable judicial Proceedings are pending
relating to the Issuer or other obligor on the Notes, or to the
creditors or property of the Issuer or the other obligor,
then, irrespective of whether the principal of any Notes is then payable as
expressed in them or by declaration or otherwise and irrespective of whether
the Indenture Trustee has made
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any demand pursuant to this Section, with the consent of the Credit
Enhancer the Indenture Trustee is authorized by intervention in the
Proceedings or otherwise:
(i) to file and prove claims for the entire amount of
principal and interest and other amounts owing on the Notes and to
file any other documents appropriate to have the claims of the
Indenture Trustee, the Credit Enhancer, and of the Noteholders
allowed in the Proceedings (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor Indenture
Trustee, and their respective agents and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of negligence or bad faith);
(ii)to vote on behalf of the Holders of Notes in any
election of a trustee, a standby trustee, or person performing
similar functions in the Proceedings; and
(iii) to collect and receive any moneys or other
property payable on any claims and to distribute all amounts received
on the claims of the Noteholders, the Credit Enhancer, and of the
Indenture Trustee on their behalf;
and any trustee, receiver, liquidator, custodian, or other similar official in
any Proceeding is hereby authorized by each of the Noteholders to make
payments to the Indenture Trustee and, if the Indenture Trustee consents to
the Noteholders receiving payments directly, to pay to the Indenture Trustee
amounts sufficient to cover reasonable compensation to the Indenture Trustee,
each predecessor Indenture Trustee, and their respective agents and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee except as a result of
negligence or bad faith, and to pay all amounts due to the Credit Enhancer.
(b) Nothing contained in this Indenture authorizes the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder or the Credit Enhancer any plan of reorganization, arrangement,
adjustment, or composition affecting the Notes or the rights of any Noteholder
or the Credit Enhancer or authorizes the Indenture Trustee to vote on the
claim of any Noteholder or the Credit Enhancer in any such proceeding except
to vote for the election of a trustee in bankruptcy or similar person.
Section 5.05. Remedies; Priorities.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee subject to Section 11.16 may with the consent of the Credit
Enhancer, and at the direction of the Credit Enhancer shall, do any of the
following (subject to Section 5.11):
(i) institute Proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on
the Notes or under this Indenture, whether by declaration or
otherwise, and all amounts payable under the Sale and Servicing
Agreement, and enforce any judgment obtained, and collect from the
Issuer and any other obligor on the Notes moneys adjudged due;
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(ii) institute Proceedings for the complete or partial
foreclosure of this Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect and enforce
the rights of the Indenture Trustee, the Credit Enhancer, and the
Noteholders;
(iv) exercise all rights of the Issuer in connection with the
Purchase Agreement and the Sale and Servicing Agreement against the
Sponsor, the Depositor, or the Master Servicer or otherwise; and
(v) sell any portion of the Collateral or interests in it as
directed by the Credit Enhancer, at one or more public or private
sales called and conducted in any manner permitted by law.
The Indenture Trustee, however, may not sell or otherwise liquidate Collateral
following an Event of Default unless (A) the Indenture Trustee obtains the
consent of the Credit Enhancer and the Holders of 100% of the aggregate
Outstanding Amount of the Notes, (B) the proceeds of the sale or liquidation
distributable to the Noteholders and the Credit Enhancer are sufficient to
discharge in full all amounts then due on the Notes and to reimburse the
Credit Enhancer for any unreimbursed Credit Enhancer Draw Amounts and any
other amounts due the Credit Enhancer under the Insurance Agreement, or (C)
the Indenture Trustee determines that the Collateral will not continue to
provide sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of the Credit Enhancer
and the Holders of a majority of the aggregate Outstanding Amount of the
Notes. In determining the sufficiency or insufficiency under clause (B) and
(C), the Indenture Trustee may, but need not, obtain and rely upon an opinion
of an Independent investment banking or accounting firm of national reputation
as to the feasibility of the proposed action and as to the sufficiency of the
Collateral for the purpose. If a Credit Enhancer Defaults exists at the time
any consent is required or direction may be given under this Section 5.05(a),
the consent or direction shall be by Holders representing at least 662/3% of
the Outstanding Amount instead of by the Credit Enhancer.
(b) If the Indenture Trustee collects any money or property under
this Article, it shall pay out the money or property in the following order:
First: to the Indenture Trustee for the fee of the Indenture
Trustee (separately agreed to between the Master Servicer and the
Indenture Trustee) then due and any expenses incurred by it in
connection with the enforcement of the remedies under this Article
and to the Owner Trustee for the fee of the Owner Trustee (separately
agreed to between the Master Servicer and the Owner Trustee) then due
and any expenses due to the Owner Trustee under any of the
Transaction Documents;
Second: any premium owing to the Credit Enhancer;
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Third: to the Noteholders for interest due on the Notes,
pro rata according to the amounts due on the Notes for interest;
Fourth: to the Noteholders for amounts due on the Notes for
principal, pro rata according to the principal due on the Notes until
the Note Principal Balance of the Notes is reduced to zero;
Fifth: to the Credit Enhancer, any other amounts owed to the
Credit Enhancer under the Insurance Agreement; and
Sixth: to the Issuer for distribution in accordance with the
Trust Agreement.
Section 5.06. Optional Preservation of the Collateral.
If the Notes have been declared to be due under Section 5.02
following an Event of Default and the declaration and its consequences have
not been annulled, the Indenture Trustee may with the consent of the Credit
Enhancer, but need not unless so directed by the Credit Enhancer, elect to
maintain possession of the Collateral. The parties and the Noteholders want
sufficient funds to exist at all times for the payment of principal of and
interest on the Notes and other obligations of the Issuer including payments
to the Credit Enhancer, and the Indenture Trustee shall take that into account
when determining whether or not to maintain possession of any Collateral. In
determining whether to maintain possession of the Collateral, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of the proposed action and as to the sufficiency of the Collateral
for the purpose.
Section 5.07. Limitation of Suits.
No Noteholder may institute any Proceeding with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy under this Indenture, unless the Credit Enhancer has consented and
subject to Section 11.16:
(i) the Holder has previously given notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 51% of the aggregate
Outstanding Amount have requested the Indenture Trustee in writing to
institute a Proceeding with respect to the Event of Default in its
own name as Indenture Trustee under this Indenture;
(iii) the Holders have offered the Indenture Trustee
reasonable indemnity against the costs and liabilities to be incurred
in complying with the request;
(iv) the Indenture Trustee for 60 days after its receipt of
the request and offer of indemnity has failed to institute
Proceedings;
29
(v) no direction inconsistent with the request has been
given to the Indenture Trustee during the 60-day period by the
Holders of not less than 51% of the aggregate Outstanding Amount; and
(vi) the Holders have obtained the consent of the Credit
Enhancer.
No Holders of Notes shall have any right in any manner whatever because of
this Indenture to affect the rights of any other Holders of Notes or to obtain
or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner provided in this
Indenture.
If the Indenture Trustee receives inconsistent requests and indemnity
from two or more groups of Holders of Notes, each representing less than 51%
of the aggregate Outstanding Amount, the Indenture Trustee in its sole
discretion may determine what action shall be taken.
Section 5.08. Unconditional Right to Receive Principal and Interest.
Notwithstanding any other provisions in this Indenture, every
Noteholder has an absolute and unconditional right to receive payment of the
principal and interest and other amounts payable on its Note after their due
dates (or, in the case of redemption, after the redemption date) and to
institute suit for the enforcement of any payment, and this right shall not be
impaired without the consent of the Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Indenture Trustee or any Noteholder has instituted any
Proceeding to enforce any right under this Indenture and the Proceeding has
been discontinued or abandoned for any reason or has been determined adversely
to the Indenture Trustee or to the Noteholder, then the Issuer, the Indenture
Trustee, the Credit Enhancer, and the Noteholders shall, subject to any
determination in the Proceeding, be restored severally and respectively to
their former positions under this Indenture, and all rights of the Indenture
Trustee and the Noteholders shall continue as though no Proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
No right given to the Indenture Trustee, the Credit Enhancer, or to
the Noteholders in this Indenture is intended to be exclusive of any other
right, and every right shall, to the extent permitted by law, be cumulative to
every other right given under this Indenture or existing at law or in equity
or otherwise. The assertion of any right under this Indenture, or otherwise,
shall not prevent the concurrent assertion of any other appropriate right.
Section 5.11. Delay or Omission Not a Waiver.
No delay in exercising or failure to exercise any right accruing on
any Incipient Default shall impair the right or constitute a waiver of the
Incipient Default or an acquiescence in it. Every right given by this Article
or by law to the Indenture Trustee, to the
30
Credit Enhancer, or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee, by
the Credit Enhancer, or by the Noteholders.
Section 5.12. Control by Credit Enhancer or Noteholders.
If no Credit Enhancer Default exists, then the Credit Enhancer,
otherwise the Holders of not less than 51% of the aggregate Outstanding
Amount, may direct the time, method, and place of conducting any Proceeding
for any remedy available to the Indenture Trustee with respect to the Notes or
exercising any right conferred on the Indenture Trustee. No direction shall be
binding unless:
(i) it does not conflict with any rule of law or with this
Indenture; and
(ii) if no Credit Enhancer Default exists, it is by the Credit
Enhancer, otherwise by the Holders of Notes representing not less than
100% of the aggregate Outstanding Amount if the direction to the
Indenture Trustee is to sell or liquidate the Collateral.
The Indenture Trustee may take any other action it deems proper that is not
inconsistent with the direction, Section 5.04, or Section 5.05.
Section 5.13. Waiver of Past Defaults.
Before the declaration of the acceleration of the maturity of the
Notes as provided in Section 5.02, the Credit Enhancer or, if a Credit
Enhancer Default exists, the Holders of not less than 51% of the aggregate
Outstanding Amount may waive any past default and its consequences except a
default
(i) in payment of principal or interest on any of the Notes
or
(ii) regarding a provision of this Indenture that cannot
be changed without the consent of the Holder of each affected Note.
After any such waiver, the Incipient Default shall cease to exist and
be considered to have been cured and not to have occurred, and any Event of
Default arising from it shall be considered to have been cured and not to have
occurred, for every purpose of this Indenture. No waiver shall extend to any
subsequent or other default or impair any right consequent to it.
Section 5.14. Undertaking For Costs.
All parties to this Indenture agree, and each Holder of a Note by its
acceptance of its Note agrees, that in any suit for the enforcement of any
right under this Indenture, or in any suit against the Indenture Trustee for
any action taken, suffered, or omitted by it as Indenture Trustee, any court
may in its discretion require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and that the court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit,
31
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. The provisions of this Section shall not apply to
(i) any suit instituted by the Indenture Trustee or the
Credit Enhancer,
(ii) any suit instituted by any Noteholder, or group of
Noteholders, holding in the aggregate more than 25% of the aggregate
Outstanding Amount, or
(iii) any suit instituted by any Noteholder for the
enforcement of the payment of principal or interest on any Note after
the due dates expressed in the Note and in this Indenture (or, in the
case of redemption, after the redemption date).
Section 5.15. Waiver of Stay or Extension Laws.
To the extent that it may lawfully do so, the Issuer covenants that
it will not at any time insist on, 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 after this in force, that may affect the covenants
or the performance of this Indenture. To the extent that it may lawfully do
so, the Issuer expressly waives all benefit of any such law, and covenants
that it will not hinder, delay, or impede the execution of any power granted
in this Indenture to the Indenture Trustee, but will permit the execution of
every power as though the law had not been enacted.
Section 5.16. Rapid Amortization Events.
If any one of the following events occurs during the Managed
Amortization Period:
(a) The failure of the Sponsor or the Master Servicer to make any
payment or deposit required by the Sale and Servicing Agreement within three
Business Days after the payment or deposit was required to be made;
(b) The failure of the Sponsor or the Master Servicer to cause the
Depositor to observe or perform in any material respect the covenants of the
Depositor in Section 2.01(h) or 2.05 of the Sale and Servicing Agreement;
(c) The failure of the Sponsor to observe or perform in any material
respect any other covenants of the Sponsor in the Sale and Servicing Agreement
that materially and adversely affects the interests of the Noteholders or the
Credit Enhancer and that continues unremedied and continues to affect
materially and adversely the interests of the Noteholders or the Credit
Enhancer for 60 days (five days in the case of any failure to take the action
specified in the second sentence of Section 2.01(f) of the Sale and Servicing
Agreement or Section 2.04(b)(2) of the Sale and Servicing Agreement) after the
date on which written notice of the failure, requiring it to be remedied,
shall have been given to the Sponsor by the Indenture Trustee, or to the
Sponsor and the Indenture Trustee by the Credit Enhancer or the Holders of not
less than 51% of the aggregate Outstanding Amount;
(d) Any representation or warranty made by the Sponsor or the
Depositor in the Sale and Servicing Agreement proves to have been incorrect in
any material respect when
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made, as a result of which the interests of the Noteholders or the Credit
Enhancer are materially and adversely affected and that continues to be
incorrect in any material respect and continues to affect materially and
adversely the interests of the Noteholders or the Credit Enhancer for 60 days
after the date on which notice of the failure, requiring it to be remedied,
shall have been given to the Sponsor or the Depositor, as the case may be, by
the Indenture Trustee, or to the Sponsor, the Depositor, and the Indenture
Trustee by either the Credit Enhancer or the Holders of not less than 51% of
the aggregate Outstanding Amount. A Rapid Amortization Event pursuant to this
subparagraph (d) shall not occur if the Sponsor has accepted retransfer of the
related Mortgage Loans or substituted for them during the 60-day period (or
such longer period (not to exceed an additional 60 days) as the Indenture
Trustee may specify) in accordance with the Sale and Servicing Agreement.
(e) An Insolvency Event occurs with respect to the Transferor or the
Depositor, but for this purpose the 60-day periods in the definition of
Insolvency Event shall be 30 days;
(f) The Trust becomes subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended; or
(g) The aggregate of all draws under the Policy exceeds the
percentage of the Original Note Principal Balance specified in the Adoption
Annex,
then, when any event described in subparagraph (a), (b), (c), or (d) occurs,
either the Indenture Trustee, the Credit Enhancer, or the Holders of not less
than 51% of the aggregate Outstanding Amount, by notice given in writing to
the Transferor, the Depositor, and the Master Servicer (and to the Indenture
Trustee if given by either the Credit Enhancer or the Noteholders) may declare
that an early amortization event (a "Rapid Amortization Event") has occurred
as of the date of the notice, and in the case of any event described in
subparagraph (e), (f), or (g), a Rapid Amortization Event shall occur without
any notice or other action on the part of the Indenture Trustee, the Credit
Enhancer, or the Noteholders, immediately upon its occurrence.
Section 5.17. Sale of Collateral.
(a) The power to effect any sale or other disposition (a "Sale") of
any portion of the Collateral pursuant to Section 5.05 is subject to this
Section 5.17. The Indenture Trustee waives its right to any amount fixed by
law as compensation for any Sale.
(b) In connection with a Sale of any of the Collateral,
(i) any Holder of Notes may bid for the property offered for
sale, and on compliance with the terms of sale may own the property
without further accountability, and may, in paying its purchase
price, deliver any Notes or claims for interest on them rather than
cash up to the amount that would be payable on them from the
distribution of the net proceeds of the sale, and the Notes shall be
returned
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to the Holders after being appropriately stamped to show
partial payment if the amount payable for the property is less than
the amount due on the Notes;
(ii) the Indenture Trustee may bid for and acquire the
property offered for Sale, and may purchase any portion of the
Collateral in a private sale, and rather than paying cash, may settle
the purchase price by crediting the gross Sale price against the
amount that would be distributable as a result of the Sale in
accordance with Section 5.05(b) on the next Payment Date after the
Sale without being required to produce the Notes to complete the Sale
or for the net Sale price to be credited against the Notes, and any
property so acquired by the Indenture Trustee shall be held and dealt
with by it in accordance with this Indenture;
(iii) the Indenture Trustee shall execute and deliver
an appropriate instrument of conveyance transferring its interest in
any portion of the Collateral in connection with its Sale;
(iv) the Indenture Trustee is hereby irrevocably appointed
the agent and attorney-in-fact of the Issuer to transfer its interest
in any portion of the Collateral in connection with its Sale, and to
take all action necessary to effect the Sale; and
(v) no purchaser or transferee at a Sale need ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent, or see to the application of any monies.
Section 5.18. Performance and Enforcement of Certain Obligations.
The Indenture Trustee, as pledgee of the Mortgage Loans, may, and at
the direction of the Credit Enhancer (or the Holders of 662/3% of the
Outstanding Amount if a Credit Enhancer Default exists) shall exercise all
rights of the Issuer against the Sponsor or the Master Servicer in connection
with the Sale and Servicing Agreement, including the right to take any action
to obtain performance by the Seller or the Master Servicer, as the case may
be, of each of their obligations to the Issuer under the Sale and Servicing
Agreement and to give any consent, request, notice, direction, approval,
extension, or waiver under the Sale and Servicing Agreement, and any right of
the Issuer to take such action shall not be suspended. Any direction by the
Credit Enhancer under this Section may be by telephone, promptly confirmed in
writing.
Article VI
The Indenture Trustee
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would use under the circumstances in the
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conduct of its own affairs, except when this Indenture or the Sale and
Servicing Agreement requires it to follow the directions of the Credit Enhancer.
(b) Except during the continuance of an Event of Default:
(i) obligations of the Indenture Trustee shall be determined
solely by the express provisions of this Indenture and the Sale and
Servicing Agreement, the Indenture Trustee undertakes to perform only
the duties specifically stated in this Indenture and the Sale and
Servicing Agreement, and no implied covenants or obligations shall be
read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed in them, on certificates,
opinions, or other documents furnished to the Indenture Trustee and
conforming to the requirements of this Indenture and the Sale and
Servicing Agreement, and the Indenture Trustee need not investigate
into any of the matters expressed in them; but in the case of
certificates or opinions specifically required to be furnished to the
Indenture Trustee, the Indenture Trustee must examine them to
determine whether or not they conform to the requirements of this
Indenture and the Sale and Servicing Agreement. If any instrument is
found not to conform to the requirements of this Indenture or the
Sale and Servicing Agreement and is not timely corrected to the
Indenture Trustee's satisfaction, the Indenture Trustee shall notify
the Credit Enhancer and request written instructions as to the action
the Credit Enhancer deems appropriate to have the instrument
corrected, and if the instrument is not so corrected, the Indenture
Trustee will so notify the Credit Enhancer, who may then direct the
Indenture Trustee as to any action to be taken.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this subsection does not limit the effect of Section
6.01(b);
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with the direction of the Credit Enhancer or in accordance
with a direction received by it from the Holders of not less than 51%
of the aggregate Outstanding Amount relating to the method and place
of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any right
conferred on the Indenture Trustee under this Indenture or the Sale
and Servicing Agreement;
(iv) the Indenture Trustee shall not be charged with
knowledge of the occurrence of an Incipient Default, a Rapid
Amortization Event, or of any failure by the Master Servicer to
comply with its obligations under Section 6.01(i) or (ii) of the
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Sale and Servicing Agreement unless a Responsible Officer at the
Corporate Trust Office obtains actual knowledge of the failure or the
Indenture Trustee receives notice of the failure; and
(v) no provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties under
this Indenture or in the exercise of any of its rights, if it has
reasonable grounds to believe that repayment of the funds or adequate
indemnity against the risk is not reasonably assured to it.
(d) Every provision of this Indenture relating to the conduct or
affecting the liability of the Indenture Trustee shall be subject to the
provisions of this Section and the TIA.
(e) The limitations on the obligations of the Indenture Trustee under
this Indenture shall not affect any obligations of the Indenture Trustee
acting as Master Servicer under the Sale and Servicing whenever it may be so
acting.
Section 6.02. Notice of Defaults.
If an Incipient Default or Rapid Amortization Event occurs and is
continuing and if a Responsible Officer knows of it, the Indenture Trustee
shall notify the Credit Enhancer and mail to each Noteholder notice of the
Incipient Default or Rapid Amortization Event within 90 days after it occurs.
Except in the case of an Incipient Default in payment of principal or interest
on any Note, the Indenture Trustee may withhold the notice to Noteholders so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
Section 6.03. Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel unless
other evidence is specifically required.
(c) The Indenture Trustee may execute any of the trusts or powers
under this Indenture or perform any duties under this Indenture either
directly or through agents or counsel or a custodian or nominee, and the
Indenture Trustee shall not be responsible for any misconduct or negligence on
the part of, or for the supervision of, any agent, counsel, custodian, or
nominee appointed with due care by it under this Indenture.
(d) The Indenture Trustee may consult with counsel, and the written
advice of counsel with respect to legal matters relating to this Indenture,
the Transaction Documents, and the Notes and any Opinion of Counsel shall be
full authorization and protection from
36
liability for any action taken, omitted, or suffered by it under this
Indenture in good faith and in accordance with the advice of counsel or any
Opinion of Counsel.
(e) The Indenture Trustee may enter into any amendment of the Sale
and Servicing Agreement as to which the Rating Agency Condition is satisfied,
and when so requested by an Issuer Request and the Rating Agency Condition is
satisfied, the Indenture Trustee shall enter into any amendment of the Sale
and Servicing Agreement
(i) that does not impose further obligations or liabilities
on the Indenture Trustee, and
(ii) as to which either the Rating Agency Condition is
satisfied or Holders of not less than 662/3% of the aggregate
Outstanding Amount of Notes and the Credit Enhancer have consented.
(f) With the consent of the Master Servicer and the Credit Enhancer,
the Indenture Trustee may appoint Custodians to hold any portion of the
Collateral as agent for the Indenture Trustee, by entering into a Custodial
Agreement substantially in the form of Exhibit B. Subject to this Article, the
Indenture Trustee agrees to comply with each Custodial Agreement and to
enforce each Custodial Agreement against the custodian for the benefit of the
Noteholders and the Credit Enhancer. Each custodian shall be a depository
institution (or an affiliate of a depository institution) subject to
supervision by federal or state authority and shall be qualified to do
business in the jurisdiction in which it holds any Collateral. Each Custodial
Agreement may be amended only with the consent of the Credit Enhancer, which
shall not be unreasonably withheld.
Section 6.04. Indenture Trustee Not Responsible for Certain Things.
The Indenture Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of the Collateral or any
Transaction Document (other than the signature and authentication of the
Indenture Trustee on the Notes). It shall not be responsible for any statement
in this Indenture other than Section 6.14 or in any document issued in the
sale of the Notes or in the Notes other than the Indenture Trustee's
certificate of authentication.
The Indenture Trustee is not accountable for the use or application
by the Issuer of any of the Notes or of the proceeds of the Notes, or for the
use or application of any funds paid to the Depositor or the Master Servicer
on the Mortgage Loans or deposited in or withdrawn from the Collection Account
by the Master Servicer. The Indenture Trustee shall not be responsible for the
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of its perfection
and priority, or for the sufficiency of the Trust or its ability to generate
the payments to be distributed to Noteholders under this Indenture, or the
sufficiency or validity of MERS or the MERS(R) System, including the
existence, condition, and ownership of any Mortgaged Property; the existence
and enforceability of any hazard insurance on any Mortgaged
37
Property; the validity of the assignment of any Mortgage Loan to the
Indenture Trustee or of any intervening assignment; the completeness of any
Mortgage Loan; the performance or enforcement of any Mortgage Loan; any
investment of monies by or at the direction of the Master Servicer or any
resulting loss; the acts or omissions of any of the Depositor, the Master
Servicer, any subservicer, or any mortgagor under a Mortgage; any action of
the Master Servicer or any subservicer taken in the name of the Indenture
Trustee; or the failure of the Master Servicer or any subservicer to act or
perform any duties required of it as agent of the Indenture Trustee. The
Indenture Trustee shall have no responsibility for filing any Financing or
Continuation Statement in any public office at any time or otherwise to
perfect or maintain the perfection of any Security Interest or lien granted to
it under this Indenture or to prepare or file any Commission filing for the
Trust or to record this Indenture.
Section 6.05. Individual Rights of Indenture Trustee.
The Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Issuer,
the Sponsor, and their affiliates with the same rights it would have if it
were not Indenture Trustee. Any co-trustee, Paying Agent, Note Registrar,
co-registrar, or co-paying agent may do the same with like rights.
Section 6.06. Money Held in Trust.
Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the Transaction
Documents. The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing.
Section 6.07. Compensation.
The compensation of the Indenture Trustee will be separately agreed
to between the Master Servicer and the Indenture Trustee and, to the extent
not paid otherwise, will be payable after an Event of Default as provided in
Section 5.05(b). To the extent funds available under Section 5.05(b) are
insufficient to pay the full amount of the fees, they will be paid by the
Master Servicer. Except for amounts available for the purpose as provided in
Section 5.05(b), the Indenture Trustee shall have no claim against the Issuer
or any of the Collateral for the payment of any of its fees and expenses. The
Indenture Trustee shall not fail to perform its duties under the Transaction
Documents if its fees and expenses are not paid.
Section 6.08. Eligibility.
The Indenture Trustee shall be a corporation organized and doing
business under the laws of the United States or any State, authorized under
those laws to exercise trust powers, and shall satisfy the requirements of
Rule 3a-7(a)(4)(i) of the Investment Company Act of 1940. The Indenture
Trustee shall satisfy the requirements of TIA Section 310(a) at all times. The
Indenture Trustee shall have a combined capital and surplus of at least
38
$50,000,000 as shown in its most recent published annual report of condition.
The Indenture Trustee shall comply with TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9).
However, any indentures under which other securities of the Issuer are
outstanding shall be excluded from the operation of TIA Section 310(b)(1) if
the requirements for the exclusion in TIA Section 310(b)(1) are met. The
principal office of any successor Indenture Trustee shall be in a state for
which an Opinion of Counsel has been delivered to the successor Indenture
Trustee at the time it is appointed to the effect that the Trust will not be a
taxable entity under the laws of the state of its principal office. Whenever
an Indenture Trustee ceases to be eligible in accordance with the provisions
of this Section, the Indenture Trustee shall resign immediately in accordance
with Section 6.10.
Section 6.09. Preferential Collection of Claims Against Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
Section 6.10. Replacement of Indenture Trustee.
No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee shall become effective until the acceptance
of appointment by the successor Indenture Trustee. The Indenture Trustee may
resign at any time by so notifying the Issuer, the Transferor, the Depositor,
the Master Servicer, and the Credit Enhancer. The Credit Enhancer or the
Holders of not less than 51% of the aggregate Outstanding Amount may remove
the Indenture Trustee at any time and the Issuer shall then appoint a
successor Indenture Trustee reasonably acceptable to the Credit Enhancer by so
notifying the Indenture Trustee, the Transferor, the Depositor, the Master
Servicer, and the Credit Enhancer. The Issuer (and if the Issuer fails to do
so, the Transferor) shall remove the Indenture Trustee and appoint a successor
reasonably acceptable to the Credit Enhancer if:
(i) the Indenture Trustee fails to satisfy Section 6.08;
(ii) an Insolvency Event occurs with respect to the Indenture
Trustee; or
(iii) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee fails to satisfy Section 6.08, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee. If
a successor Indenture Trustee does not take office within 60 days after the
retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer, the Transferor, the Depositor, the Master Servicer, the
Credit Enhancer, or the Holders of not less than 51% of the aggregate
Outstanding Amount may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. If the Indenture Trustee resigns
or is removed or if a vacancy exists in the office of Indenture Trustee for
any reason, the Issuer, with the approval of the Transferor and the
39
Credit Enhancer, shall promptly appoint a successor Indenture Trustee for the
retiring Indenture Trustee.
Section 6.11. Acceptance of Appointment by Successor.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer, the
Transferor, the Depositor, the Master Servicer, and the Credit Enhancer. The
resignation or removal of the retiring Indenture Trustee shall become
effective on receipt of the written acceptance, and the successor Indenture
Trustee shall have all the rights and obligations, and automatically succeed
to the estate, of the Indenture Trustee under this Indenture without any
further act or transfer. The successor Indenture Trustee shall mail a notice
of its succession to the Noteholders. The retiring Indenture Trustee shall
promptly deliver any instruments of transfer with respect to the trust estate
requested by the Issuer or the successor Indenture Trustee and deliver all
property held by it as Indenture Trustee to the successor Indenture Trustee.
No proposed successor Indenture Trustee shall accept its appointment unless at
the time of its acceptance it is eligible under Section 6.08.
Section 6.12. Successor Indenture Trustee by Merger.
If the Indenture Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business or assets
to, another corporation or banking association, the resulting, surviving, or
transferee corporation shall be the successor Indenture Trustee if it is
otherwise eligible under Section 6.08 without any further act on the part of
anyone. The Indenture Trustee shall provide the Credit Enhancer and each
Rating Agency notice of any such transaction.
If any of the Notes have been authenticated but not delivered when
the successor Indenture Trustee takes over, it may adopt the certificate of
authentication of any predecessor Indenture Trustee and deliver the
authenticated Notes with the same effect as if it had authenticated the Notes.
Section 6.13. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.
(a) Notwithstanding any other provision of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee and the Issuer, acting jointly, may execute and deliver instruments to
appoint one or more persons approved by the Master Servicer and the Credit
Enhancer to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of any part of the Collateral, and to vest in them, in that
capacity and for the benefit of the Noteholders and the Credit Enhancer, title
to any part of the Collateral and any rights and obligations the Indenture
Trustee considers appropriate, subject to the other provisions of this
Section. No co-trustee or separate trustee under this Indenture need satisfy
40
the requirements for a successor trustee under Section 6.08, and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.09.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following:
(i) all rights and obligations of the Indenture Trustee
shall be performed by the Indenture Trustee and any separate trustee
or co-trustee jointly (the separate trustee or co-trustee is not
authorized to act without the Indenture Trustee joining in the act),
except to the extent that under any law of any jurisdiction in which
any particular acts are to be performed the Indenture Trustee is
unable to perform the acts, in which case the rights and obligations
(including holding title to any part of the Collateral) shall be
performed singly by the separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee under this Indenture shall be personally
liable for any act or omission of any other trustee under this
Indenture; and
(iii) the Indenture Trustee, the Master Servicer, and
the Issuer may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any notice, request, or other writing given to the Indenture
Trustee shall be considered to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture and the conditions of this Article. Each separate trustee and
co-trustee, on its acceptance of the trusts conferred, shall be subject to
this Indenture and vested with the estates specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as may
be provided in the instrument of appointment. Every instrument of appointment
shall be filed with the Indenture Trustee and a copy of it given to the
Issuer.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee dies, becomes incapable of acting, resigns or is removed, all of
its estates, rights, and obligations shall vest in the Indenture Trustee, to
the extent permitted by law, without the appointment of a new trustee.
Section 6.14. Representations and Warranties of Indenture Trustee.
The Indenture Trustee represents and warrants that on the Closing Date:
(i) it is a corporation duly organized, validly existing,
and in good standing under the laws of its place of incorporation;
(ii) it has full power and authority to execute, deliver, and
perform this Indenture and the Sale and Servicing Agreement, and has
taken all necessary action
41
to authorize the execution, delivery, and performance by it of this
Indenture and the Sale and Servicing Agreement;
(iii) the consummation of the transactions contemplated
by this Indenture and the fulfillment of its terms do not conflict
with, result in any breach of, or constitute (with or without notice
or lapse of time) a default under, the certificate of incorporation
or bylaws of the Indenture Trustee or any agreement or other
instrument to which it is a party or by which it is bound;
(iv) it does not have notice of any adverse claim (as used
in Section 8-302 of the UCC in effect in Delaware) with respect to the
Mortgage Loans;
(v) it satisfies the requirements of Section 6.08; and
(vi) to the Indenture Trustee's best knowledge, no
proceedings or investigations concerning the Indenture Trustee are
pending or threatened before any court, regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over or its properties:
(A) asserting the invalidity of this Indenture,
(B) seeking to prevent the consummation of any of the
transactions contemplated by this Indenture, or
(C) seeking any determination that might affect its
performance of its obligations under this Indenture or the validity
or enforceability of this Indenture.
Article VII
Noteholders' Lists and Reports
Section 7.01. Issuer to Furnish Names and Addresses of Noteholders.
The Issuer will furnish to the Indenture Trustee not more than five
days after each Record Date a list of the names and addresses of the Holders
of Notes as of the Record Date in the form the Indenture Trustee reasonably
requires, and at any other times the Indenture Trustee or Credit Enhancer
requests in writing, within 30 days after the Issuer receives the request, a
list of similar form and content as of a date not more than ten days before
the time the list is furnished. So long as the Indenture Trustee is the Note
Registrar, the Issuer need not furnish these lists.
Section 7.02. Preservation of Information; Communications.
(a) The Indenture Trustee shall preserve the names and addresses of
the Holders of Notes contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.01 and the names and addresses of
Holders of Notes received by the Indenture Trustee in its capacity as Note
Registrar in as current a form as is reasonably practicable. The Indenture
Trustee may destroy any list furnished to it under Section 7.01 on receipt of
a new list so furnished.
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(b) Noteholders may communicate with other Noteholders with respect
to their rights under this Indenture or under the Notes in the manner provided
under TIA Section 312(b).
(c) The Issuer, the Indenture Trustee, and the Note Registrar shall
have the protections provided under TIA Section 312(c).
Section 7.03. Reports of Issuer.
(a) The Issuer shall:
(i) file with the Commission, the Indenture Trustee, and the
Credit Enhancer copies of the annual reports and of the information,
documents, and other reports (or copies of the portions of any of
these the Commission prescribes in its rules and regulations) that
the Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act, within 15 days after the
Issuer is required to file the same with the Commission;
(ii) file with the Indenture Trustee, the Credit Enhancer,
and the Commission in accordance with the Commission's rules and
regulations any additional information, documents, and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture the rules and regulations require; and
(iii) supply to the Indenture Trustee and the Credit
Enhancer summaries of any information, documents, and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii)
of this Section and by the rules and regulations of the Commission
(and the Indenture Trustee shall transmit them by mail to all
Noteholders described in TIA Section 313(c)).
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee.
If required by TIA Section 313(a), within 60 days after the date in
each year specified in the Adoption Annex, beginning with the date specified
in the Adoption Annex, the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) and to the Credit Enhancer a brief report dated
that date that complies with TIA Section 313(a). The Indenture Trustee also
shall comply with TIA Section 313(b). A copy of each report at the time of its
mailing to Noteholders shall be filed by the Indenture Trustee with the
Commission and each securities exchange on which the Notes are listed. The
Issuer shall notify the Indenture Trustee and the Credit Enhancer before the
Notes are listed on any securities exchange.
The Indenture Trustee shall deliver to each Noteholder the
information necessary for the Holder to prepare its federal and State income
tax returns. On each Payment Date, the
43
Indenture Trustee shall make available to each Noteholder, the Master
Servicer, the Credit Enhancer, and each Rating Agency on its Internet website
the statement for Noteholders prepared by the Master Servicer and delivered to
it pursuant to Section 4.04 of the Sale and Servicing Agreement for the
Payment Date.
If the statement for Noteholders is not accessible to any of the
Noteholders, the Master Servicer, the Credit Enhancer, or either Rating Agency
on the Indenture Trustee's internet website, the Indenture Trustee shall
forward a hard copy of it to each Noteholder, the Master Servicer, the Credit
Enhancer, and each Rating Agency immediately after the Indenture Trustee
becomes aware that it is not accessible to any of them via its website. The
address of the Indenture Trustee's internet website where the statement for
Noteholders will be accessible is ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇▇▇▇▇▇.▇▇▇. Assistance in
using the Indenture Trustee's internet website may be obtained by calling the
Indenture Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. The Indenture
Trustee shall notify each Noteholder, the Master Servicer, the Credit
Enhancer, and each Rating Agency in writing of any change in the address or
means of access to the internet website where the statement for Noteholders is
accessible.
The Indenture Trustee shall prepare (in a manner consistent with the
treatment of the Notes as indebtedness of the Transferor, Internal Revenue
Service Form 1099 (or any successor form) and any other tax forms required to
be filed or furnished to Noteholders covering payments by the Indenture
Trustee (or the Paying Agent) on the Notes and shall file and distribute them
as required by law. In addition, the Indenture Trustee shall promptly furnish
any information reasonably requested by the Issuer that is reasonably
available to the Indenture Trustee to enable the Issuer to perform its federal
and state income tax reporting obligations.
Article VIII
Accounts, Disbursements, and Releases
Section 8.01. Accounts.
(a) Pursuant to the Sale and Servicing Agreement, the Master Servicer
has established the Collection Account. The Sale and Servicing Agreement
requires the Master Servicer to deposit specified collections on the Mortgage
Loans into the Collection Account no later than two Business Days before each
Payment Date. The Indenture Trustee shall hold amounts deposited in the
Collection Account as Indenture Trustee for the benefit of the Noteholders and
the Credit Enhancer. The Indenture Trustee shall invest amounts on deposit in
the Collection Account at the direction of the Master Servicer in Eligible
Investments payable on demand or maturing no later than the day before the
next Payment Date. All income realized from investment of funds in the
Collection Account shall be for the benefit of the Master Servicer. If on a
Determination Date the Master Servicer notifies the Indenture Trustee and the
Credit Enhancer of the amount in the Collection Account allocable to
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Interest Collections and Principal Collections for the Mortgage Loans for the
related Payment Date, then the Master Servicer may withdraw from the Collection
Account and retain any amounts that constitute income and gain realized from
the investment of the collections. The Sale and Servicing Agreement requires
the Master Servicer to pay into the Collection Account out of its own funds
immediately as realized any losses of principal on any investments of amounts
in the Collection Account.
(b) Reserved.
Section 8.02. Withdrawals from the Collection Account.
(a) Upon delivery of an Officer's Certificate to the Indenture
Trustee, the Master Servicer may withdraw funds from the Collection Account
for the following purposes:
(i) to pay to the Master Servicer its Servicing Fee to the
extent that it has not been retained pursuant to Section 3.02(b) of
the Sale and Servicing Agreement;
(ii) to pay to the Master Servicer net earnings on amounts on
deposit in the Collection Account as provided in Section 8.01(a); and
(iii) to pay from Principal Collections the amounts
provided for the purchase of Additional Balances pursuant to Section
2.01 of the Sale and Servicing Agreement.
If the Master Servicer deposits in the Collection Account any amount
not required to be deposited or any amount representing payments by mortgagors
made by checks subsequently returned uncollected, it may at any time withdraw
that amount from the Collection Account upon delivery of an Officer's
Certificate to the Indenture Trustee.
(b) Reserved.
(c) Reserved.
Section 8.03. Payments.
(a) Payments of Investor Interest Collections and Investment
Proceeds. On each Payment Date, the Indenture Trustee shall distribute out of
the Collection Account to the extent of Investor Interest Collections
collected during the related Collection Period and the deposit in lieu of
capitalized interest by the Master Servicer pursuant to Section 3.02(b)(ii)(A)
of the Sale and Servicing Agreement, the following amounts and in the
following order of priority to the following persons (based on the information
in the Servicing Certificate):
(i) the premium pursuant to the Insurance Agreement to the
Credit Enhancer;
(ii) the Aggregate Investor Interest for the Notes for the
Payment Date to the Noteholders;
(iii) the Investor Loss Amount for the Notes for the
Payment Date to the Noteholders as principal in reduction of the Note
Principal Balance;
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(iv) the aggregate amount of the Investor Loss Reduction
Amounts for previous Payment Dates that have not been previously
reimbursed to the Noteholders pursuant to this clause (iv) to the
Noteholders as principal in reduction of the Note Principal Balance;
(v) to reimburse the Credit Enhancer for previously
unreimbursed Credit Enhancement Draw Amounts together with interest
on them at the applicable rate in the Insurance Agreement;
(vi) the Accelerated Principal Payment Amount to the
Noteholders as principal in reduction of the Note Principal Balance;
(vii) any amounts owed to the Credit Enhancer pursuant
to the Insurance Agreement to the Credit Enhancer;
(viii) any amounts required to be paid to the Master
Servicer with respect to the Notes pursuant to Sections 3.08 and 5.03
of the Sale and Servicing Agreement that have not been previously
paid to the Master Servicer;
(ix) any Basis Risk Carryforward to the Noteholders; and
(x) any remaining amount to the Issuer for distribution in
accordance with the Trust Agreement.
(b) Payment of Principal Collections. Except on the Payment Date in
the month specified in the Adoption Annex, on each Payment Date, the Indenture
Trustee shall distribute out of the Collection Account to the Holders of the
Notes the Principal Collections up to the Scheduled Principal Collections
Payment Amount but not in excess of the Note Principal Balance. On the Payment
Date in the month specified in the Adoption Annex, the Indenture Trustee shall
distribute to the Holders of the Notes the Principal Collections up to the
Note Principal Balance.
(c) Application of Subordinated Transferor Collections. If, after
applying Investor Interest Collections as provided in Section 8.03(a), any
Required Amount remains unpaid, the Indenture Trustee shall, based on
information in the Servicing Certificate for the Payment Date, apply
Subordinated Transferor Collections, to pay the unpaid Required Amounts. If,
after making those payments the Required Amount remains unpaid, then the
remaining Investor Loss Amount shall be allocated to the Transferor Principal
Balance to the extent of the Available Transferor Subordinated Amount and not
to the Notes. However, no allocation of Investor Loss Amounts shall reduce
Transferor Principal Balance below zero.
(d) Payment of the Credit Enhancement Draw Amount and Release of
Overcollateralization Step-Down Amounts. The Indenture Trustee will make
payments to the Noteholders from the Credit Enhancement Draw Amount (but not
including any portion of it representing a Preference Claim) drawn under the
Policy for any Payment Date pursuant to Section 8.05 on the Payment Date as
follows:
First, as an addition to the amount distributed pursuant to
Section 8.03(a)(ii); and
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Second, the portion of the Credit Enhancement Draw Amount
remaining after the application of the amounts referred to in First
above, as an addition to the amounts distributed pursuant to Section
8.03(b).
The aggregate amount of principal distributed to the Noteholders
under this Indenture shall not exceed the Original Note Principal Balance.
The dollar amount of any Overcollateralization Step-Down Amount will
be deducted from the Scheduled Principal Collections Payment Amount and paid
to the Transferor.
(e) Distributions to Holders of Transferor Certificates. On each
Payment Date, based on the information in the Servicing Certificate for the
Payment Date and subject to Section 8.03(c), the Indenture Trustee shall
distribute to the Issuer (i) the Interest Collections that are not Investor
Interest Collections on the Payment Date for the related Collection Period and
(ii) the portion of Transferor Principal Collections for the related
Collection Period in excess of Additional Balances created on the Mortgage
Loans during the Collection Period. Collections allocable to the Transferor
Certificates will be distributed to the Issuer only to the extent that the
distribution will not reduce the Transferor Interest as of the related Payment
Date below the Minimum Transferor Interest. Amounts not distributed to the
Issuer because of this limitation will be retained in the Collection Account
until the Transferor Interest exceeds the Minimum Transferor Interest, at
which time the excess shall be released to the Issuer. If any such amounts are
still retained in the Collection Account at the commencement of the Rapid
Amortization Period, they will be paid to the Noteholders as a reduction of
the Note Principal Balance.
Section 8.04.Calculation of the Note Rate.
On the second LIBOR Business Day preceding each Payment Date, the
Indenture Trustee shall determine LIBOR for the Interest Period commencing on
the Payment Date and inform the Master Servicer (at the facsimile number given
to the Indenture Trustee in writing) of the rate. On each Determination Date,
the Indenture Trustee shall determine the applicable Note Rate on the related
Payment Date.
Section 8.05. Claims on the Policy; Policy Payments Account.
(a) If the Credit Enhancement Draw Amount from the Servicing
Certificate for a Payment Date is more than zero (determined as of the close
of business on the third Business Day before the Payment Date), then the
Indenture Trustee shall notify the Credit Enhancer by telephone or telecopy of
the Credit Enhancement Draw Amount. The notice shall be confirmed to the
Credit Enhancer in writing in the form of the Notice of Nonpayment and Demand
for Payment of Insured Amounts in Exhibit A to the Policy, by 10:00 a.m., New
York City time, on the second Business Day before the Payment Date. Following
receipt by the Credit Enhancer of the notice in that form, the Credit Enhancer
will pay any amount
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payable under the Policy in the form on the later to occur of (i) 12:00 noon,
New York City time, on the second Business Day following the receipt and (ii)
12:00 noon, New York City time, on the Payment Date to which the deficiency
relates.
(b) The Indenture Trustee shall establish the Policy Payments
Account. The Indenture Trustee shall deposit any amount paid under the Policy
in the Policy Payments Account and distribute the amount only to pay Holders
of the Notes the Guaranteed Payment for which a claim was made. No payments
under the Policy may be used to pay any costs, expenses, or liabilities of the
Master Servicer, the Indenture Trustee, or the Trust (other than payments of
principal and interest on the Notes). Amounts paid under the Policy shall be
transferred to the Collection Account in accordance with the next paragraph
and disbursed by the Indenture Trustee to Holders of the Notes in accordance
with Section 8.03. Payments from draws on the Policy need not be made by
checks or wire transfers separate from the checks or wire transfers used to
pay other funds paid to Noteholders on the Payment Date. The portion of any
payment of principal of or interest on the Notes paid from funds transferred
from the Policy Payments Account, however, shall be noted in the statement to
be furnished to Holders of the Notes pursuant to Section 7.04. Funds held in
the Policy Payments Account shall not be invested.
On any Payment Date (or the day on which a payment on the Policy is
received, if later) for which a claim has been made under the Policy, the
amount of any funds received by the Indenture Trustee as a result of any claim
under the Policy, to the extent required to make the Guaranteed Payment on the
Notes on the Payment Date, shall be withdrawn from the Policy Payments Account
and deposited in the Collection Account and applied by the Indenture Trustee,
together with the other funds to be withdrawn from the Collection Account
pursuant to Section 8.03, directly to the payment in full of the Guaranteed
Payment. Any funds remaining in the Policy Payments Account on the first
Business Day following the later of the Payment Date and the Business Day
after the day on which a payment on the Policy has been paid to the Holders of
the Notes shall be remitted to the Credit Enhancer, pursuant to the
instructions of the Credit Enhancer, by the end of the Business Day.
(c) The Indenture Trustee shall keep a complete and accurate record
of the amount of interest and principal paid on any Note from moneys received
under the Policy. The Credit Enhancer may inspect the records at reasonable
times during normal business hours on one Business Day's notice to the
Indenture Trustee.
(d) The Indenture Trustee shall promptly notify the Credit Enhancer
of any Preference Claim of which a Responsible Officer has actual knowledge.
Each Noteholder by its purchase of Notes, the Master Servicer, and the
Indenture Trustee agree that the Credit Enhancer may at any time during the
continuation of any proceeding relating to a Preference Claim direct all
matters relating to the Preference Claim, including (i) the direction of any
appeal of any order relating to the Preference Claim and (ii) the posting of
any surety, supersedeas, or performance bond pending any appeal. In addition
and without limiting the
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foregoing, the Credit Enhancer shall be subrogated to the rights of
the Master Servicer, the Indenture Trustee, and each Noteholder in the conduct
of any the Preference Claim, including all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with
any the Preference Claim.
Section 8.06. Replacement Policy.
If a Credit Enhancer Default occurs or if the claims-paying ability
rating of the Credit Enhancer is downgraded, the Depositor may substitute new
surety bonds for the existing Policy so long as (i) the new rating of the
Notes would be an improvement over their then current rating, (ii) the new
surety bond will qualify as a "similar commercially available credit
enhancement contract" within the meaning of Treas. Reg. ss.
1.1001-3(e)(4)(iv)(B) and (iii) the Rating Agency Condition is satisfied. No
new credit enhancement may be substituted, however, unless the Indenture
Trustee receives a legal opinion, acceptable in form and substance to the
Indenture Trustee, from counsel to the provider of the new credit enhancement
with respect to its enforceability and any other matters the Indenture Trustee
reasonably requires. Within five Business Days after the Indenture Trustee
takes physical possession of the new credit enhancement and the opinion of
counsel, it will deliver the replaced Policy to the Credit Enhancer. Any other
form of credit enhancement may also be substituted for the Policy after a
Credit Enhancer Default or downgrade if the new rating of the Notes would be
an improvement over their then current rating and the Indenture Trustee
receives an Opinion of Counsel to the effect that the substitution will not be
treated as a significant modification within the meaning of Treas. Reg. ss.
1.1001-3.
Article IX
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with the
consent of the Credit Enhancer (which shall not be unreasonably withheld) and
with prior notice to each Rating Agency, subject to Section 9.06, the Issuer
and the Indenture Trustee may enter into indentures supplemental to this
Indenture, in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any property
subject to the lien of this Indenture, or to confirm unto the
Indenture Trustee any property subject or required to be subjected
to the lien of this Indenture, or to subject additional property to
the lien of this Indenture;
(ii) to evidence the succession of another person to the Issuer
pursuant to this Indenture, and the assumption by the successor of the
covenants of the Issuer in this Indenture and the Notes in compliance
with the applicable provisions of this Indenture;
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(iii) to add to the covenants of the Issuer, for the benefit of
the Noteholders or the Credit Enhancer, or to surrender any right
conferred on the Issuer in this Indenture;
(iv) to convey, transfer, assign, mortgage, or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity or mistake;
(vi) to correct or supplement any provision in this Indenture or
in any supplemental indenture that may be inconsistent with any other
provision in this Indenture or in any supplemental indenture or the
other Transaction Documents;
(vii) to conform this Indenture to the final prospectus
supplement issued in respect of the Notes, dated February 28, 2003;
(viii) to modify, eliminate, or add to the provisions of this
Indenture as required by any Rating Agency or any other nationally
recognized statistical rating organization to maintain or improve any
rating of the Notes;
(ix) to modify, eliminate, or add to the provisions of this
Indenture to comply with any requirement imposed by the Code;
(x) to modify, eliminate, or add to the provisions of this
Indenture to the extent necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture other provisions
expressly required by the TIA; or
(xi) to provide for the acceptance of the appointment of a
successor trustee under this Indenture and to add to or change any of
the provisions of this Indenture necessary to facilitate the
administration of the trusts under this Indenture by more than one
trustee, pursuant to the requirements of Article VI.
The Indenture Trustee is authorized to join in the execution of any
supplemental indenture and to make any further appropriate agreements and
stipulations that may be contained in it.
(b) Without the consent of any of the Noteholders but with
satisfaction of the Rating Agency Condition (in connection with which the
consent of the Credit Enhancer shall not be unreasonably withheld), subject to
Section 9.06, the Issuer and the Indenture Trustee may enter into indentures
supplemental to this Indenture to change this Indenture in any manner or to
modify the rights of the Noteholders or the Credit Enhancer under this
Indenture except (x) amendments that pursuant to Section 9.02 require the
consent of each affected Noteholder and (y) amendments that adversely affect
in any material respects the interests of any Noteholder.
Section 9.02. Supplemental Indentures with Consent of Noteholders.
No supplemental indenture shall, without the consent of each affected
Noteholder by an Act of the applicable Noteholders delivered to the Issuer and
the Indenture Trustee and without the consent of the Credit Enhancer and
subject to Section 9.06:
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(i) change the date of payment of any installment of
principal or interest on any Note, or reduce its principal amount,
its interest rate, or its redemption price, or change any place of
payment where, or the coin or currency in which, any Note or its
interest is payable;
(ii) impair the right to institute suit for the enforcement
of the provisions of this Indenture requiring the application of
available funds to the payment of any amount due on the Notes after
their due dates (or, in the case of redemption, after the redemption
date), as provided in Article V;
(iii) reduce the percentage of the Outstanding Amount
the consent of the Holders of which is required for any 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 under this Indenture and their consequences or to
direct the liquidation of the Collateral;
(iv) modify any provision of this Section except to increase
any percentage specified in this Indenture or provide that certain
additional provisions of this Indenture or the Transaction Documents
cannot be modified or waived without the consent of the Holder of
each Note affected by it; modify any of the provisions of this
Indenture in a manner affecting the calculation of the amount of any
payment of interest or principal due on any Note on any Payment Date
(including the calculation of any of the individual components of the
calculation) or affect the rights of the Holders of Notes to the
benefit of any provisions for the mandatory redemption of the Notes
contained in this Indenture; or
(v) permit the creation of any lien ranking before or on a
parity with the lien of this Indenture with respect to any part of
the Collateral (except any change in any mortgage's lien status in
accordance with the Sale and Servicing Agreement) or, except as
otherwise permitted or contemplated in this Indenture, terminate the
lien of this Indenture on any property at any time subject to this
Indenture or deprive the Holder of any Note of the security provided
by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and that
determination shall be conclusive on the Holders of all Notes, whether
authenticated and delivered under this Indenture before or after that. The
Indenture Trustee shall not be liable for any determination made in good
faith.
An Act of Noteholders under this Section need not approve the
particular form of any proposed supplemental indenture, but is sufficient if
it approves the substance of the supplemental indenture.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture Trustee
shall mail to the Noteholders to which the supplemental indenture relates a
notice stating in general terms the
51
substance of the supplemental indenture. Any failure of the Indenture Trustee
to mail a notice, or any defect in it, shall not, however, in any way impair
or affect the validity of the supplemental indenture.
Section 9.03. Execution of Supplemental Indentures.
In executing any supplemental indenture permitted by this Article,
the Indenture Trustee may require and, subject to Sections 6.01 and 6.03,
shall be fully protected in relying on an Opinion of Counsel stating that the
execution of the supplemental indenture is authorized or permitted by this
Indenture. The Indenture Trustee may, but need not, enter into any
supplemental indenture that affects the Indenture Trustee's own rights or
obligations under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to this
Indenture, this Indenture shall be changed in accordance with the supplemental
indenture, and the Indenture Trustee, the Issuer, and the Noteholders shall
bound by the supplemental indenture.
Section 9.05. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Indenture Trustee shall, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in the supplemental indenture. If the
Issuer so determines, new Notes so modified as to conform, in the opinion of
the Indenture Trustee and the Issuer, to the supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
Section 9.06. Tax Opinion.
This Indenture may not be amended under this Article or otherwise
unless, in connection with the amendment, an Opinion of Counsel is furnished
to the Indenture Trustee that the amendment will not (i) adversely affect the
status of the Notes as debt; (ii) result in the Trust being taxable at the
entity level; or (iii) result in the Trust being classified as a taxable
mortgage pool (as defined in Section 7701(i) of the Code).
Article X
Redemption of Notes
Section 10.01. Redemption.
(a) The Notes are subject to optional redemption by the Issuer with
the consent of the Credit Enhancer in whole on any Payment Date from the
Payment Date immediately before which the aggregate Note Principal Balance is
less than or equal to 10% of the
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aggregate Original Note Principal Balance. The redemption price for
the Notes shall be the Note Principal Balance plus accrued aggregate Note
Interest through the day before the redemption date plus interest accrued on
the aggregate Unpaid Investor Interest Shortfall, to the extent legally
permissible. No premium or penalty will be payable by the Issuer in any
redemption of the Notes.
(b) The Issuer shall notify the Indenture Trustee of its election to
redeem the Notes not later than the first day of the month preceding the month
of the redemption. The Indenture Trustee shall first notify the Credit
Enhancer and the Master Servicer and then notify the Noteholders by letter
mailed or sent by facsimile transmission not earlier than the 15th day and not
later than the 25th day of the month before the month of the redemption.
Payment on the Notes will only be made on presentation and surrender
of the Notes at the office or agency of the Indenture Trustee specified in the
redemption notice. By the redemption date, the Issuer shall deposit in the
Collection Account in immediately available funds an amount that, when added
to the funds on deposit in the Collection Account that are payable to the
Noteholders, equals the redemption price for the Notes, whereupon all the
Notes called for redemption shall be payable on the redemption date.
(c) On presentation and surrender of the Notes, the Indenture Trustee
shall pay to the Holders of Notes on the redemption date an amount equal to
their redemption price. On the redemption date, the Indenture Trustee shall,
based on the information in the Servicing Certificate for the relevant Payment
Date, withdraw from the Collection Account and remit to the Credit Enhancer
the lesser of (x) the amount available for distribution on the redemption
date, net of the amount needed to pay the redemption price and (y) the unpaid
amounts due to the Credit Enhancer for unpaid premiums and unreimbursed draws
on the Policy (together with interest on them as provided under the Insurance
Agreement).
If all of the Noteholders do not surrender their Notes for final
payment and cancellation by the redemption date, the Indenture Trustee shall
on that date cause the remaining amounts representing the redemption price in
the Collection Account not distributed in redemption to Noteholders to be
withdrawn and credited to the remaining Noteholders by depositing the funds in
a separate escrow account for the benefit of the Noteholders and the Issuer.
(d) Any election to redeem Notes pursuant to Section 10.01(a) shall
be evidenced by an Issuer Order. The Issuer Order shall specify the items
required in the notice of redemption to be mailed to Noteholders. The Issuer
shall notify each Rating Agency of the redemption.
Section 10.02. Form of Redemption Notice.
Notice of redemption under Section 10.01 shall be given by the
Indenture Trustee by first-class mail, postage prepaid, or by facsimile or
other reliable electronic means (promptly
53
confirmed by mail) to each Holder of Notes and to the Credit Enhancer as of
the close of business on the Record Date preceding the redemption date, at the
Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) the amount of interest accrued to the redemption
date;
(iv) the place where Notes are to be surrendered for
payment of the redemption price (which shall be the office or agency
of the Issuer maintained pursuant to Section 3.02); and
(v) that on the redemption date, the redemption price will
become payable on each Note and that interest on the Notes shall
cease to accrue beginning on the redemption date.
Notice of redemption of the Notes shall be given by the Indenture Trustee in
the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect in it, to any Holder of any Note shall not affect
the validity of the redemption of any other Note.
Section 10.03. Notes Payable on Redemption Date.
Following notice of redemption as required by Section 10.02, on the
redemption date the Notes shall become payable at the redemption price and
(unless the Issuer defaults in the payment of the redemption price) no
interest shall accrue on the redemption price for any period after the date to
which accrued interest is calculated for purposes of calculating the
redemption price.
Article XI
Miscellaneous
Section 11.01. Compliance Certificates and Opinions, etc.
(a) Whenever the Issuer requests the Indenture Trustee to take any
action under this Indenture, the Issuer shall furnish to the Indenture Trustee
and the Credit Enhancer (i) an Officer's Certificate stating that any
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and (ii) an Opinion of Counsel stating that in
its opinion any conditions precedent have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of the certificate or
opinion has read the covenant or condition and the definitions in
this Indenture relating to it;
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(ii) a brief statement as to the nature and scope of the
examination or investigation on which the statements or opinions
contained in the certificate or opinion are based;
(iii) a statement that, in the opinion of each signatory, the
signatory has made any examination or investigation necessary for
the signatory to express an informed opinion about whether or not
the covenant or condition has been complied with;
(iv) a statement as to whether, in the opinion of each
signatory, the condition or covenant has been complied with; and
(v) if the signer of the certificate is required to be
Independent, the statement required by the definition of Independent.
(b)
(i) Before the deposit of any Collateral or other property
with the Indenture Trustee that is to be made the basis for the
release of any property subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section
11.01(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee and the Credit Enhancer an Officer's Certificate stating the
opinion of each person signing the certificate as to the fair value
(within 90 days of the deposit) to the Issuer of the Collateral or
other property to be deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate stating the opinion of any
signer as to the matters described in clause (b)(i), the Issuer shall
also deliver to the Indenture Trustee and the Credit Enhancer an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the property to be deposited as the basis of any
release and of all other property made the basis of any release since
the commencement of the then-current calendar year as described in
the certificates delivered pursuant to clause (b)(i) is 10% or more
of the aggregate Outstanding Amount of the Notes, but the certificate
need not be furnished for any securities deposited, if their fair
value to the Issuer as described in the related Officer's Certificate
is less than $25,000 or less than 1% of the then aggregate
Outstanding Amount of the Notes.
(iii) Whenever any property is to be released from the
lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee and the Credit Enhancer an Officer's Certificate
stating the opinion of each person signing the certificate as to the
fair value (within 90 days of the release) of the property proposed
to be released and stating that in the opinion of that person the
proposed release will not impair the security under this Indenture in
contravention of the provisions of this Indenture.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate stating the opinion of any
signer as to the matters described in clause (b)(iii), the Issuer
shall also furnish to the Indenture Trustee and the Credit Enhancer
an Independent Certificate as to the same matters if the fair value
of the
55
property and of all other property released from the lien of
this Indenture since the commencement of the then-current calendar
year, as described in the certificates required by clause (b)(iii)
and this clause (b)(iv), equals 10% or more of the aggregate
Outstanding Amount of the Notes, but the certificate need not be
furnished for any release of property if its fair value as described
in the related Officer's Certificate is less than $25,000 or less
than 1% of the then aggregate Outstanding Amount of the Notes.
(v) Notwithstanding any provision of this Indenture,
the Issuer may, without compliance with the other requirements of
this Section, (A) collect, liquidate, sell, or otherwise dispose of
Collateral as and to the extent permitted by the Transaction
Documents, and (B) make cash payments out of the Collection Account
as and to the extent permitted by the Transaction Documents, so long
as the Issuer delivers to the Indenture Trustee and the Credit
Enhancer every six months, beginning six months after the date of
this Indenture, an Officer's Certificate of the Issuer stating that
all the dispositions of Collateral described in clauses (A) and (B)
that occurred during the preceding six months were in the ordinary
course of the Issuer's business and that their proceeds were applied
in accordance with the Transaction Documents.
Section 11.02. Form of Documents Delivered to Indenture Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified person, all the matters need not be
certified by, or covered by the opinion of, only one person, or be certified
or covered by only one document. One person may certify or give an opinion
with respect to some matters and one or more other persons as to other
matters, and any person may certify or give an opinion as to one matter in one
or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based on a certificate or opinion of counsel insofar as it relates to legal
matters, unless the officer knows, or in the exercise of reasonable care
should know, that with respect to the matters on which the officer's
certificate or opinion is based the certificate or opinion is erroneous. Any
certificate of an Authorized Officer or Opinion of Counsel may be based on a
certificate or opinion of officers of any appropriate party to any of the
Transaction Documents insofar as it relates to factual matters, stating that
the information with respect to the factual matters is in the possession of
the party, unless the person signing knows, or in the exercise of reasonable
care should know, that the certificate or opinion is erroneous.
Where any person is required to deliver two or more documents under
this Indenture, they may, but need not, be consolidated into one document.
If the Issuer is required to deliver any document as a condition of
the granting of any request, or as evidence of its compliance with this
Indenture, the request may be denied or
56
the certification of compliance will be unacceptable if the document is
inaccurate. This provision shall not, however, affect the Indenture Trustee's
right to rely on accuracy of any statement or opinion in any document as
provided in Article VI.
Section 11.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by Noteholders in person or by agents duly
appointed in writing. Except as otherwise expressly provided in this Indenture
the action shall become effective when the instruments are delivered to the
Indenture Trustee and, if expressly required, to the Issuer. The instruments
(and the action embodied in them) are referred to as the "Act" of the
Noteholders signing the instruments. Proof of execution of any instrument or
of a writing appointing an agent for a Noteholder shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any
instrument may be proved by an affidavit of a witness to the execution or the
certificate of any notary public or other person authorized by law to
acknowledge the execution of deeds. Any certificate on behalf of a jural
entity executed by a person purporting to have authority to act on behalf of
the jural entity shall itself be sufficient proof of the authority of the
person executing it to act. The fact and date of the execution by any person
of any instrument may also be proved in any other manner that the Indenture
Trustee deems sufficient.
(c) The Note Register shall prove the ownership of Notes.
(d) Any Act by the Holder of a Note shall bind every Holder of the
same Note and every Note issued on its transfer or in exchange for it or in
lieu of it, in respect of anything done, omitted, or suffered to be done by
the Indenture Trustee or the Issuer in reliance on the Act, whether or not
notation of the action is made on the Note.
Section 11.04. Notices.
Any request, demand, authorization, direction, notice, consent,
waiver, Act, or other action or other documents provided or permitted by this
Indenture to be given to:
(i) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose under this Indenture if given
in writing and delivered by first-class mail, postage prepaid,
overnight courier, personally delivered, or facsimile (followed by
the original by any other means authorized by this Section) to the
Indenture Trustee at its Corporate Trust Office, or
(ii) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose under this Indenture if given
in writing and delivered by
57
first-class mail, postage prepaid, overnight courier, personally
delivered, or facsimile (followed by the original by any other means
authorized by this Section) to the Issuer addressed as provided in the
Adoption Annex or at any other address previously furnished in writing
to the Indenture Trustee by the Issuer; or
(iii) the Credit Enhancer by the Issuer, the Indenture
Trustee, or by any Noteholder shall be sufficient for every purpose
under this Indenture if given in writing and delivered by
first-class mail, postage prepaid, overnight courier, personally
delivered, or facsimile (followed by the original by any other means
authorized by this Section) (unless otherwise specifically provided)
to the Credit Enhancer addressed as provided in the Adoption Annex or
at any other address previously furnished in writing to the Indenture
Trustee by the Credit Enhancer, except that whenever a notice or other
communication to the Credit Enhancer refers to an Event of Default,
Event of Servicing Termination, a claim under the Policy, or with
respect to which failure on the part of the Credit Enhancer to
respond would constitute consent or acceptance, then a copy of the
notice or other communication shall also be sent to the attention of
the General Counsel of the Credit Enhancer and shall be marked to
indicate "URGENT MATERIAL ENCLOSED"; or
(iv) to each Rating Agency by the Issuer or the Indenture
Trustee shall be sufficient for every purpose under this Indenture if
given in writing and delivered by first-class mail, postage prepaid,
overnight courier, personally delivered, or facsimile (followed by
the original by any other means authorized by this Section) to the
parties at the addresses as provided in the Adoption Annex or at any
other address previously furnished in writing to the Indenture
Trustee and the Issuer.
Any consent or waiver under this Indenture or any other Transaction
Document by the Credit Enhancer must be in writing and signed by the Credit
Enhancer to be effective.
Section 11.05. Notices to Noteholders; Waiver.
Where this Indenture provides for notice to Noteholders of any event,
the notice shall be sufficiently given (unless otherwise expressly provided in
this Indenture) if in writing and mailed, first-class, postage prepaid to each
Noteholder affected by the event, at the Holder's address as it appears on the
Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of the notice. Whenever notice to
Noteholders is given by mail, neither the failure to mail the notice nor any
defect in a notice mailed to any particular Noteholder shall affect the
sufficiency of the notice with respect to other Noteholders. Any notice that
is mailed in the manner provided in this Indenture shall conclusively be
presumed to have been duly given.
Where this Indenture provides for notice in any manner, any person
entitled to receive it may waive the notice in writing, either before or after
the event, and the waiver shall be the equivalent of notice. Waivers of notice
by Noteholders shall be filed with the
58
Indenture Trustee but the filing shall not be a condition precedent to the
validity of any action taken in reliance on a waiver.
If it is impractical to mail notice of any event to Noteholders when
the notice is required to be given pursuant to this Indenture because of the
suspension of regular mail service as a result of a strike, work stoppage, or
similar activity, then any manner of giving the notice satisfactory to the
Indenture Trustee shall be considered to be a sufficient giving of the notice.
Where this Indenture provides for notice to each Rating Agency,
failure to give the notice shall not affect any other rights or obligations
created under this Indenture, and shall not under any circumstance constitute
an Incipient Default.
Section 11.06. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes
to the contrary, the Issuer may enter into any agreement with any Holder of a
Note providing for a method of payment, or notice by the Indenture Trustee or
any Paying Agent to the Holder, that is different from the methods provided
for in this Indenture. The agreement may not accelerate the timing or increase
the amount of any payments to the Noteholder; cause any release of or other
change in any Collateral; or affect the timing, amount, or method of any
payments by the Credit Enhancer under the Policy. The Issuer will furnish to
the Indenture Trustee and the Credit Enhancer a copy of each such agreement
and the Indenture Trustee will cause payments to be made and notices to be
given in accordance with them.
Section 11.07. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision of this Indenture that is required to be included in
this Indenture by the Trust Indenture Act, the required provision shall
control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically included in this Indenture
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained in this Indenture.
Section 11.08. Effect of Headings and Table of Contents.
The Article and Section headings and the Table of Contents are for
convenience only and shall not affect the construction of this Indenture.
Section 11.09. Successors and Assigns.
All agreements in this Indenture and the Notes by the Issuer shall
bind its successors and assigns, whether so expressed or not. All agreements
of the Indenture Trustee in this Indenture shall bind its successors, assigns,
co-trustees, and agents.
59
Section 11.10. Separability.
If any provision in this Indenture or in the Notes is invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions of this Indenture and the Notes shall not be affected in
any way.
Section 11.11. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any person, other than the parties to this Indenture and their
successors under this Indenture, the Master Servicer (under Article VIII), the
Credit Enhancer, any person with an ownership interest in the Trust, and the
Noteholders, any benefit or any legal or equitable right under this Indenture.
The Credit Enhancer is a third party beneficiary of this Indenture.
Section 11.12. Legal Holidays.
If the date on which any payment is due is not a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture) payment
need not be made on that date, but may be made on the next Business Day with
the same force as if made on the date on which nominally due, and no interest
shall accrue for the period after the nominal due date.
Section 11.13. Governing Law.
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS THAT
WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
Section 11.14. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be considered an original, but all the counterparts
shall together constitute a single instrument.
Section 11.15. Recording of Indenture.
This Indenture is a Security Agreement under the UCC. If this
Indenture is subject to recording in any appropriate public recording offices,
the recording is to be effected by the Issuer but only at the request and
expense of Noteholders accompanied by an Opinion of Counsel (which may be
counsel to the Indenture Trustee or any other counsel reasonably acceptable to
the Indenture Trustee) to the effect that the recording materially and
beneficially affects the interests of the Noteholders or any other person
secured under this Indenture or the enforcement of any right granted to the
Indenture Trustee under this Indenture.
Section 11.16. No Petition.
The Indenture Trustee, by entering into this Indenture, any Paying
Agent, by accepting its appointment as such, the Issuer, and each Noteholder,
by accepting a Note,
60
hereby covenant that they will not at any time institute against the
Issuer or the Depositor, or join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceedings, or other proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture, or any of the other Transaction Documents. This Section
shall survive the termination of this Indenture.
Section 11.17. Act on Instructions from Credit Enhancer.
Notwithstanding any provision of this Indenture to the contrary, so
long as no Credit Enhancer Default exists, the Credit Enhancer shall at all
times be treated as if it were the exclusive owner of all Notes Outstanding
for the purposes of all approvals, consents, waivers, and the institution of
any action and the direction of all remedies, and the Indenture Trustee shall
act in accordance with the directions of the Credit Enhancer so long as it is
indemnified therefor to its reasonable satisfaction.
Section 11.18. Series Trust; Non-recourse and Subordination.
(a) The Trust is a series trust pursuant to Sections 3804 and
3806(b)(2) of the Statutory Trust Statute, and each series shall be a separate
series of the Trust within the meaning of Section 3806(b)(2) of the Statutory
Trust Statute. As such, this Indenture is entered into only with respect to
the series of the Trust referred to in the Adoption Annex and the debts,
liabilities, obligations, and expenses incurred, contracted for, or otherwise
existing with respect to the series referred to in the Adoption Annex shall be
enforceable against the assets of the series referred to in the Adoption Annex
only, and not against the assets of the Trust generally, or the assets of any
other series.
(b) The Issuer and each Noteholder, by its acceptance of its Note,
agree that the indebtedness represented by the Notes is non-recourse to the
Issuer, and is payable solely from the assets of the series referred to in the
Adoption Annex and their proceeds. If any other assets of the Issuer are for
any reason made subject to any claim on account of the indebtedness
represented by the Notes notwithstanding Section 11.18(a), then solely as to
those claims against assets of the Issuer that are not the assets of the
series referred to in the Adoption Annex, the Issuer and each Noteholder, by
its acceptance of its Note, agree that the indebtedness represented by the
Notes and the payment of the principal and/or interest on the Notes as they
relate to those other assets is subordinated in right of payment to the prior
payment in full of any other indebtedness of the Issuer.
Section 11.19. Trust Obligation.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee, or the Indenture Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection this Indenture, against (i) the Indenture Trustee or the Owner
Trustee in its individual capacity, (ii) any owner of a
61
beneficial interest in the Issuer, or (iii) any partner, owner, beneficiary,
agent, officer, director, employee, or agent of the Indenture Trustee
or the Owner Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee, or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in
its individual capacity. For all purposes of this Indenture, in the
performance of any obligations of the Issuer under this Indenture, the Owner
Trustee shall be subject to, and entitled to the benefits of, Article VI, VII,
and VIII of the Trust Agreement.
62
In Witness Whereof, the parties to this Indenture have caused this
Indenture to be duly executed by their officers, thereunto duly authorized,
all as of the day and year first above written.
CWABS MASTER TRUST
By: Wilmington Trust Company,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
Bank One, National Association
not in its individual capacity but
solely as Indenture Trustee,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
63
EXHIBIT A
FORM OF NOTES
CWABS MASTER TRUST
REVOLVING HOME EQUITY LOAN ASSET BACKED NOTE
SERIES 2003-B
-------------------------------------------------------------------------------
Registered Principal Amount: $[___________]
-------------------------------------------------------------------------------
No. [____] Percentage Interest: [__]%
-------------------------------------------------------------------------------
CUSIP No. [_______] Initial Payment Date: [___________]
-------------------------------------------------------------------------------
Note Rate: Variable
-------------------------------------------------------------------------------
Unless this Note is presented by an authorized representative of the
Depository to the Issuer or its agents for registration of transfer, exchange,
or payment, and any Note issed in exchange for this Note is registered in the
name of the Depository or in another name requested by an authorized
representative of the Depository (and any payment on this Note is made to the
Depository or to another entity requested by an authorized representative of
the Depository), any transfer, pledge, or other use of this Note for value or
otherwise by or to any person is wrongful inasmuch as the registered owner of
this Note, the Depository, has an interest in this Note.
The Issuer, CWABS Master Trust, for the Series 2003-B Subtrust,
promises to pay to CEDE & CO. or registered assigns the Principal Amount,
payable on each Payment Date in an amount equal to the Percentage Interest of
the aggregate amount payable from the Collection Account as principal on the
Notes pursuant to Section 8.03 of the Indenture, dated as of February 28, 2003
(the "Indenture"), between the Issuer and Bank One, National Association, as
Indenture Trustee. The entire remaining outstanding principal balance of this
Note is payable on the Payment Date in April 2029. Capitalized terms used in
this Note that are not otherwise defined have the meanings given to them in
the Indenture, and if not defined there, in the Sale and Servicing Agreement,
and if not defined there, in the Master Trust Agreement (the "Master Trust
Agreement") or the Series 2003-B Trust Supplement (the "Series Supplement" and
together with the Master Trust Agreement, the "Agreement"), each between the
Issuer and Wilmington Trust Company, as Owner Trustee.
Interest will be paid on the 15th day of each month or if that is not
a Business Day, then on the next Business Day (the "Payment Date"), commencing
on the first Payment Date specified above, to the person in whose name this
Note is registered at the close of business on the last day preceding the
Payment Date (the "Record Date") at the Note Rate. Interest will be computed
on the basis of the actual number of days in the Interest Period and a 360-day
year. The "Note Rate" is a per annum rate equal to 1.64875% for the first
Interest
A-1
Period, and for any subsequent Interest Period, a per annum rate
equal to the least of: (i) the sum of (a) LIBOR as of the second LIBOR
Business Day before the first day of the Interest Period and (b) 0.31%, (ii)
the Maximum Rate for the Notes for the Interest Period, and (iii) 16.00%. The
"Maximum Rate" for any Interest Period is the Weighted Average Net Loan Rate
for the Mortgage Loans for the Collection Period during which the Interest
Period begins (adjusted to an effective rate reflecting accrued interest
calculated on the basis of the actual number of days in the Collection Period
commencing in the month in which the Interest Period commences and a year
assumed to consist of 360 days). "LIBOR" for any day means the rate for United
States dollar deposits for one month that appears on the Moneyline Telerate
Screen Page 3750 as of 11:00 a.m., London time that day. If LIBOR does not
appear on that page (or a page replacing that page on that service or, if that
service is no longer offered, any other service for displaying LIBOR or
comparable rates reasonably selected by the Depositor after consultation with
the Indenture Trustee), the rate will be the reference bank rate. The
reference bank rate for an Interest Period means the arithmetic mean (rounded
upwards to the nearest one sixteenth of a percent) of the offered rates for
United States dollar deposits offered by three major banks engaged in
transactions in the London interbank market, selected by the Depositor after
consultation with the Indenture Trustee, as of 11:00 a.m., London time, on the
second LIBOR Business Day before the first day of the Interest Period, to
prime banks in the London interbank market for a period of one month in
amounts approximately equal to the outstanding Note Principal Balance if at
least two of the banks provide an offered rate. If fewer than two offered
rates are quoted, the reference bank rate will be the arithmetic mean of the
rates quoted by one or more major banks in New York City, selected by the
Depositor after consultation with the Indenture Trustee, as of 11:00 a.m., New
York City time, on the second LIBOR Business Day before the first day of the
Interest Period, for loans in U.S. dollars to leading European banks for a
period of one month in amounts approximately equal to the outstanding Note
Principal Balance. If no such quotations can be obtained, the reference bank
rate shall be LIBOR for the preceding Interest Period. "LIBOR Business Day"
means any day other than of a Saturday, a Sunday, or a day on which banking
institutions in the State of New York or in the City of London, England are
required or authorized by law to be closed.
This Note is one of the Notes from a duly authorized issue of Notes
issued by CWABS Master Trust, for the Series 2003-B Subtrust, designated as
Revolving Home Equity Loan Asset Backed Notes, Series 2003-B.
Payments on this Note will be made by the Indenture Trustee, or by
the Paying Agent appointed pursuant to the Indenture, by check mailed to the
person entitled thereto as its name and address appears on the Note Register
or, upon written request by the person delivered to the Indenture Trustee at
least five Business Days before the related Record Date, by wire transfer (but
only if the person owns of record Notes having principal denominations
aggregating at least $1,000,000), or by any other means of payment the person
and the
A-2
Indenture Trustee agree to. Notwithstanding the above, the final payment
on this Note will be made after due notice by the Indenture Trustee or
the Paying Agent, and only upon presentation and surrender of this Note at the
office or agency appointed by the Indenture Trustee for that purpose.
This Note does not purport to summarize the Indenture and reference
is made to the Indenture for the rights and obligations under it.
The Transferor, the Depositor, and the Noteholders intend that the
Notes will be indebtedness for federal, State, and local income and franchise
tax purposes and for purposes of any other tax imposed on or measured by
income. The Depositor, the Indenture Trustee, and the Holder (or beneficial
owner) of this Note by acceptance of this Note (or by acquiring its beneficial
interest in this Note) agrees to treat the Notes, for purposes of federal,
State, and local income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness secured by the Collateral and to report
the transactions contemplated by the Indenture on all applicable tax returns
in a manner consistent with that treatment. Each Holder of this Note agrees
that it will cause any beneficial owner acquiring an interest in this Note
through it to comply with the Indenture as to treatment as indebtedness for
federal, State, and local income and franchise tax purposes and for purposes
of any other tax imposed on or measured by income.
Without the consent of the Holders of any Notes but with the consent
of the Credit Enhancer, the Issuer and the Indenture Trustee may amend the
Indenture in certain limited ways. Without the consent of any of the
Noteholders but with satisfaction of the Rating Agency Condition, the Issuer
and the Indenture Trustee may amend the Indenture to change the Indenture in
any manner or to modify the rights of the Noteholders or the Credit Enhancer
under the Indenture except amendments that require the consent of each
affected Noteholder. No supplemental indenture may, without the consent of
each affected Noteholder:
(i) change the date of payment of any installment of
principal or interest on any Note, or reduce its principal amount,
its interest rate, or its redemption price, or change any place of
payment where, or the coin or currency in which, any Note or its
interest is payable;
(ii) impair the right to institute suit for the enforcement
of the provisions of the Indenture requiring the application of
available funds to the payment of any amount due on the Notes after
their due dates (or, in the case of redemption, after the redemption
date);
(iii) reduce the percentage of the Outstanding Amount
the consent of the Holders of which is required for any supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of the Indenture or
certain defaults under the Indenture and their consequences or to
direct the liquidation of the Collateral;
A-3
(iv) modify any provision of the Section of the Indenture
covering indenture supplements only with the consent of affected
Noteholders except to increase any percentage specified in the
Indenture or provide that certain additional provisions of the
Indenture or the Transaction Documents cannot be modified or waived
without the consent of the Holder of each Note affected by it; modify
any of the provisions of the Indenture in a manner affecting the
calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of
the individual components of the calculation) or affect the rights of
the Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained in the Indenture; or
(v) permit the creation of any lien ranking before or on a
parity with the lien of the Indenture with respect to any part of the
Collateral (except any change in any mortgage's lien status in
accordance with the Sale and Servicing Agreement) or, except as
otherwise permitted or contemplated in the Indenture, terminate the
lien of the Indenture on any property at any time subject to the
Indenture or deprive the Holder of any Note of the security provided
by the lien of the Indenture.
As provided in the Indenture, the transfer of this Note is
registrable in the Note Register of the Note Registrar on surrender of this
Note for registration of transfer at the office or agency maintained by the
Note Registrar for that purpose, accompanied by a written instrument of
transfer in form satisfactory to the Master Servicer, the Indenture Trustee,
and the Note Registrar duly executed by its Holder or the Holder's attorney
duly authorized in writing, and thereupon new Notes of authorized
denominations and evidencing the same aggregate Percentage Interest of the
Notes will be issued to the designated transferees. The Notes are issuable
only as registered Notes without coupons in denominations specified in the
Indenture. As provided in the Indenture, Notes are exchangeable for new Notes
of like tenor in authorized denominations and evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any registration of transfer or
exchange, but the Indenture Trustee or the Note Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Before due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee, and any agent of the Issuer or the Indenture
Trustee may treat the person in whose name this Note is registered as its
owner for all purposes, whether or not this Note is overdue, and none of the
Issuer, the Indenture Trustee, or any such agent shall be affected by notice
to the contrary.
The Transferor may effect an early retirement of the Notes by paying
the retransfer price and accepting retransfer of the Trust Assets on any
Payment Date after the Note Principal Balance of the Notes is less than or
equal to 10% of the Original Note Principal Balance.
A-4
Each Holder or beneficial owner of a Note, by acceptance of a Note
or, in the case of a beneficial owner of a Note, a beneficial interest in a
Note, agrees by accepting the benefits of the Indenture that will not at any
time institute against the Depositor, the Sponsor, the Master Servicer, or the
Issuer, or join in any institution against any of them of, any bankruptcy,
reorganization, arrangement, insolvency , or liquidation proceedings under any
United Stated federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture, or the Transaction
Documents.
Anything in this Note to the contrary notwithstanding, none of
Wilmington Trust Company in its individual capacity, Bank One, National
Association, in its individual capacity, any owner of a beneficial interest in
the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees, or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the obligations under the Indenture. The holder of this Note
by its acceptance of this Note agrees that the holder shall have no claim
against any of the foregoing for any deficiency, loss, or claim. Nothing
contained in this Note shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer in the Series 2003-B Subtrust for any
obligations under the Indenture or in this Note.
The Issuer is a series trust pursuant to Sections 3804 and 3806(b)(2)
of the Statutory Trust Statute, and each series shall be a separate series of
the Issuer within the meaning of Section 3806(b)(2) of the Statutory Trust
Statute. As such, the Indenture and this Note are entered into only with
respect to Series 2003-B and the debts, liabilities, obligations, and expenses
incurred, contracted for, or otherwise existing with respect to Series 2003-B
shall be enforceable against the assets of Series 2003-B only, and not against
the assets of the Issuer generally, or the assets of any other series.
The Issuer and each Noteholder, by its acceptance of its Note, agree
that the indebtedness represented by the Notes is non-recourse to the Issuer,
and is payable solely from the assets of Series 2003-B and their proceeds. If
any other assets of the Issuer are for any reason made subject to any claim on
account of the indebtedness represented by the Notes notwithstanding this
paragraph, then solely as to those claims against assets of the Issuer that
are not the assets of Series 2003-B, the Issuer and each Noteholder, by its
acceptance of its Note, agree that the indebtedness represented by the Notes
and the payment of the principal and interest on the Notes as they relate to
those other assets is subordinated in right of payment to the prior payment in
full of any other indebtedness of the Issuer.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS THAT WOULD
RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
A-5
Unless the certificate of authentication on this Note has been
executed by or on behalf of the Indenture Trustee, by manual or facsimile
signature, this Note shall not be entitled to any benefit under the Indenture,
or be valid for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
Dated:
Wilmington Trust Company
not in its individual capacity but solely
as Owner Trustee on behalf of the Trust
By: ____________________________
Certificate of Authentication:
This is one of the Notes referenced
in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION
By: ________________________
Authorized Officer
A-6
Annex 1
DEFINITIONS
"Accelerated Principal Payment Amount" for any Payment Date means the
amount of Investor Interest Collections applied on that Payment Date as a
payment of principal to decrease the Note Principal Balance until the
difference between the Note Principal Balance and the Loan Balance is an
amount equal to the Required Transferor Subordinated Amount for the Payment
Date.
"Act" has the meaning specified in Section 11.03(a).
"Additional Balance" as to any Mortgage Loan means the aggregate
amount of all additional borrowings by the mortgagor under the relevant Credit
Line Agreement after the Cut-off Date for the Mortgage Loan.
"Adjustment Date" for any Interest Period, the second LIBOR Business
Day preceding the first day of the Interest Period.
"Administration Agreement" means the Administration Agreement
specified in the Adoption Annex.
"Administrator" means the person acting as such under the
Administration Agreement.
"Adoption Annex" means Annex 2 to this Indenture.
"Aggregate Investor Interest" for any Payment Date means the Note
Interest for the Payment Date and the Unpaid Investor Interest Shortfall
(other than any Basis Risk Carryforward) for the Payment Date plus, to the
extent legally permissible, interest at the related Note Rate.
"Alternative Principal Payment" for any Payment Date means the excess
of the Principal Collections for the Payment Date over the aggregate of
Additional Balances created during the related Collection Period.
"Asset Balance" on any day for any Mortgage Loan other than a
liquidated mortgage loan means its Cut-off Date Asset Balance, plus (i) any
Additional Balance for the Mortgage Loan, minus (ii) all collections credited
as principal against the Asset Balance of the Mortgage Loan in accordance with
the related Credit Line Agreement. A liquidated mortgage loan is any Mortgage
Loan that as of the end of the related Collection Period the Master Servicer
has determined in accordance with the servicing standards in the Sale and
Servicing Agreement that all liquidation proceeds that it expects to recover
on the Mortgage Loan or the related Mortgaged Property have been recovered.
"Assignment of Mortgage" for any mortgage means an assignment, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the
▇▇▇-1-1
jurisdiction in which the related Mortgaged Property is located to
reflect the sale of the mortgage to the Trust, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction.
"Authorized Officer" means, for any corporation or other entity
establishing such designations, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, Executive Vice President, any
Vice President, the Secretary, or the Treasurer of the corporation, for any
partnership, any of its general partners, and for any person, any person who
is identified on a list of Authorized Officers delivered by the person to the
Indenture Trustee on the Closing Date. These lists may be updated from time to
time.
"Available Investor Interest" for any Payment Date means the sum of
the following amounts, but in each case only to the extent they will be
available to be applied to make payments pursuant to Section 8.03(a)(ii) on
the Payment Date:
(i) the amount of Investor Interest Collections on
deposit in the Collection Account as of the close of business on the
third Business Day preceding the Payment Date,
(ii) the funds to be deposited into the Collection
Account as a single deposit on the Business Day preceding the Payment
Date in accordance with Section 3.02(b) of the Sale and Servicing
Agreement, as reported by the Master Servicer to the Credit Enhancer
in the Servicing Certificate delivered on the preceding Determination
Date, and
(iii) the amount on deposit in the Collection Account
for the Payment Date as of the close of business on the preceding
Determination Date for optional advances by the Master Servicer made
pursuant to Section 4.03 of the Sale and Servicing Agreement, and
(iv) the amount of the Subordinated Transferor
Collections on deposit in the Collection Account on the third
Business Day preceding the Payment Date.
"Available Transferor Subordinated Amount" for any Payment Date means
the lesser of the Transferor Principal Balance and the Required Transferor
Subordinated Amount for the Payment Date.
"Basis Risk Carryforward" for any Payment Date and Interest Period
for which the related Note Rate has been determined pursuant to the Weighted
Average Net Loan Rate means the excess of (a) the amount of interest that
would have accrued on the Notes during the related Interest Period had
interest been determined pursuant to the Interest Formula Rate over (b) the
interest actually accrued at the related Note Rate on the Notes during the
Interest Period. Basis Risk Carryforward will not be included in interest
payments on the Notes for the Payment Date and will accrue interest at the
Interest Formula Rate (as adjusted from time
▇▇▇-1-2
to time) and will be paid on future Payment Dates only to the extent funds are
available therefor under Section 8.03(a)(ix).
"Billing Cycle" for any Mortgage Loan and Collection Period means the
billing period specified in the related Credit Line Agreement and with respect
to which amounts billed are received during the Collection Period.
"Business Day" means any day other than a Saturday, a Sunday, or a
day on which banking institutions in New York, California, or Illinois are
authorized or obligated by law, regulation, or executive order to remain
closed.
"Closing Date" means the Closing Date stated in the Adoption Annex.
"Code" means the Internal Revenue Code of 1986 and Treasury
regulations promulgated under the Code.
"Collateral" has the meaning given to it in the Granting Clause.
"Collection Account" means the account so designated established by
the Master Servicer pursuant to the Sale and Servicing Agreement.
"Collection Period" for any Payment Date and any Mortgage Loan means
the calendar month preceding the month of the Payment Date (or, in the case of
the first Collection Period, the period from the Cut-off Date through the date
specified in the Adoption Annex).
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business is
administered specified in the Adoption Annex, or at any other address the
Indenture Trustee designates by notice to the Noteholders and the Issuer, or
the principal corporate trust office of any successor Indenture Trustee at the
address designated by the successor Indenture Trustee by notice to the
Noteholders and the Issuer.
"Credit Enhancement Draw Amount" for any Payment Date means an amount
equal to the sum of:
(x) the excess of the Aggregate Investor Interest over the Available
Investor Interest, plus
(y) the Guaranteed Principal Payment Amount, plus
(z) any Preference Amount (as defined in the Policy) to be
paid pursuant to the terms of the Policy on the Payment Date.
"Credit Enhancer" means the Credit Enhancer identified in the
Adoption Annex.
"Credit Enhancer Default" means the failure by the Credit Enhancer to
make a payment required under the Policy in accordance with its terms.
▇▇▇-1-3
"Credit Limit" means the maximum Asset Balance for each Mortgage Loan
permitted under the terms of the related Credit Line Agreement.
"Credit Line Agreement" means the related credit line account
agreement for a Mortgage Loan executed by the related mortgagor and any
amendment or modification of it.
"Custodial Agreement" means the Custodial Agreement specified in the
Adoption Annex.
"Cut-off Date" means the Cut-off Date specified in the Adoption Annex.
"Cut-off Date Asset Balance" for any Mortgage Loan acquired by the
Trust on the Closing Date means its unpaid principal balance as of the Cut-off
Date.
"Cut-off Date Loan Balance" means the Loan Balance calculated as of
the Cut-off Date.
"Depositor" means CWABS, Inc., a Delaware corporation, or its
successor in interest.
"Depository" means a financial institution or other person
maintaining ownership records and effecting book-entry transfers and pledges
of the Notes deposited with it pursuant to an agreement with the Issuer. The
Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the UCC of the State of New York.
"Determination Date" for any Payment Date means the third Business
Day before the Payment Date.
"Eligible Account" means
(a) an account that is maintained with a depository institution whose
debt obligations throughout the time of any deposit in it have one of the two
highest short-term debt ratings by Standard and Poor's and the highest
short-term debt rating by Moody's,
(b) an account with a depository institution having a minimum
long-term unsecured debt rating of "AA-" by Standard & Poor's and "Baa3" by
Moody's, which accounts are fully insured by either the Savings Association
Insurance Fund or the Bank Insurance Fund of the Federal Deposit Insurance
Corporation,
(c) a segregated trust account maintained with the Indenture Trustee
or an affiliate of the Indenture Trustee in its fiduciary capacity, or
(d) an account otherwise acceptable to each Rating Agency and the
Credit Enhancer, as evidenced at closing by delivery of a rating letter by
each Rating Agency and thereafter by delivery of a letter from
(i) each Rating Agency to the Indenture Trustee, within
30 days of receipt of notice of the deposit, to the effect that the
deposit will not cause the Rating Agency to reduce or withdraw its
then-current rating of the Notes (without regard to the Policy) and
▇▇▇-1-4
(ii) from the Credit Enhancer to the Indenture Trustee,
within 30 days of receipt of notice of the deposit, to the effect
that the account is acceptable to it.
"Eligible Investments" means
(a) obligations of, or guaranteed as to principal and interest by,
the United States or any U.S. agency or instrumentality that is backed by the
full faith and credit of the United States;
(b) general obligations of or obligations guaranteed by any State
receiving the highest long-term debt rating of each Rating Agency, or any
lower rating that will not result in a downgrade or withdrawal of the rating
then assigned to the Notes by any Rating Agency (without regard to the
Policy);
(c) commercial paper issued by Countrywide Home Loans, Inc. or any of
its affiliates if it is rated no lower than A-1 by Standard & Poor's and P-2
by Moody's, and the long-term debt of Countrywide Home Loans, Inc. is rated at
least A3 by Moody's, or any lower ratings that will not result in a downgrade
or withdrawal of the rating then assigned to the Notes by any Rating Agency
(without regard to the Policy);
(d) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower ratings that will not result in a downgrade or withdrawal of the
rating then assigned to the Notes by any Rating Agency (without regard to the
Policy);
(e) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or any State and subject to supervision
and examination by federal or State banking authorities, if the commercial
paper or long term unsecured debt obligations of the depository institution or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of the holding company, but only if ▇▇▇▇▇'▇ is not a Rating
Agency) are then rated in one of the two highest long-term and the highest
short-term ratings of each Rating Agency for the securities, or any lower
ratings that will not result in a downgrade or withdrawal of the rating then
assigned to the Notes by any Rating Agency (without regard to the Policy);
(f) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(g) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation that, at the time of the issuance of the
agreements, will not result in a downgrade or withdrawal of the rating then
assigned to the Notes by any Rating Agency (without regard to the Policy);
(h) repurchase obligations with respect to any security described in
clauses (a) and (b) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (e)
above;
▇▇▇-1-5
(i) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of its face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any State that, at the time of the
investment, have one of the two highest ratings of each Rating Agency (except
if the Rating Agency is Moody's, the rating must be the highest commercial
paper rating of Moody's for the securities), or any lower ratings that will
not result in a downgrade or withdrawal of the rating then assigned to the
Notes by any Rating Agency (without regard to the Policy) as evidenced by a
signed writing delivered by each Rating Agency;
(j) interests in any money market fund that, at the date of
acquisition of the interests in the fund and throughout the time the interests
are held in the fund, have the highest applicable rating by each Rating
Agency, or any lower ratings that will not result in a downgrade or withdrawal
of the rating then assigned to the Notes by any Rating Agency (without regard
to the Policy);
(k) short term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United States
or any State that ,on the date of acquisition, have been rated by each Rating
Agency in their respective highest applicable rating category, or any lower
ratings that will not result in a downgrade or withdrawal of the rating then
assigned to the Notes by any Rating Agency (without regard to the Policy); and
(l) any other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to each Rating Agency that
will not result in a downgrade or withdrawal of the rating then assigned to
the Notes by any Rating Agency (without regard to the Policy), as evidenced by
a signed writing delivered by each Rating Agency;
No Eligible Investment may evidence either the right to receive (a)
only interest on the obligations underlying these instruments or (b) both
principal and interest payments from obligations underlying these instruments
where the interest and principal payments on the instruments provide a yield
to maturity at par greater than 120% of the yield to maturity at par of the
underlying obligations. No Eligible Investment may be purchased at a price
greater than par if that instrument may be prepaid or called at a price less
than its purchase price before stated maturity.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Grant" means mortgage, pledge, bargain, warrant, alienate, remise,
release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇ on and a Security
Interest in and a right of set-off against, deposit, set over, and confirm
pursuant to the Indenture. A Grant of the Collateral or of any other agreement
or instrument includes all rights (but none of the
▇▇▇-1-6
obligations) of the granting party under the agreement or instrument, including
the immediate and continuing right after an Event of Default to claim for,
collect, receive, and give receipt for principal and interest payments on the
Collateral and all other moneys payable on the Collateral, to require the
repurchase of Mortgage Loans, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights, 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 regarding the Collateral.
"Guaranteed Payment" for any Payment Date means the sum of (i) the
Guaranteed Principal Payment Amount plus (ii) the amount to be distributed to
the Holders of the Notes pursuant to Section 8.03(a)(ii) for the Payment Date.
"Guaranteed Principal Payment Amount"
o for the Notes
o on their Scheduled Maturity Date,
o means the excess of the outstanding Note Principal
Balance (after giving effect to Interest Collections
allocable and distributable as principal on the Notes on
the Payment Date) over the sum of the amounts on deposit
in the Collection Account available to be distributed to
the Holders pursuant to Section 8.03(b);
o on any Payment Date on or before the Available Transferor
Subordinated Amount first increases to zero,
o means, if the Available Transferor Subordinated Amount
for that Payment Date is less than the highest Available
Transferor Subordinated Amount for any preceding Payment
Date, is the amount of the excess of the highest
Available Transferor Subordinated Amount for any
preceding Payment Date over the Available Transferor
Subordinated Amount for the current Payment Date;
o on any Payment Date after the Available Transferor Subordinated
Amount has first increased to zero,
o means, if the Available Transferor Subordinated Amount
has been reduced to zero or below, the excess of the
Note Principal Balance (after giving effect to the
distributions of Interest Collections and Principal
Collections that are allocable to principal on the Notes
on the Payment Date) over the Loan Balance (at the end
of the related Collection Period); and
o for the Notes on any other Payment Date means zero.
▇▇▇-1-7
"Holder" or "Noteholder" means the person in whose name a Note is
registered in the Note Register.
"Incipient Default" means any occurrence that is, or with notice or
lapse of time or both would become, an Event of Default.
"Indenture" means this Indenture.
"Indenture Trustee" means the Indenture Trustee identified in the
Adoption Annex, as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"Independent" means that a person (a) is in fact independent of the
Issuer, any other obligor on the Notes, the Transferor, and any affiliate of
any of them, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any other obligor on the Notes, the
Transferor, or any affiliate of any of them, and (c) is not connected with the
Issuer, any other obligor on the Notes, the Transferor, or any affiliate of
any of them as an officer, employee, promoter, underwriter, trustee, partner,
director, or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee made by an Independent appraiser or other
expert appointed by an Issuer Order and approved by the Indenture Trustee in
the exercise of reasonable care, and the opinion or certificate states that
the Issuer has read the definition of "Independent" in this Indenture and that
the signer is Independent.
"Insolvency Event" regarding a specified person means
(a) the person generally fails to pay its debts as they become due or
admits in writing its inability to pay its debts generally as they become due;
(b) the person has a decree or order for relief by a court having
jurisdiction in the premises entered against it or any substantial part of its
property in an involuntary case under any applicable bankruptcy, insolvency,
or other similar law and the decree or order remains unstayed and in effect
for a period of 60 days;
(c) the person has a conservator, receiver, liquidator, assignee,
custodian, trustee, sequestrator, or similar official appointed for it or for
all or any substantial part of its property and the decree or order remains
unstayed and in effect for a period of 60 days;
(d) the person's business is ordered to be wound-up or liquidated and
the decree or order remains unstayed and in effect for a period of 60 days; or
(e) the person commences a voluntary case under any applicable
bankruptcy, insolvency, or other similar law, or consents to the entry of an
order for relief in an involuntary case under any such law, or consents to the
entry of an order for relief in an involuntary case under any such law, or
consents to the appointment of or taking possession
▇▇▇-1-8
by a conservator, receiver, liquidator, assignee for the benefit of creditors,
a custodian, trustee, sequestrator, or similar official for the person or for
all or any substantial part of its property, or the person makes any general
assignment for the benefit of creditors.
"Insurance Agreement" means the insurance and indemnity agreement
identified in the Adoption Annex.
"Interest Collections" for any Payment Date means the sum of all
payments effected by mortgagors of Mortgage Loans and any other amounts
constituting interest collected by the Master Servicer under the Mortgage
Loans during the related Collection Period plus any optional advance made by
the Master Servicer pursuant to Section 4.03 of the Sale and Servicing
Agreement for which the Master Servicer has not been reimbursed minus the
Servicing Fee for the related Collection Period. These amounts include any net
liquidation proceeds and net proceeds from any insurer pursuant to any
insurance policy covering a Mortgage Loan allocable to interest on the
applicable Mortgage Loan. These amounts exclude any fees (including annual
fees) or late charges or similar administrative fees paid by the mortgagors.
The related Credit Line Agreement shall determine the portion of each payment
on the Mortgage Loan that constitutes principal or interest. Net liquidation
proceeds are liquidation proceeds net of insurance policy recoveries and
out-of-pocket expenses (exclusive of overhead) that are incurred by the Master
Servicer in connection with the liquidation of any Mortgage Loan.
"Interest Formula Rate" means the lesser of the rates in clauses (i)
and (iii) of the definition of Note Rate.
"Interest Period" for the first Payment Date means the period
beginning on the Closing Date and ending on the day preceding the first
Payment Date and for any other Payment Date means the period beginning on the
preceding Payment Date and ending on the day before the Payment Date.
"Investor Fixed Allocation Percentage" is calculated as provided in
the Adoption Annex.
"Investor Floating Allocation Percentage" for any Payment Date means
the lesser of 100% and a fraction whose numerator is the Note Principal
Balance and whose denominator is the Loan Balance, calculated as of the
beginning of the related Collection Period.
"Investor Interest Collections" for any Payment Date means the
product of (i) the Interest Collections received during the related Collection
Period and (ii) the Investor Floating Allocation Percentage for the Payment
Date.
"Investor Loss Amount" for any Payment Date means the product of (i)
the Investor Floating Allocation Percentage for the Payment Date and (ii) the
aggregate of the liquidation loss amounts on the Mortgage Loans for the
Payment Date. Liquidation loss amounts for any
▇▇▇-1-9
Payment Date and any Mortgage Loan that becomes a liquidated Mortgage Loan
during the related Collection Period are the unrecovered Asset Balance of the
Mortgage Loan at the end of the Collection Period after reducing the Asset
Balance for the net liquidation proceeds. Net liquidation proceeds are
liquidation proceeds net of insurance policy recoveries and out-of-pocket
expenses (exclusive of overhead) that are incurred by the Master Servicer in
connection with the liquidation of any Mortgage Loan.
"Investor Loss Reduction Amount" for any Payment Date means the
portion of the Investor Loss Amount for all prior Payment Dates that has not
been paid to the Holders of the Notes on the Payment Date pursuant to Section
8.03(a)(iv) or 8.03(a)(v) or by a Credit Enhancement Draw Amount.
"Investor Principal Collections" for any Payment Date means the
related Investor Fixed Allocation Percentage of Principal Collections on the
Mortgage Loans for the Payment Date.
"Issuer" means CWABS Master Trust on for the series subtrust
designated in the Adoption Annex until a successor replaces it and, after
that, means its successor.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"LIBOR" for any day means the rate for United States dollar deposits
for one month that appears on the Moneyline Telerate Screen Page 3750 as of
11:00 a.m., London time that day. If LIBOR does not appear on that page (or a
page replacing that page on that service or, if that service is no longer
offered, any other service for displaying LIBOR or comparable rates reasonably
selected by the Depositor after consultation with the Indenture Trustee), the
rate will be the Reference Bank Rate.
"LIBOR Business Day" means any day other than of a Saturday, a
Sunday, or a day on which banking institutions in the State of New York or in
the City of London, England are required or authorized by law to be closed.
"Loan Balance" for any date means the aggregate of the Asset Balances
of all Mortgage Loans as of the date.
"Loan Rate" for any Mortgage Loan and on any day means the per annum
rate of interest applicable under the related Credit Line Agreement to the
calculation of interest for the day on the Asset Balance of the Mortgage Loan.
"Managed Amortization Period" means the period from the Closing Date
to the Rapid Amortization Commencement Date.
"Master Servicer" means Countrywide Home Loans, Inc., a New York
corporation and any successor.
▇▇▇-1-10
"Maximum Principal Payment" for any Payment Date means the Investor
Fixed Allocation Percentage of the Principal Collections from the Mortgage
Loans for the Payment Date.
"MERS" means Mortgage Electronic Registration Systems, Inc., a
Delaware corporation, or any successor to it.
"MERS(R) System" means the system of recording transfers of mortgages
electronically maintained by MERS.
"MIN" means the Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R) System.
"MOM Loan" means any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of the Mortgage Loan and its
successors and assigns.
"Moneyline Telerate Screen Page 3750" means the display designated as
page 3750 on the Moneyline Telerate Information Services, Inc. (or any page
replacing that page on that service for the purpose of displaying London
inter-bank offered rates of major banks).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in
interest.
A "mortgage" is any conveyance to secure the performance of an
obligation including a deed of trust to secure debt and other comparable
security instruments.
"Mortgage File" for each of the Mortgage Loans means the following
documents:
(i) the original Mortgage Note endorsed in blank or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Sponsor stating that the
original Mortgage Note was lost, misplaced, or destroyed, together
with a copy of the Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment of Mortgage for the Mortgage Loan in
blank in recordable form;
(iii) the original recorded mortgage with evidence of
recording on it (noting the presence of the MIN of the Mortgage Loan
and language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan) or, if the original recorded mortgage
with evidence of recording on it cannot be delivered by the Closing
Date because of a delay caused by the public recording office where
the original mortgage has been delivered for recordation or because
the original mortgage has been lost, a true copy of the mortgage,
together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Sponsor or the
Depositor, which may be a blanket certificate covering more than one
mortgage, stating that the original mortgage has been dispatched to
the appropriate public recording official for recordation or (ii) in
the case of an original mortgage
▇▇▇-1-11
that has been lost, a certificate by the appropriate county recording
office where the mortgage is recorded;
(iv) if applicable, the original of each intervening
assignment needed for a complete chain of title for the mortgage from
its original mortgagee or beneficiary to the Trust (or, if the
Mortgage Loan is registered on the MERS(R) System, to MERS and noting
the presence of a MIN) with evidence of recording on them, or, if any
original intervening assignment has not been returned from the
applicable recording office or has been lost, a true copy of it,
together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Sponsor or the
Depositor, which may be a blanket certificate covering more than one
intervening assignment, stating that the original intervening
assignment has been dispatched to the appropriate public recording
official for recordation or (ii) in the case of an original
intervening assignment that has been lost, a certificate by the
appropriate county recording office where the mortgage is recorded;
(v) a title policy for each Mortgage Loan with a Credit
Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection
with the Mortgage Note;
(vii) the original of each assumption, modification,
consolidation, or substitution agreement relating to the Mortgage
Loan; and
(viii) any security agreement, chattel mortgage, or
equivalent instrument executed in connection with the Mortgage Loan;
An optical image or other representation of a document specified in
clauses (iii) through (viii) above for a Mortgage Loan may be held by the
Indenture Trustee or assignee in lieu of the physical documents specified if
(a) as evidenced by an Opinion of Counsel delivered to and in form
and substance satisfactory to the Indenture Trustee and the Credit Enhancer,
(x) an optical image or other representation of the related
documents specified in clauses (iii) through (viii) above are
enforceable in the relevant jurisdictions to the same extent as the
original of the document and
(y) the optical image or other representation does not
impair the ability of an owner of the Mortgage Loan to transfer its
interest in the Mortgage Loan, and
(b) written confirmation that the retention of the documents in that
format will not result in a reduction in the then current rating of the Notes,
without regard to the Policy. A copy of any Opinion of Counsel shall in each
case be addressed and delivered to the Credit Enhancer.
"Mortgage Loan" means each of the mortgage loans, including
Additional Balances for it, that are transferred to the Trust pursuant to
Section 2.01(a) and (b) of the Sale and Servicing Agreement, together with all
related Mortgage Files, exclusive of Mortgage Loans
▇▇▇-1-12
that are retransferred to the Depositor, the Master Servicer, or the
Sponsor or purchased by the Master Servicer pursuant to Section 2.02, 2.04,
2.06, or 3.06 of the Sale and Servicing Agreement, held as a part of the
Trust. The Mortgage Loans originally so held are identified in the Mortgage
Loan Schedule delivered on the Closing Date. The Mortgage Loans shall also
include any Eligible Substitute Mortgage Loan (as defined in the Sale and
Servicing Agreement) substituted by the Sponsor for a defective Mortgage Loan
pursuant to Sections 2.02 and 2.04 of the Sale and Servicing Agreement.
"Mortgage Loan Schedule" on any date means the schedule of Mortgage
Loans included in the Trust on the date identifying each Mortgage Loan and
specifying the items identified in the Adoption Annex. The initial schedule of
Mortgage Loans as of the Cut-off Date is Exhibit A of the Sale and Servicing
Agreement. The Mortgage Loan Schedule will automatically include any
Additional Balances. The Indenture Trustee is not responsible for preparing
the Mortgage Loan Schedule.
"Mortgage Note" means the Credit Line Agreement for a Mortgage Loan
pursuant to which the related mortgagor agrees to pay the indebtedness
evidenced by it and secured by the related mortgage.
"Mortgaged Property" means the underlying property securing a
Mortgage Loan.
"Note" means any note executed by the Issuer and authenticated by the
Indenture Trustee substantially in the form of Exhibit A.
"Note Interest" for any Payment Date means interest for the related
Interest Period at the applicable Note Rate on the Note Principal Balance as
of the first day of the Interest Period (after giving effect to the
distributions made on the first day of the Interest Period).
"Note Owner" means the beneficial owner of a book-entry Note, as
reflected on the books of the Indenture Trustee as agent for the Depository.
"Note Principal Balance" for any Payment Date means (a) the Original
Note Principal Balance less (b) the aggregate of amounts actually distributed
as principal on the Notes before the Payment Date.
"Note Rate" means the rate specified in the Adoption Annex.
"Note Register" and "Note Registrar" have the meanings specified in
Section 2.03.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer or other specified party under the circumstances
described in, and otherwise complying with, the applicable requirements of
Section 11.01 and delivered to the Indenture Trustee.
"Opinion of Counsel" means written opinions of counsel who may,
except as otherwise expressly provided in this Indenture, be an employee of or
counsel to the Issuer, the Depositor, the Sponsor, the Master Servicer, or the
Transferor (except that any opinion
▇▇▇-1-13
pursuant to Section 8.06 or relating to taxation must be an opinion
of independent outside counsel) and who is reasonably acceptable to the
parties to whom it is to be delivered. The opinions shall be addressed to the
Indenture Trustee as Indenture Trustee, any other designated party, shall
comply with any applicable requirements of Section 11.01, and shall be in form
and substance reasonably satisfactory to the parties to whom it is to be
delivered.
"Original Note Principal Balance" means the amount reflected in the
Adoption Annex.
"Outstanding" means, as of the date of determination, all Notes that
have been authenticated and delivered under this Indenture except:
(i) Notes that have been cancelled by the Note
Registrar or delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which
money in the necessary amount has been deposited with the Indenture
Trustee or any Paying Agent in trust for the Noteholders, and if the
Notes are to be redeemed, notice of the redemption has been duly
given pursuant to this Indenture or notice has been provided for in a
manner satisfactory to the Indenture Trustee; and
(iii) Notes in exchange for or instead of which other
Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee is
presented that those Notes are held by a Protected Purchaser.
In determining whether the Holders of the requisite Outstanding
Amount of the Notes have Acted under this Indenture or under any Transaction
Document, Notes owned by the Issuer, the Depositor, or the Transferor, or any
of their affiliates shall be disregarded and treated as not being Outstanding,
except that, in determining whether the Indenture Trustee shall, if the Notes
have first been transferred to a non-affiliate, be protected in relying on any
Act, only Notes that a Responsible Officer knows to be so owned shall be
disregarded. Notes so owned that have been pledged in good faith, or for whose
owner the Issuer, the Depositor, or the Transferor, or any of their affiliates
is acting as trustee or nominee, may be regarded as Outstanding if the pledgee
or other person establishes to the satisfaction of the Indenture Trustee the
pledgee's or other person's right to Act for the Notes and that the pledgee or
other person is not the Issuer, the Depositor, or the Transferor, or any of
their affiliates.
To effectuate the Credit Enhancer's right of subrogation under
Section 4.03, all Notes that have been paid with funds provided under the
Policy shall be Outstanding until the Credit Enhancer has been paid all
amounts due to it pursuant to the Insurance Agreement with respect to those
Notes.
"Outstanding Amount" means the aggregate principal amount of all
Notes that are Outstanding at the date of determination.
"Overcollateralization Step Down Amount" for any Payment Date means
the lesser of (i) the Scheduled Principal Collections Payment Amount without
the reduction for the
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current Overcollateralization Step Down Amount and (ii) the excess of the
Available Transferor Subordinated Amount over the Required Transferor
Subordinated Amount for the Payment Date.
"Paying Agent" means the Indenture Trustee or any other person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.08 and is authorized by the Issuer to make payments to and distributions
from the Collection Account, including payments of principal or interest on
the Notes on behalf of the Issuer.
"Payment Date" means the day of each month specified in the Adoption
Annex, or if that is not a Business Day, then the next Business Day.
"Policy" means the note guaranty insurance policy identified in the
Adoption Annex and all its endorsements, dated as of the Closing Date, issued
by the Credit Enhancer to the Indenture Trustee for the benefit of the
Noteholders.
"Policy Payments Account" means a separate special purpose trust
account that is an Eligible Account, for the benefit of Holders of the Notes
and the Credit Enhancer over which the Indenture Trustee has exclusive control
and sole right of withdrawal.
"Preference Claim" means any proceeding or the institution of any
action seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, or similar law of any distribution made
with respect to the Notes (other than Basis Risk Carryforward).
"Principal Collections" for any Payment Date means the sum of all
payments effected by the mortgagors and any other amounts constituting
principal collected by the Master Servicer under the Mortgage Loans during the
related Collection Period. These amounts include any net liquidation proceeds
and net proceeds from any insurer pursuant to any insurance policy covering a
Mortgage Loan allocable to principal of the applicable Mortgage Loan and
Transfer Deposit Amounts (as defined in the Sale and Servicing Agreement), but
exclude foreclosure profits. The terms of the related Credit Line Agreement
shall determine the portion of each payment on a Mortgage Loan that
constitutes principal or interest. Net liquidation proceeds are liquidation
proceeds net of out-of-pocket expenses (exclusive of overhead) that are
incurred by the Master Servicer in connection with the liquidation of any
Mortgage Loan. Foreclosure profits on a liquidated Mortgage Loan are the
excess of its net liquidation proceeds over the Asset Balance of the Mortgage
Loan before the final recovery on it (plus accrued and unpaid interest thereon
at the applicable Loan Rate from the date interest was last paid to the end of
the Collection Period during which the Mortgage Loan became a liquidated
Mortgage Loan).
"Proceeding" means any suit in equity, action at law, or other
judicial or administrative proceeding.
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"Purchase Agreement" means the Purchase Agreement of even date with
this Indenture between Countrywide Home Loans, Inc., as seller, and the
Depositor, as purchaser, with respect to the Mortgage Loans.
"Rapid Amortization Commencement Date" means the earlier of (i) the
Payment Date in the month specified in the Adoption Annex and (ii) the Payment
Date after the Collection Period in which a Rapid Amortization Event occurs.
"Rapid Amortization Event" has the meaning given to it in Section
5.16.
"Rapid Amortization Period" means the period beginning on the Rapid
Amortization Commencement Date until the termination of the Indenture.
"Rating Agency" means any statistical credit rating agency, or its
successor, that rated the Notes at the request of the Depositor at the time of
the initial issuance of the Notes. If a particular Rating Agency is no longer
in existence, "Rating Agency" will means a statistical credit rating agency,
or other comparable person, designated by the Depositor and the Credit
Enhancer. The Indenture Trustee will be notified of any such designation.
References to the highest short-term unsecured rating category of a Rating
Agency mean A-1+ or better in the case of Standard & Poor's and P-1 or better
in the case of Moody's and in the case of any other Rating Agency mean the
ratings it deems equivalent to these. References to the highest long-term
rating category of a Rating Agency mean "AAA" in the case of Standard & Poor's
and "Aaa" in the case of Moody's and in the case of any other Rating Agency,
the rating it deems equivalent to these.
"Rating Agency Condition" for any action means that each Rating
Agency has been given 10 days (or any shorter period acceptable to each Rating
Agency) notice of the action and that each of the Rating Agencies has notified
the Issuer in writing that the action will not result in a reduction or
withdrawal of its then current rating of the Notes and the Credit Enhancer
consented to the action.
"Record Date" for a Payment Date or redemption date means the close
of business on the day before the Payment Date or redemption date or, if
definitive Notes have been issued, the last day of the preceding month.
"Reference Bank Rate" for an Interest Period means the arithmetic
mean (rounded upwards to the nearest one sixteenth of a percent) of the
offered rates for United States dollar deposits offered by three major banks
engaged in transactions in the London interbank market, selected by the
Depositor after consultation with the Indenture Trustee, as of 11:00 a.m.,
London time, on the second LIBOR Business Day before the first day of the
Interest Period, to prime banks in the London interbank market for a period of
one month in amounts approximately equal to the outstanding Note Principal
Balance if at least two of the banks provide an offered rate. If fewer than
two offered rates are quoted, the Reference Bank Rate will be the arithmetic
mean of the rates quoted by one or more major banks in New
▇▇▇-1-16
York City, selected by the Depositor after consultation with the
Indenture Trustee, as of 11:00 a.m., New York City time, on the second LIBOR
Business Day before the first day of the Interest Period, for loans in U.S.
dollars to leading European banks for a period of one month in amounts
approximately equal to the outstanding Note Principal Balance. If no such
quotations can be obtained, the Reference Bank Rate shall be LIBOR for the
preceding Interest Period.
"Registered Holder" means the person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Required Amount" for any Payment Date means the amount by which the
sum of the amounts distributable pursuant to Sections 8.03(a)(i) through
8.03(a)(iv) on the Payment Date exceed Investor Interest Collections for the
Payment Date.
"Responsible Officer" any officer of the Indenture Trustee with
direct responsibility for the administration of this Indenture and also, with
respect to a particular matter, any other officer to whom a matter is referred
because of the officer's knowledge of and familiarity with the particular
subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
specified in the Adoption Agreement.
"Scheduled Maturity Date" means the date specified in the Adoption
Agreement.
"Scheduled Principal Collections Payment Amount" for any Payment Date
during the Managed Amortization Period means an amount equal to the lesser of
(i) the Maximum Principal Payment and (ii) the Alternative Principal Payment.
For any Payment Date in the Rapid Amortization Period the Scheduled Principal
Collections Payment Amount means the Maximum Principal Payment.
"Securities Act" means the Securities Act of 1933.
"Servicing Certificate" means the certificate delivered each month
pursuant to the Sale and Servicing Agreement to the Indenture Trustee
completed and executed by any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished
to the Indenture Trustee (with a copy to the Credit Enhancer) by the Master
Servicer on the Closing Date, as it may be amended from time to time.
"Servicing Fee" for any Payment Date means the product of (i) the
Servicing Fee Rate specified in the Adoption Annex divided by 12 and (ii) the
Loan Balance as of the first day of the Collection Period preceding the
Payment Date (or as of the close of business on the Cut-off Date for the first
Payment Date).
"Sponsor" means Countrywide Home Loans, Inc., a New York corporation
and any successor.
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"Standard & Poor's" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor in interest.
"State" means any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or the
District of Columbia.
"Subordinated Transferor Collections" means interest collections from
the Mortgage Loans and principal collections allocable to the Transferor
Interest (but not in excess of the Available Transferor Subordinated Amount).
"Transaction Documents" means this Indenture, the Notes, the Sale and
Servicing Agreement, the Purchase Agreement, the Custodial Agreement, the
Administration Agreement, the Trust Agreement, the Policy, and the Insurance
Agreement.
"Transfer Document" means a document substantially in the form of
Exhibit E to the Sale and Servicing Agreement.
"Transferor" means the Holders of the Transferor Certificates.
"Transferor Certificates" means the certificates executed and
authenticated by the Owner Trustee under the Trust Agreement for the subtrust
created by the Trust Supplement under which the Notes are issued.
"Transferor Interest" for any Payment Date means the aggregate
undivided beneficial interest represented by the Transferor Certificate in the
subtrust created by the Trust Supplement under which the Notes are issued,
calculated as the excess of (i) the Loan Balance as of the close of business
on the day before the date of determination over (ii) the Note Principal
Balance on the date of determination (after giving effect to the distribution
of all amounts actually distributed on the Notes on the date of
determination).
"Transferor Principal Balance" as of any date of determination means
the amount equal to (i) the Loan Balance as of the close of business on the
day before the date of determination minus (ii) the Note Principal Balance
reduced by the aggregate of amounts actually distributed as principal on the
Notes through the close of business on the date of determination.
"Transferor Principal Collections" for any Payment Date means
Principal Collections received during the related Collection Period minus the
amount of Principal Collections required to be distributed to Holders of the
Notes pursuant to Section 8.03(b).
"Trust" means the trust specified in the Adoption Annex.
"Trust Agreement" means the Master Trust Agreement between
Countrywide Home Loans, Inc., the Depositor and the Owner Trustee together
with the Trust Supplement.
"Trust Supplement" means the Trust Supplement between the Depositor
and the Owner Trustee establishing the subtrust for the Collateral.
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"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force on the date of this Indenture, unless otherwise specifically
provided.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction, unless the context otherwise requires.
"Unpaid Investor Interest Shortfall" for any Payment Date means the
aggregate amount of Note Interest that was accrued for a prior Payment Date
and has not been distributed to Holders of the Notes.
"Weighted Average Net Loan Rate" for any Collection Period means the
average of the daily Net Loan Rate (specified in the Adoption Annex) for each
Mortgage Loan (assuming that each Mortgage Loan is fully indexed) for each day
during the related Billing Cycle, weighted on the basis of the daily average
of the Asset Balances outstanding for each day in the Billing Cycle for each
Mortgage Loan as determined by the Master Servicer in accordance with the
Master Servicer's normal servicing procedures.
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▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The series referred to in the Granting Clause is the Series 2003-B
Subtrust.
The Indenture Trustee shall issue under Section 2.02(b):
Notes in an aggregate principal amount of $485,000,000.
The "Administration Agreement" is the Administration Agreement of
even date with this Indenture among the Issuer, the Master Servicer, and the
Indenture Trustee.
The "Closing Date" is February 28, 2003.
The last day of the first "Collection Period" is the last day of
March 2003.
The "Corporate Trust Office" of the Indenture Trustee at the date of
execution of this Indenture is located at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services Division.
The "Credit Enhancer" is Financial Guaranty Insurance Company and any
successor or replacement for the Credit Enhancer.
"Custodial Agreement" is the Custodial Agreement of even date with
this Indenture between the Indenture Trustee, the Issuer, the Depositor, and
Treasury Bank, National Association, as custodian.
The "Cut-off Date" is February 21, 2003.
The "Indenture Trustee" is Bank One, National Association, a national
banking association.
The "Insurance Agreement" is the insurance and indemnity agreement of
even date with this Indenture among the Sponsor, the Indenture Trustee, and
the Credit Enhancer.
The "Investor Fixed Allocation Percentage" for any Payment Date will
be calculated as follows: (i) on any date on which the Transferor Principal
Balance is less than the Required Transferor Subordinated Amount, 100%; and
(ii) on any date on which the Transferor Principal Balance equals or exceeds
the Required Transferor Subordinated Amount, 99.50%.
The "Minimum Transferor Interest" is an amount equal to the lesser of
(a) 1.00% of the Loan Balance at the beginning of the immediately preceding
Collection Period and (b) 0.50% of the Original Note Principal Balance.
The "Mortgage Loan Schedule" shall specify for each Mortgage Loan its
(i) account number, (ii) Credit Limit, (iii) gross margin, (iv) lifetime rate
cap, (v) Cut-off Date Asset Balance, (vi) current Loan Rate, (vii) combined
loan-to-value ratio, (viii) code specifying the property type, (ix) code
specifying documentation type, (x) code specifying lien position, and (xi)
code specifying whether the Mortgage Loan is a MOM Loan.
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The "Net Loan Rate" for any Mortgage Loan on any day is the Loan Rate
less (i) the Servicing Fee Rate, (ii) the Premium Percentage defined in the
Insurance Agreement, and (iii) commencing with the Payment Date in March 2004,
0.50% per annum.
The "Note Rate" is a per annum rate equal to 1.64875% for the first
Interest Period, and for any subsequent Interest Period, a per annum rate
equal to the least of: (i) the sum of (a) LIBOR as of the second LIBOR
Business Day before the first day of the Interest Period and (b) 0.31%, (ii)
the Maximum Rate for the Notes for the Interest Period, and (iii) 16.00%.
The "Maximum Rate" for any Interest Period is the Weighted Average
Net Loan Rate for the Mortgage Loans for the Collection Period during which
the Interest Period begins (adjusted to an effective rate reflecting accrued
interest calculated on the basis of the actual number of days in the
Collection Period commencing in the month in which the Interest Period
commences and a year assumed to consist of 360 days).
Notwithstanding the definition of LIBOR in Annex 1, "LIBOR" for the
first Interest Period will be determined by interpolating the rate for one
month deposits and the rate for two month deposits appearing on the Moneyline
Telerate Screen Page 3750 as of 11:00 a.m. on the relevant day.
The "Original Note Principal Balance" of the Notes is $485,000,000.
The "Owner Trustee" is Wilmington Trust Company, or any successor
owner trustee under the Trust Agreement.
The "Payment Date" is the fifteenth day of each calendar month, or,
if that day is not a Business Day, the next Business Day commencing in April
2003.
The "Policy" is the note guaranty insurance policy number 03030003
issued by the Credit Enhancer.
The Payment Date referred to in the definition of "Rapid Amortization
Commencement Date" is the Payment Date in March 2008.
The percentage of the aggregate of the Original Note Principal
Balance that the aggregate of all draws under the Policy would exceed to
result in a "Rapid Amortization Event" under Section 5.16(g) is 1.000%.
The "Required Transferor Subordinated Amount" has the meaning in the
Insurance Agreement.
The "Sale and Servicing Agreement" is the Sale and Servicing
Agreement of even date with this Indenture among the Sponsor, the Depositor,
the Trust, and the Indenture Trustee.
The "Scheduled Maturity Date" is the Payment Date in April 2029.
The "Servicing Fee Rate" is 0.50% per annum.
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The "Trust" is the CWABS Master Trust, a Delaware statutory trust
established pursuant to the Master Trust Agreement, dated as of August 28,
2000, between Countrywide Home Loans, Inc., the Depositor and Wilmington Trust
Company.
The date in each year by which the Issuer will furnish an Opinion of
Counsel pursuant to Section 3.06(b) is September 30 beginning in 2004.
The first year after which an annual compliance statement pursuant to
Section 3.09 is due is 2004.
The date in each year by which the Indenture Trustee will furnish
reports pursuant to Section 7.04 is March 15 beginning in 2004.
The Payment Date referred to in Section 8.03(b) is the Payment Date
in April 2029.
Addresses for notices under Section 11.04 are:
For the Issuer at:
CWABS Master Trust
Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration;
For the Credit Enhancer at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Research and Risk Management, CWABS, Inc.
Series 2003-B
For the Rating Agencies at:
in the case of Standard & Poor's:
Standard & Poor's,
a division of The McGraw Hill Companies, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and in the case of Moody's,
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The series referred to in Section 11.18 is the Series 2003-B Subtrust.
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