EXHIBIT 4.1
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RENAISSANCE HOME EQUITY LOAN TRUST [o]
Issuer
[o]
Indenture Trustee
and
[o]
Securities Administrator
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INDENTURE
Dated as of [o]
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HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES [o]
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TABLE OF CONTENTS
SECTION
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...............................................................................
Section 1.02. Incorporation by Reference of Trust Indenture Act.........................................
Section 1.03. Rules of Construction.....................................................................
ARTICLE II
ORIGINAL ISSUANCE OF THE NOTES
Section 2.01. Form......................................................................................
Section 2.02. Execution, Authentication and Delivery....................................................
Section 2.03. Acceptance of Mortgage Loans by Indenture Trustee.........................................
Section 2.04. Acceptance of the Interest Rate Cap Agreements by Owner Trustee...........................
ARTICLE III
COVENANTS
Section 3.01. Collection of Payments with respect to the Mortgage Loans; Investment of Accounts.........
Section 3.02. Maintenance of Office or Agency...........................................................
Section 3.03. Money for Payments To Be Held in Trust; Paying Agent......................................
Section 3.04. Existence.................................................................................
Section 3.05. Payment of Principal and Interest.........................................................
Section 3.06. Protection of Collateral..................................................................
Section 3.07. Opinions as to Collateral.................................................................
Section 3.08. Performance of Obligations................................................................
Section 3.09. Negative Covenants........................................................................
Section 3.10. [Reserved.]...............................................................................
Section 3.11. [Reserved.]...............................................................................
Section 3.12. Representations and Warranties Concerning the Mortgage Loans..............................
Section 3.13. Amendments to Servicing Agreement.........................................................
Section 3.14. Servicer as Agent and Bailee of the Indenture Trustee.....................................
Section 3.15. Investment Company Act....................................................................
Section 3.16. Issuer May Consolidate, etc...............................................................
Section 3.17. Successor or Transferee...................................................................
Section 3.18. No Other Business.........................................................................
Section 3.19. No Borrowing..............................................................................
Section 3.20. Guarantees, Loans, Advances and Other Liabilities.........................................
Section 3.21. Capital Expenditures......................................................................
Section 3.22. Reserved..................................................................................
Section 3.23. Restricted Payments.......................................................................
Section 3.24. Notice of Events of Default...............................................................
Section 3.25. Further Instruments and Acts..............................................................
Section 3.26. Statements to Noteholders.................................................................
Section 3.27. [Reserved]................................................................................
Section 3.28. Certain Representations Regarding the Trust...............................................
Section 3.29. Allocation of Realized Losses.............................................................
Section 3.30. [Reserved]................................................................................
Section 3.31. The Class A-1A Interest Rate Cap Agreement................................................
Section 3.32. The Class N Interest Rate Cap Agreement...................................................
ARTICLE IV
THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.01. The Notes.................................................................................
Section 4.02. Registration of and Limitations on Transfer and Exchange of Notes; Appointment of Note
Registrar and Certificate.................................................................
Section 4.03. Mutilated, Destroyed, Lost or Stolen Notes................................................
Section 4.04. Persons Deemed Owners.....................................................................
Section 4.05. Cancellation..............................................................................
Section 4.06. Book-Entry Notes..........................................................................
Section 4.07. Notices to Depository.....................................................................
Section 4.08. Definitive Notes..........................................................................
Section 4.09. Tax Treatment.............................................................................
Section 4.10. Satisfaction and Discharge of Indenture...................................................
Section 4.11. Application of Trust Money................................................................
Section 4.12. Derivative Contracts for Benefit of the Certificates......................................
Section 4.13. Repayment of Monies Held by Paying Agent..................................................
Section 4.14. Temporary Notes...........................................................................
Section 4.15. Representation Regarding ERISA............................................................
Section 4.16. Transfer Restrictions for Class N Notes...................................................
ARTICLE V
DEFAULT AND REMEDIES
Section 5.01. Events of Default.........................................................................
Section 5.02. Acceleration of Maturity; Rescission and Annulment........................................
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.................
Section 5.04. Remedies; Priorities......................................................................
Section 5.05. Optional Preservation of the Collateral...................................................
Section 5.06. Limitation of Suits.......................................................................
Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest.....................
Section 5.08. Restoration of Rights and Remedies........................................................
Section 5.09. Rights and Remedies Cumulative............................................................
Section 5.10. Delay or Omission Not a Waiver............................................................
Section 5.11. Control By Noteholders....................................................................
Section 5.12. Waiver of Past Defaults...................................................................
Section 5.13. Undertaking for Costs.....................................................................
Section 5.14. Waiver of Stay or Extension Laws..........................................................
Section 5.15. Sale of Trust.............................................................................
Section 5.16. Action on Notes...........................................................................
Section 5.17. Performance and Enforcement of Certain Obligations........................................
ARTICLE VI
THE INDENTURE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 6.01. Duties of Indenture Trustee and the Securities Administrator..............................
Section 6.02. Rights of Indenture Trustee and Securities Administrator..................................
Section 6.03. Individual Rights of Indenture Trustee and Securities Administrator.......................
Section 6.04. Indenture Trustee's and Securities Administrator's Disclaimer.............................
Section 6.05. Notice of Event of Default................................................................
Section 6.06. Reports by Securities Administrator to Holders and Tax Administration.....................
Section 6.07. Compensation and Indemnity................................................................
Section 6.08. Replacement of Indenture Trustee or Securities Administrator..............................
Section 6.09. Successor Indenture Trustee or Securities Administrator by Merger.........................
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........................
Section 6.11. Eligibility; Disqualification.............................................................
Section 6.12. Preferential Collection of Claims Against Issuer..........................................
Section 6.13. Representations and Warranties............................................................
Section 6.14. Directions to Indenture Trustee and Securities Administrator..............................
Section 6.15. The Agents................................................................................
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer To Furnish Securities Administrator Names and Addresses of Noteholders.............
Section 7.02. Preservation of Information; Communications to Noteholders................................
Section 7.03. Reports of Issuer.........................................................................
Section 7.04. Reports by Securities Administrator.......................................................
Section 7.05. Statements to Noteholders.................................................................
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money.......................................................................
Section 8.02. Trust Accounts............................................................................
Section 8.03. Officer's Certificate.....................................................................
Section 8.04. Termination Upon Payment to Noteholders...................................................
Section 8.05. Release of Collateral.....................................................................
Section 8.06. Surrender of Notes Upon Final Payment.....................................................
Section 8.07. Optional Redemption of the Notes..........................................................
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders....................................
Section 9.02. Supplemental Indentures With Consent of Noteholders.......................................
Section 9.03. Execution of Supplemental Indentures......................................................
Section 9.04. Effect of Supplemental Indenture..........................................................
Section 9.05. Conformity with Trust Indenture Act.......................................................
Section 9.06. Reference in Notes to Supplemental Indentures.............................................
ARTICLE X
MISCELLANEOUS
Section 10.01. Compliance Certificates and Opinions, etc.................................................
Section 10.02. Form of Documents Delivered to Indenture Trustee..........................................
Section 10.03. Acts of Noteholders.......................................................................
Section 10.04. Notices etc., to Indenture Trustee, Securities Administrator, Issuer and Rating Agencies..
Section 10.05. Notices to Noteholders; Waiver............................................................
Section 10.06. Conflict with Trust Indenture Act.........................................................
Section 10.07. Effect of Headings........................................................................
Section 10.08. Successors and Assigns....................................................................
Section 10.09. Separability..............................................................................
Section 10.10. [Reserved.]...............................................................................
Section 10.11. Legal Holidays............................................................................
Section 10.12. GOVERNING LAW.............................................................................
Section 10.13. Counterparts..............................................................................
Section 10.14. Recording of Indenture....................................................................
Section 10.15. Issuer Obligation.........................................................................
Section 10.16. No Petition...............................................................................
Section 10.17. Inspection................................................................................
Section 10.18. No Recourse to Owner Trustee..............................................................
Section 10.19. Proofs of Claim...........................................................................
EXHIBITS
Exhibit A Forms of Offered Notes and Class N Notes
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Initial Certification
Exhibit C-2 Form of Final Certification
Exhibit D-1 Class A-1A Interest Rate Cap Agreement
Exhibit D-2 Class N Interest Rate Cap Agreement
Exhibit E Form of Custodial Agreement
Exhibit F-1 Form of Transferor Certificate for Transfers of Class N Notes
Exhibit F-2 Form of Transferee Certificate for Transfers of the Class N Notes
(Including ERISA Certification)
Exhibit G-1 Form of Transfer Certificate for Transfer from Restricted Global Security to Regulation S
Global Security
Exhibit G-2 Form of Transfer Certificate for Transfer from Regulation S Global Security to Restricted
Global Security
Appendix A Definitions
This Indenture, dated as of [o], is entered into among Renaissance Home
Equity Loan Trust [o], a Delaware statutory trust, as Issuer (the "Issuer"),
[o], as Indenture Trustee (the "Indenture Trustee") and [o], as Securities
Administrator (the "Securities Administrator").
WITNESSETH THAT:
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Issuer's Home Equity
Loan Asset-Backed Notes, Series [o] (the "Notes").
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
trustee for the benefit of the Holders of the Notes, all of the Issuer's right,
title and interest in and to whether now existing or hereafter created by (a)
the Mortgage Loans, Eligible Substitute Mortgage Loans and the proceeds thereof
and all rights under the Related Documents; (b) all funds on deposit from time
to time in the Collection Account allocable to the Mortgage Loans excluding any
investment income from such funds; (c) all funds on deposit from time to time in
the Payment Account and in all proceeds thereof; (d) all rights under (i) the
Mortgage Loan Sale and Contribution Agreement as assigned to the Issuer, (ii)
the Servicing Agreement, (iii) any title, hazard and primary insurance policies
with respect to the Mortgaged Properties and (iv) the rights with respect to the
Class A-1A Interest Rate Cap Agreement and the Class N Interest Rate Cap
Agreement and (e) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under,
and all proceeds of every kind and nature whatsoever in respect of, any or all
of the foregoing and all payments on or under, and all proceeds of every kind
and nature whatsoever in the conversion thereof, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, checks, deposit accounts, rights to payment of any
and every kind, and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Grant, accepts the trust under this Indenture in accordance
with the provisions hereof and agrees to perform its duties as Indenture Trustee
as required herein.
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions attached hereto as Appendix A which is
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act (the
"TIA"), the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rules
and have the meanings assigned to them by such definitions.
Section 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular; and
(vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORIGINAL ISSUANCE OF THE NOTES
Section 2.01. FORM. The Notes, together with the Securities
Administrator's certificate of authentication, shall be in substantially the
form set forth in Exhibit A to this Indenture, respectively, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders).
The terms of the Notes set forth in Exhibit A to this Indenture are
part of the terms of this Indenture. To the extent the Notes and the terms of
the Indenture are inconsistent, the terms of the Indenture shall control.
Section 2.02. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Securities Administrator shall upon Issuer Request authenticate
and deliver the Notes for original issue in an aggregate initial principal
amount of $[o]. The Notes shall have the following Initial Note Balances:
Class A-1A
Class A-1F
Class A-2
Class A-3
Class A-4
Class A-5
Class F-6
Class M-1
Class M-2
Class M-3
Class M-4
Class M-5
Class M-6
Class M-7
Class M-8
Class M-9
Class M-10
Class N
Each of the Notes shall be dated the date of its authentication. The
Notes shall be issuable as registered Notes and the Notes shall be issuable in
the minimum initial Note Balances of $25,000 and in integral multiples of $1 in
excess thereof; provided that Offered Notes must be purchased in minimum total
investments of $100,000 per Class.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Securities Administrator by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.03. ACCEPTANCE OF MORTGAGE LOANS BY INDENTURE TRUSTEE.
(a) The Indenture Trustee acknowledges receipt of, subject to the
exceptions it notes pursuant to the procedures described below, the documents
(or certified copies thereof) referred to in Section 2.1(b) of the Mortgage Loan
Sale and Contribution Agreement, and declares that it or the Custodian holds and
will continue to hold those documents and any amendments, replacements or
supplements thereto and all other assets of the Trust as Indenture Trustee in
trust for the use and benefit of all present and future Holders of the Notes.
On the Closing Date or no later than the 45th day following the
Closing Date, the Indenture Trustee or the Custodian on behalf of the Indenture
Trustee shall certify to the Seller, the Depositor and the Servicer (and the
Indenture Trustee if the Custodian is so certifying) that it has reviewed each
Mortgage File and that, as to each Mortgage Loan listed in the related Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in the certification in the form annexed hereto as
Exhibit C-1 as not covered by such certification), (i) all documents
constituting part of such Mortgage File required to be delivered to it pursuant
to paragraphs (i) - (v) and (vii) of Section 2.1(b) of the Mortgage Loan Sale
and Contribution Agreement are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan, (iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule which corresponds to items
(ii) and (iii) of the definition of "Mortgage Loan Schedule" accurately reflects
information set forth in the Mortgage File. If within such 45-day period the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee finds any
document constituting a part of a Mortgage File not to have been executed or
received or to be unrelated to the Mortgage Loans identified in said Mortgage
Loan Schedule or, if in the course of its review, the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee determines that such Mortgage File
is otherwise defective in any material respect, the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee shall promptly upon the conclusion
of its review notify the Seller in the form of an exception report and the
Seller shall have a period of ninety (90) days after such notice within which to
correct or cure any such defect.
On the 360th day following the Closing Date, the Indenture Trustee or
the Custodian on behalf of the Indenture Trustee shall deliver to the Seller and
the Servicer an exception report showing the documents outstanding pursuant to
Section 2.1(b) of the Mortgage Loan Sale and Contribution Agreement along with a
final certification annexed hereto as Exhibit C-2 updated from the previous
certification issued in the form of Exhibit C-1. The Indenture Trustee or the
Custodian on behalf of the Indenture Trustee shall also maintain records
adequate to determine the date on which any document required to be delivered to
it after such 360th day following the Closing Date must be delivered to it, and
on each such date, the Indenture Trustee or the Custodian on behalf of the
Indenture Trustee shall review the related Mortgage File to determine whether
such document has, in fact, been delivered. After the delivery of the final
certification, a form of which is attached hereto as Exhibit C-2, (i) the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall
provide to the Servicer and the Seller (and to the Indenture Trustee if
delivered by the Custodian), no less frequently than monthly, updated exception
reports showing the documents outstanding pursuant to Section 2.1(b) of the
Mortgage Loan Sale and Contribution Agreement until all such exceptions have
been eliminated and (ii) the Seller shall provide to the Indenture Trustee or
the Custodian on behalf of the Indenture Trustee and the Servicer, no less
frequently than monthly, updated certifications indicating the then current
status of exceptions until all such exceptions have been eliminated; PROVIDED
that the delivery of the final certification shall not act as a waiver of any of
the rights the Noteholders may have with respect to such exceptions, and all
rights are reserved with respect thereto.
Neither the Indenture Trustee nor the Custodian makes any
representations as to, and shall not be responsible to verify, (i) the validity,
sufficiency, legality, due authorization, recordation or genuineness of any
document or (ii) the collectability, insurability or effectiveness of any of the
Mortgage Loans.
(b) Neither the Indenture Trustee nor the Custodian on behalf of the
Indenture Trustee shall have any responsibility for reviewing any Mortgage File
except as expressly provided in Section 2.02. Without limiting the effect of the
preceding sentence, in reviewing any Mortgage File pursuant to such subsection,
neither the Indenture Trustee nor the Custodian shall have any responsibility
for determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Indenture Trustee is the assignee or endorsee),
whether any document has been recorded in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction, but shall only be required to determine whether a
document has been executed, that it appears to be what it purports to be, and,
where applicable, that it purports to be recorded, but shall not be required to
determine whether any Person executing any document is authorized to do so or
whether any signature thereon is genuine.
The parties hereto understand and agree that it is not intended that
any Mortgage Loan be included in the Trust that is a high-cost home loan as
defined by the Homeownership and Equity Protection Act of 1994 or any other
applicable predatory or abusive lending laws.
Section 2.04. ACCEPTANCE OF THE INTEREST RATE CAP AGREEMENTS BY OWNER
TRUSTEE. The Issuer hereby directs the Owner Trustee to execute and the
Securities Administrator (on behalf of the Owner Trustee) to deliver and perform
the Owner Trustee's obligations under the Class A-1A Interest Rate Cap Agreement
and the Class N Interest Rate Cap Agreement on the Closing Date and thereafter
on behalf of the Holders of the Class A-1A Notes or the Class N Notes. The
Issuer and the Holders of the Class A-1A Notes and the Class N Notes by their
acceptance of such Notes acknowledge and agree that the Owner Trustee shall
execute and the Securities Administrator (on behalf of the Owner Trustee) shall
deliver and perform the Owner Trustee's obligations under the Class A-1A
Interest Rate Cap Agreement and the Class N Interest Rate Cap Agreement and
shall do so solely in its capacity as Owner Trustee or Securities Administrator,
as applicable, and not in its respective individual capacity.
The Owner Trustee acknowledges receipt of the Class A-1A Interest Rate
Cap Agreement and the Class N Interest Rate Cap Agreement and declares that it
holds and will continue to hold these documents and any amendments, replacements
or supplements thereto for the use and benefit of all present and future Holders
of the Class A-1A Notes and the Class N Notes. Every provision of this Indenture
affording protection to the Owner Trustee shall apply to the Owner Trustee's
execution of the Class A-1A Interest Rate Cap Agreement and the Class N Interest
Rate Cap Agreement and the performance of its duties and satisfaction of its
obligations thereunder.
ARTICLE III
COVENANTS
Section 3.01. COLLECTION OF PAYMENTS WITH RESPECT TO THE MORTGAGE
LOANS; INVESTMENT OF ACCOUNTS.
(a) The Securities Administrator shall establish with itself, a
separate account (the "Payment Account") titled "[o] as Indenture Trustee, in
trust for the registered holders of Renaissance Home Equity Loan Trust [o] Home
Equity Loan Asset-Backed Notes, Series [o]." The Payment Account shall be an
Eligible Account. The Securities Administrator shall deposit any amounts
representing payments on and any collections in respect of the Mortgage Loans
received by it immediately following receipt thereof, including, without
limitation, all amounts withdrawn by the Servicer from the Collection Account
pursuant to Section 3.03 of the Servicing Agreement for deposit to the Payment
Account. Amounts on deposit in the Payment Account may be invested in Eligible
Investments pursuant to Section 3.01(b). In addition, the Securities
Administrator shall deposit the Initial Deposit in the Payment Account on the
Closing Date. Immediately prior to each Payment Date, the Securities
Administrator shall withdraw from the Payment Account and pay to the Master
Servicer an amount equal to the Master Servicing Fee for such Payment Date and
any unreimbursed Monthly Advances made by the Master Servicer. The Securities
Administrator shall make all payments of principal of and interest on the Notes,
subject to Section 3.03 as provided in Section 3.05 herein from monies on
deposit in the Payment Account.
(b) Consistent with any requirements of the Code, all or a portion of
any Account held by the Securities Administrator shall be invested and
reinvested by the Securities Administrator (in the case of the Payment Account)
or as directed in writing by the Servicer (in the case of the Collection
Account) or the Seller (in the case of any other Account) (the applicable
Person, the "Directing Party"), in one or more Eligible Investments bearing
interest or sold at a discount. If the applicable Directing Party does not
provide investment directions, or if the Directing Party is the Servicer and a
Servicer Event of Default shall have occurred and be continuing, the Securities
Administrator shall invest all Accounts in Eligible Investments described in
paragraph (vi) of the definition of Eligible Investments. No such investment in
any Account shall mature later than the Business Day immediately preceding the
next Payment Date (except that for any such Account other than the Payment
Account (i) if such Eligible Investment is an obligation of the Securities
Administrator or a money market fund for which the Securities Administrator or
any Affiliate is the manager or the advisor, then such Eligible Investment shall
mature not later than such Payment Date and (ii) any other date may be approved
by the Rating Agencies).
(c) If any amounts are needed for disbursement from any Account held
by the Securities Administrator and sufficient uninvested funds are not
available to make such disbursement, the Securities Administrator shall cause to
be sold or otherwise converted to cash a sufficient amount of the investments in
such Account. The Securities Administrator shall not be liable for any
investment loss or other charge resulting therefrom unless the Securities
Administrator's failure to perform in accordance with this Section 3.01(c) is
the cause of such loss or charge.
(d) The Securities Administrator shall not in any way be held liable
by reason of any insufficiency in any Account held by the Securities
Administrator resulting from any investment loss on any Eligible Investment
included therein (except to the extent that the Securities Administrator is the
obligor and has defaulted thereon or as provided in subsection (c) of this
Section 3.01).
(e) The Securities Administrator shall invest and reinvest funds in
the Accounts held by the Securities Administrator, to the fullest extent
practicable, in such manner as the applicable Directing Party shall from time to
time direct as set forth in Section 3.01(b), but only in one or more Eligible
Investments.
(f) So long as no Servicer Event of Default shall have occurred and be
continuing, all net income and gain realized from investment of, and all
earnings on, funds deposited in the Collection Account shall be for the benefit
of the Servicer as Servicing Compensation (in addition to the Servicing Fee),
and shall be subject to withdrawal on or before the first Business Day of the
month following the month in which such income or gain is received. The Servicer
shall deposit in the Collection Account, the amount of any loss incurred in
respect of any Eligible Investment held therein which is in excess of the income
and gain thereon immediately upon realization of such loss, without any right to
reimbursement therefore from its own funds.
(g) All net income and gain realized from investment of, and all
earnings on, funds deposited in the Collection Account shall be for the benefit
of the Servicer for the period from the date of deposit to the Deposit Date, as
Servicing Compensation in addition to the Servicing Fee. All net income and gain
realized from investment of, and all earnings on, funds deposited in the Payment
Account shall be for the benefit of the Securities Administrator for the period
from the Deposit Date to the Payment Date, as compensation. Any such income
shall be subject to withdrawal on or before the first Business Day of the month
following the month in which such income or gain is received. The Securities
Administrator, as applicable, shall deposit in the Payment Account from its own
funds the amount of any loss incurred in respect of any Eligible Investment held
therein which is in excess of the income and gain thereon payable to Securities
Administrator immediately upon the realization of such loss, without any right
to reimbursement therefor.
Section 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain an office or agency where, subject to satisfaction of conditions set
forth herein, Notes may be surrendered for registration of transfer or exchange,
and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially appoints the
Securities Administrator to serve as its agent for the foregoing purposes. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders
may be made at the office designated by the Securities Administrator for such
purpose.
Section 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST; PAYING AGENT. As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Payment Account
pursuant to Section 3.01 shall be made on behalf of the Issuer by the Securities
Administrator or by the Paying Agent, and no amounts so withdrawn from the
Payment Account for payments of Notes shall be paid over to the Issuer except as
provided in this Section 3.03. The Issuer hereby appoints the Securities
Administrator as its Paying Agent.
The Securities Administrator will cause each Paying Agent other than
the Securities Administrator to execute and deliver to the Securities
Administrator an instrument in which such Paying Agent shall agree with the
Securities Administrator (and if the Securities Administrator acts as Paying
Agent it hereby so agrees), subject to the provisions of this Section 3.03, that
such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Securities Administrator notice of any default by the
Issuer of which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of any default described in
(ii) above, upon the written request of the Securities Administrator,
forthwith pay to the Securities Administrator all sums so held in trust by
such Paying Agent;
(iv) immediately resign as Paying Agent and forthwith pay to the
Securities Administrator 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) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; and
(vi) not commence a bankruptcy proceeding against the Issuer in
connection with this Indenture.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Request direct any Paying Agent to pay to the Securities Administrator all sums
held in trust by such Paying Agent, such sums to be held by the Securities
Administrator upon the same trusts as those upon which the sums were held by
such Paying Agent; and upon such payment by any Paying Agent to the Securities
Administrator, such Paying Agent shall be released from all further liability
with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Securities Administrator or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
one year after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer on Issuer Request; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Securities Administrator or such Paying Agent
with respect to such trust money shall thereupon cease; PROVIDED, HOWEVER, that
the Securities Administrator or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to be
published once, in an Authorized Newspaper published in the English language,
notice that such money remains unclaimed and that, after a date specified
therein which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Issuer.
The Securities Administrator may also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in monies due and payable but not
claimed is determinable from the records of the Securities Administrator or of
any Paying Agent, at the last address of record for each such Holder).
Section 3.04. EXISTENCE. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Mortgage Loans and each other
instrument or agreement included in the Trust.
Section 3.05. PAYMENT OF PRINCIPAL AND INTEREST.
(a) On each Payment Date from amounts on deposit in the Payment
Account in accordance with Section 8.02 hereof, the Securities Administrator
shall pay to the Persons specified below, to the extent provided therein, the
Available Funds for such Payment Date.
(b) On each Payment Date the Securities Administrator shall withdraw
from the Payment Account the Available Funds (other than amounts paid under the
Class A-1A Interest Rate Cap Agreement and the Class N Interest Rate Cap
Agreement) and apply such amount in the following order of priority, in each
case, to the extent of the funds remaining:
(i) Concurrently, to the Senior Notes, PRO RATA based on amounts due,
the related Class Interest Payment for the applicable Payment Date; then
(ii) Sequentially, first to the Class M-1 Notes, second to the Class
M-2 Notes, third to the Class M-3 Notes, fourth to the Class M-4 Notes,
fifth to the Class M-5 Notes, sixth to the Class M-6 Notes, seventh to the
Class M-7 Notes, eighth to the Class M-8 Notes, ninth to the Class M-9
Notes and tenth to the Class M-10 Notes, the related Class Monthly Interest
Amount for the applicable Payment Date; then
(iii) To the Senior Notes, the Senior Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount, sequentially, first to the Class A-6 Notes, an
amount equal to the Class A-6 Lockout Payment Amount, and second,
sequentially, first, to the Class A-1A and Class A-1F Notes, PRO RATA,
based on the Class Principal Balance of each such Class, and then to the
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class A-5 and Class A-6 Notes, in that
order, until the respective Class Note Balances of such Classes have been
reduced to zero; provided, however, on any Payment Date on which the
aggregate Note Balance of the Mezzanine Notes has been reduced to zero,
principal payments to the Senior Notes will be made on a PRO RATA basis
based on the Class Note Balance of each such Class; then
(iv) To the Class M-1 Notes, the Class M-1 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(v) To the Class M-2 Notes, the Class M-2 Principal Payment Amount for
the applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
(vi) To the Class M-3 Notes, the Class M-3 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(vii) To the Class M-4 Notes, the Class M-4 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(viii) To the Class M-5 Notes, the Class M-5 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(ix) To the Class M-6 Notes, the Class M-6 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(x) To the Class M-7 Notes, the Class M-7 Principal Payment Amount for
the applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
(xi) To the Class M-8 Notes, the Class M-8 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(xii) To the Class M-9 Notes, the Class M-9 Principal Payment Amount
for the applicable Payment Date, excluding any Subordination Increase
Amount included in that amount; then
(xiii) To the Class M-10 Notes, the Class M-10 Principal Payment
Amount for the applicable Payment Date, excluding any Subordination
Increase Amount included in that amount; then
(xiv) To the Offered Notes, the Subordination Increase Amount for the
applicable Payment Date, allocated in the same order of priority set forth
in clause (3) and clauses (iii) through (xiii) of this Section 3.05(b);
then
(xv) Sequentially, first to the Class M-1 Notes, second to the Class
M-2 Notes, third to the Class M-3 Notes, fourth to the Class M-4 Notes,
fifth to the Class M-5 Notes, sixth to the Class M-6 Notes, seventh to the
Class M-7 Notes, eighth to the Class M-8 Notes, ninth to the Class M-9
Notes and tenth to the Class M-10 Notes, (a) any related Class Interest
Carryover Shortfall, then (b) any related Class Principal Carryover
Shortfall and then (c) any interest accrued on any related Class Principal
Carryover Shortfall; then
(xvi) To the Offered Notes any Basis Risk Shortfall Amounts in the
order and priority described in Section 3.05(c), after taking into account
amounts received under the Class A-1A Interest Rate Cap Agreement; then
(xvii) to the Class N Notes, the Class N Interest Payment Amount for
the related Interest Period; then
(xviii) to the Class N Notes, the Class N Principal Payment Amount, if
any, until such Note Balance is reduced to zero; and then
(xix) to the Owner Trustee, any fees, expenses and indemnities not
otherwise paid and then, to the Holders of the Certificates, any remaining
amounts.
On each Payment Date, all amounts representing (i) Prepayment Charges
in respect of the Mortgage Loans received during the related Prepayment Period
and (ii) amounts received by the Securities Administrator under the Class N
Interest Rate Cap Agreement, shall be withdrawn from the Payment Account and
paid by the Securities Administrator to the Holders of the Class N Notes and
shall not be available for payment to the Holders of any Class of Offered Notes.
(c) On each Payment Date, after making the payments of the Available
Funds as set forth above, the Securities Administrator will determine the amount
of any Basis Risk Shortfalls with respect to the Offered Notes for such Payment
Date and pay such amount in the following order of priority:
(i) first, to the Class A-1A Notes, from amounts paid under the Class
A-1A Interest Rate Cap Agreement for such Payment Date, the related Basis
Risk Shortfall Amount; then
(ii) second, to the Holders of the Certificates, the excess of (x)
amounts paid under the Class A-1A Interest Rate Cap Agreement and (y)
amounts payable pursuant to clause (i) above; then
(iii) third, to the Senior Notes, PRO RATA based on amounts due, the
related Basis Risk Shortfall Amount from payments made pursuant to Section
3.05(b)(xvi) above (after payments to the Class A-1A Notes pursuant to
clause (i) above); and then
(iv) fourth, sequentially, to the Class M-1 Notes, Class M-2 Notes,
Class M-3 Notes, Class M-4 Notes, Class M-5 Notes, Class M-6 Notes, Class
M-7 Notes, Class M-8 Notes, Class M-9 Notes and Class M-10 Notes, in that
order, based on amounts due, the related Basis Risk Shortfall Amount from
payments made pursuant to Section 3.05(b)(xvi) above (after payments to the
Class A-1A Notes pursuant to clause (i) above).
(d) The Securities Administrator shall make payments in respect of a
Payment Date to each Noteholder of record on the related Record Date (other than
as provided in Section 8.07 respecting the final payment), by check or money
order mailed to such Noteholder at the address appearing in the Note Register,
or, upon written request by a Holder of a Note delivered to the Securities
Administrator at least five Business Days prior to the related Payment Date, by
wire transfer or otherwise, or, if not, by check or money order to such
Noteholder at the address appearing in the Note Register. Payments among
Noteholders of a Class shall be made in proportion to the Percentage Interests
evidenced by the Notes of such Class held by such Noteholders.
(e) Each payment with respect to a Book-Entry Note shall be paid to
the Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such payment to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such payment to the Note Owners
that it represents and to each indirect participating brokerage firm (a
"brokerage firm" or "indirect participating firm") for which it acts as agent.
Each brokerage firm shall be responsible for disbursing funds to the Note Owners
that it represents. None of the Securities Administrator, the Indenture Trustee,
the Note Registrar, the Paying Agent, the Depositor, the Servicer or the Master
Servicer shall have any responsibility therefor except as otherwise provided by
this Indenture or applicable law.
(f) On each Payment Date, the Certificate Paying Agent shall deposit
in the Certificate Distribution Account all amounts it received pursuant to this
Section 3.05 for the purpose of distributing such funds pursuant to the Trust
Agreement.
(g) The principal of each Note shall be due and payable in full on the
Final Stated Maturity Date for such Note as provided in the forms of Notes set
forth in Exhibit A to this Indenture. All principal payments on the Notes shall
be made to the Noteholders entitled thereto in accordance with the Percentage
Interests represented by such Notes. The Securities Administrator shall notify
the Person in whose name a Note is registered at the close of business on the
Record Date preceding the Final Stated Maturity Date or other final Payment Date
(including any final Payment Date resulting from any redemption pursuant to
Section 8.07 hereof). Such notice shall to the extent practicable be mailed no
later than five Business Days prior to such Final Stated Maturity Date or other
final Payment Date and shall specify that payment of the principal amount and
any interest due with respect to such Note at the Final Stated Maturity Date or
other final Payment Date will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for such final payment. No interest shall accrue on the Notes on or
after the Final Stated Maturity Date or any such other final Payment Date.
Section 3.06. PROTECTION OF COLLATERAL.
(a) The Issuer will from time to time prepare, execute and deliver all
such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) cause the Issuer, the Servicer or the Master Servicer to enforce
any of the rights to the Mortgage Loans; or
(iv) preserve and defend title to the Trust and the rights of the
Indenture Trustee and the Noteholders in the Trust against the claims of
all persons and parties.
(b) Except as otherwise provided in this Indenture, the Indenture
Trustee shall not remove any portion of the Trust that consists of money or is
evidenced by an instrument, certificate or other writing from the jurisdiction
in which it was held at the date of the most recent Opinion of Counsel delivered
pursuant to Section 3.07 hereof (or from the jurisdiction in which it was held
as described in the Opinion of Counsel delivered on the Closing Date pursuant to
Section 3.07(a) hereof), or if no Opinion of Counsel has yet been delivered
pursuant to Section 3.07(b) hereof, unless the Indenture Trustee shall have
first received an Opinion of Counsel to the effect that the lien and security
interest created by this Indenture with respect to such property will continue
to be maintained after giving effect to such action or actions.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.06 upon the
Issuer's preparation thereof and delivery to the Indenture Trustee.
Section 3.07. OPINIONS AS TO COLLATERAL.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee, the Securities Administrator and the Owner Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and first
priority security interest in the Collateral and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and first priority security interest effective.
(b) On or before April 15th in each calendar year, beginning in 2006,
the Issuer shall furnish to the Indenture Trustee and the Securities
Administrator an Opinion of Counsel at the expense of the Issuer either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording and re-filing of this Indenture, any
indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as is necessary to maintain the lien and first priority security
interest in the Collateral and reciting the details of such action or stating
that in the opinion of such counsel no such action is necessary to maintain such
lien and security interest. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and re-filing of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the lien and security interest
in the Collateral until December 31st in the following calendar year.
Section 3.08. PERFORMANCE OF OBLIGATIONS.
The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Collateral.
The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer.
The Issuer will not take any action or permit any action to be taken
by others which would release any Person from any of such Person's covenants or
obligations under any of the documents relating to the Mortgage Loans or under
any instrument included in the Collateral, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Servicer or the Master
Servicer is expressly permitted to take in the Servicing Agreement. The
Indenture Trustee and the Securities Administrator may exercise the rights of
the Issuer to direct the actions of the Servicer and/or the Master Servicer
pursuant to the Servicing Agreement.
The Issuer may retain an administrator and may enter into contracts
with other Persons for the performance of the Issuer's obligations hereunder,
and performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuer.
Section 3.09. NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, sell, transfer,
exchange or otherwise dispose of the Trust, unless directed to do so by the
Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code) or assert any claim against any
present or former Noteholder by reason of the payment of the taxes levied
or assessed upon any part of the Trust;
(iii) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust or any part thereof or any
interest therein or the proceeds thereof or (C) permit the lien of this
Indenture not to constitute a valid first priority security interest in the
Trust; or
(iv) waive or impair, or fail to assert rights under, the Mortgage
Loans, or impair or cause to be impaired the Issuer's interest in the
Mortgage Loans, the Mortgage Loan Sale and Contribution Agreement or in any
Basic Document, if any such action would materially and adversely affect
the interests of the Noteholders.
Section 3.10. [RESERVED.]
Section 3.11. [RESERVED.]
Section 3.12. REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE
LOANS. The Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit
of the representations and warranties made by the Seller and the Originator in
the Mortgage Loan Sale and Contribution Agreement concerning the Seller and the
Mortgage Loans to the same extent as though such representations and warranties
were made directly to the Indenture Trustee. If a Responsible Officer of the
Indenture Trustee or the Securities Administrator has actual knowledge of any
breach of any representation or warranty made by the Seller or the Originator in
the Mortgage Loan Sale and Contribution Agreement, the Indenture Trustee or the
Securities Administrator shall promptly notify the Seller or the Originator, as
applicable, of such finding and the Seller's or the Originator's obligation to
cure such defect or repurchase or substitute for the related Mortgage Loan.
Section 3.13. AMENDMENTS TO SERVICING AGREEMENT. The Issuer covenants
with the Indenture Trustee and the Securities Administrator that it will not
enter into any amendment or supplement to the Servicing Agreement without the
prior written consent of the Indenture Trustee and the Securities Administrator.
Section 3.14. SERVICER AS AGENT AND BAILEE OF THE INDENTURE TRUSTEE.
Solely for purposes of perfection under Section 9-305 of the UCC or other
similar applicable law, rule or regulation of the state in which such property
is held by the Servicer, the Issuer, the Indenture Trustee and the Securities
Administrator hereby acknowledge that the Servicer is acting as bailee of the
Indenture Trustee in holding amounts on deposit in the Collection Account, as
well as its bailee in holding any Related Documents released to the Servicer,
and any other items constituting a part of the Trust which from time to time
come into the possession of the Servicer. It is intended that, by the Servicer's
acceptance of such bailee arrangement, the Indenture Trustee, as a secured party
of the Mortgage Loans, will be deemed to have possession of such Related
Documents, such monies and such other items for purposes of Section 9-305 of the
UCC of the state in which such property is held by the Servicer. Neither the
Indenture Trustee nor the Securities Administrator shall be liable with respect
to such documents, monies or items while in possession of the Servicer.
Section 3.15. INVESTMENT COMPANY ACT. The Issuer shall not become an
"investment company" or be under the "control" of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
PROVIDED, HOWEVER, that the Issuer shall be in compliance with this Section 3.15
if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions imposed
in such order.
Section 3.16. ISSUER MAY CONSOLIDATE, ETC.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any state or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee and the Securities
Administrator, in form reasonably satisfactory to the Indenture Trustee and
the Securities Administrator, the due and punctual payment of the principal
of and interest on all Notes, and all other amounts payable to the
Indenture Trustee and the Securities Administrator, the payment to the
Certificate Paying Agent of all amounts due to the Certificateholders, and
the performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer that such
transaction shall not cause the rating of the Notes to be reduced,
suspended or withdrawn or to be considered by either Rating Agency to be
below investment grade;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered a copy thereof to the Indenture Trustee and the Securities
Administrator) to the effect that such transaction will not (A) result in a
"substantial modification" of the Notes under Treasury Regulation Section
1.1001-3, or adversely affect the status of the Notes as indebtedness for
federal income tax purposes, or (B) if 100% of the Certificates are not
owned by the Seller, cause the Trust to be subject to an entity level tax
for federal income tax purposes;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee and the
Securities Administrator an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions precedent
herein provided for or relating to such transaction have been complied with
(including any filing required by the Exchange Act), and that such
supplemental indenture is enforceable.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer, the conveyance or transfer of which is hereby
restricted, shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any state
thereof, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee and the Securities
Administrator, in form satisfactory to the Indenture Trustee and the
Securities Administrator, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (C) expressly agree by means
of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of
the Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend and hold
harmless the Issuer, the Indenture Trustee and the Securities Administrator
against and from any loss, liability or expense arising under or related to
this Indenture and the Notes and (E) expressly agree by means of such
supplemental indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with the
Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer that such
transaction shall not cause the rating of the Notes to be reduced,
suspended or withdrawn;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered a copy thereof to the Indenture Trustee and the Securities
Administrator) to the effect that such transaction will not (A) result in a
"substantial modification" of the Notes under Treasury Regulation Section
1.1001-3, or adversely affect the status of the Notes as indebtedness for
federal income tax purposes, or (B) if 100% of the Certificates are not
owned by the Seller, cause the Trust to be subject to an entity level tax
for federal income tax purposes;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee and the
Securities Administrator an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such supplemental
indenture comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
Section 3.17. SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.16(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.16(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee and the Securities Administrator of such
conveyance or transfer.
Section 3.18. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning and selling and managing the
Mortgage Loans and the issuance of the Notes and Certificates in the manner
contemplated by this Indenture and the Basic Documents and all activities
incidental thereto.
Section 3.19. NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes under this Indenture.
Section 3.20. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by this Indenture or the Basic Documents, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 3.21. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.22. RESERVED.
Section 3.23. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; PROVIDED, HOWEVER, that
the Issuer may make, or cause to be made, (x) distributions and payments to the
Owner Trustee, the Indenture Trustee, the Securities Administrator, Noteholders
and the Certificateholders as contemplated by, and to the extent funds are
available for such purpose under this Indenture and the Trust Agreement and (y)
payments to the Servicer or the Master Servicer pursuant to the terms of the
Servicing Agreement. The Issuer will not, directly or indirectly, make payments
to or distributions from the Collection Account except in accordance with this
Indenture and the Basic Documents.
Section 3.24. NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee, the Securities Administrator and the Rating Agencies prompt
written notice of each Event of Default hereunder and under the Trust Agreement.
Section 3.25. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee or the Securities Administrator, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
Section 3.26. STATEMENTS TO NOTEHOLDERS. On each Payment Date, the
Securities Administrator and the Certificate Registrar shall prepare and make
available on the Securities Administrator's website, ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ (or
deliver at the recipient's option), to each Noteholder and Certificateholder the
most recent statement prepared by the Securities Administrator pursuant to
Section 7.05 hereof.
Section 3.27. [RESERVED].
Section 3.28. CERTAIN REPRESENTATIONS REGARDING THE TRUST.
(a) With respect to that portion of the Collateral described in
clauses (a) through (d) of the definition of Collateral, the Issuer represents
to the Indenture Trustee and the Securities Administrator that:
(i) This Indenture creates a valid and continuing security interest
(as defined in the applicable UCC) in the Collateral in favor of the
Indenture Trustee, which security interest is prior to all other liens, and
is enforceable as such as against creditors of and purchasers from the
Issuer.
(ii) The Collateral constitutes "deposit accounts" or "instruments,"
as applicable, within the meaning of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral, free and clear of any lien, claim or encumbrance of any Person.
(iv) The Issuer has taken all steps necessary to cause the Indenture
Trustee to become the account holder of the Collateral.
(v) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Collateral.
(vi) The Collateral is not in the name of any Person other than the
Issuer or the Indenture Trustee. The Issuer has not consented to the bank
maintaining the Collateral to comply with instructions of any Person other
than the Indenture Trustee.
(b) With respect to that portion of the Collateral described in clause
(e), the Issuer represents to the Indenture Trustee and the Securities
Administrator that:
(i) This Indenture creates a valid and continuing security interest
(as defined in the applicable UCC) in the Collateral in favor of the
Indenture Trustee, which security interest is prior to all other liens, and
is enforceable as such as against creditors of and purchasers from the
Issuer.
(ii) The Collateral constitutes "general intangibles" within the
meaning of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral, free and clear of any lien, claim or encumbrance of any Person.
(iv) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Collateral.
(c) With respect to any Collateral in which a security interest may be
perfected by filing, 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 such Collateral, other than any financing
statement relating to the security interest granted to the Indenture Trustee
hereunder or that has been terminated. The Issuer is not aware of any judgment
or tax lien filings against the Issuer.
(d) The Issuer has caused or will have caused, within ten days, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the
security interest in all Collateral granted to the Indenture Trustee hereunder
in which a security interest may be perfected by filing and the Issuer will
cause such security interest to be maintained. Any financing statement that is
filed in connection with this Section 3.28 shall contain a statement that a
purchase or security interest in any collateral described therein will violate
the rights of the secured party named in such financing statement.
(e) The foregoing representations may not be waived and shall survive
the issuance of the Notes.
Section 3.29. ALLOCATION OF REALIZED LOSSES.
(a) On each Payment Date, the Securities Administrator shall determine
the total of the Applied Realized Loss Amounts for such Payment Date. The
Applied Realized Loss Amount for any Payment Date shall be applied by reducing
the Class Note Balance of each Class of Mezzanine Notes beginning with the Class
of Mezzanine Notes then outstanding with the lowest relative payment priority,
in each case until the respective Class Note Balance thereof is reduced to zero.
Any Applied Realized Loss Amount allocated to a related Class of Mezzanine Notes
shall be allocated among the Mezzanine Notes of such Class in proportion to
their respective Percentage Interests.
(b) With respect to any Class of Mezzanine Notes to which an Applied
Realized Loss Amount has been allocated (including any such Class for which the
related Class Note Balance has been reduced to zero), the Class Note Balance of
such Class will be increased up to the amount of Recoveries for such Payment
Date, beginning with the Class of Mezzanine Notes with the highest relative
payment priority, up to the amount of Applied Realized Loss Amounts previously
allocated to reduce such Class Note Balance. Any increase to the Class Note
Balance of a Class of Mezzanine Notes shall increase the Note Balance of the
related Class PRO RATA in accordance with each Percentage Interest.
Section 3.30. RESERVED.
Section 3.31. THE CLASS A-1A INTEREST RATE CAP AGREEMENT.
(a) The Securities Administrator shall deposit any amounts received
with respect to the Class A-1A Interest Rate Cap Agreement on a related Interest
Rate Cap Payment Date into the Payment Account.
(b) The Securities Administrator shall terminate the Cap Provider upon
the occurrence of an event of default or termination event under the Class A-1A
Interest Rate Cap Agreement of which a Responsible Officer of the Securities
Administrator has actual knowledge. In the event that the Class A-1A Interest
Rate Cap Agreement is cancelled or otherwise terminated for any reason (other
than the exhaustion of the interest rate protection provided thereby), the
Securities Administrator shall, at the direction of the Holders of not less than
50% of the aggregate Note Balance of the Class A-1A Notes (or if the Class A-1A
Notes are not outstanding, the Certificates), and to the extent a replacement
contract is available (from a counterparty designated by the Issuer and
acceptable to the Holders of not less than 50% of the aggregate Note Balance of
the Class A-1A Notes (or if the Class A-1A Notes are not outstanding, the
Certificates)) execute a replacement contract comparable to the Class A-1A
Interest Rate Cap Agreement providing interest rate protection which is equal to
the then-existing protection provided by the Class A-1A Interest Rate Cap
Agreement; provided, however, that the cost of any such replacement contract
providing the same interest rate protection may be reduced to a level such that
the cost of such replacement contract shall not exceed the amount of any early
termination payment received from the Cap Provider.
(c) On any Payment Date prior to the related Interest Rate Cap
Termination Date, if the Class Note Balance of the Class A-1A Notes equals zero
(but not including the Payment Date on which such Class Note Balance is reduced
to zero), all amounts received by the Securities Administrator with respect to
the Class A-1A Interest Rate Cap Agreement shall be distributed directly to the
Certificateholders.
(d) Prior to the related Interest Rate Cap Termination Date and upon
the redemption of the Offered Notes, the Class A-1A Interest Rate Cap Agreement
shall be assigned to the Certificateholders.
Section 3.32. THE CLASS N INTEREST RATE CAP AGREEMENT.
(a) The Securities Administrator shall deposit any amounts received
with respect to the Class N Interest Rate Cap Agreement on a related Interest
Rate Cap Payment Date into the Payment Account.
(b) The Securities Administrator shall terminate the Cap Provider upon
the occurrence of an event of default or termination event under the Class N
Interest Rate Cap Agreement of which a Responsible Officer of the Securities
Administrator has actual knowledge. In the event that the Class N Interest Rate
Cap Agreement is cancelled or otherwise terminated for any reason (other than
the exhaustion of the interest rate protection provided thereby), the Securities
Administrator shall, at the direction of the Holders of not less than 50% of the
aggregate Note Balance of the Class N Notes (or if the Class N Notes are not
outstanding, the Certificates), and to the extent a replacement contract is
available (from a counterparty designated by the Issuer and acceptable to the
Holders of not less than 50% of the aggregate Note Balance of the Class N Notes
(or if the Class N Notes are not outstanding, the Certificates)) execute a
replacement contract comparable to the Class N Interest Rate Cap Agreement
providing interest rate protection which is equal to the then-existing
protection provided by the Class N Interest Rate Cap Agreement; provided,
however, that the cost of any such replacement contract providing the same
interest rate protection may be reduced to a level such that the cost of such
replacement contract shall not exceed the amount of any early termination
payment received from the Cap Provider.
(c) On any Payment Date prior to the related Interest Rate Cap
Termination Date, if the Class Note Balance of the Class N Notes equals zero
(but not including the Payment Date on which such Class Note Balance is reduced
to zero), all amounts received by the Securities Administrator with respect to
the Class N Interest Rate Cap Agreement shall be distributed directly to the
Certificateholders.
(d) Prior to the related Interest Rate Cap Termination Date and upon
the redemption of the Class N Notes, the Class N Interest Rate Cap Agreement
shall be assigned to the Certificateholders.
ARTICLE IV
THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.01. THE NOTES. Each Class of Notes shall be registered in
the name of a nominee designated by the Depository. Beneficial Owners will hold
interests in the Notes through the book-entry facilities of the Depository in
minimum initial Note Balances of $25,000 and integral multiples of $1 in excess
thereof; provided that Offered Notes must be purchased in minimum total
investments of $100,000 per Class.
The Securities Administrator may for all purposes (including the
making of payments due on the Notes) deal with the Depository as the authorized
representative of the Beneficial Owners with respect to the Notes for the
purposes of exercising the rights of Holders of the Notes hereunder. Except as
provided in the next succeeding paragraph of this Section 4.01, the rights of
Beneficial Owners with respect to the Notes shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except as provided in Section 4.08
hereof, Beneficial Owners shall not be entitled to definitive notes for the
Notes as to which they are the Beneficial Owners. Requests and directions from,
and votes of, the Depository as Holder of the Notes shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners. The
Securities Administrator may establish a reasonable record date in connection
with solicitations of consents from or voting by Noteholders and give notice to
the Depository of such record date. Without the consent of the Issuer and the
Securities Administrator, no Note may be transferred by the Depository except to
a successor Depository that agrees to hold such Note for the account of the
Beneficial Owners.
In the event the Depository Trust Company resigns or is removed as
Depository, the Securities Administrator with the approval of the Issuer may
appoint a successor Depository. If no successor Depository has been appointed
within 30 days of the effective date of the Depository's resignation or removal,
each Beneficial Owner shall be entitled to certificates representing the Notes
it beneficially owns in the manner prescribed in Section 4.08.
The Notes shall, on original issue, be executed on behalf of the
Issuer by the Owner Trustee, not in its individual capacity but solely as Owner
Trustee, authenticated by the Securities Administrator and delivered by the
Securities Administrator to or upon the order of the Issuer.
Section 4.02. REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF NOTES; APPOINTMENT OF NOTE REGISTRAR AND CERTIFICATE.
The Securities Administrator shall cause to be kept at the Corporate
Trust Office a Note Register in which, subject to such reasonable regulations as
it may prescribe, the Note Registrar shall provide for the registration of Notes
and of transfers and exchanges of Notes as herein provided.
Subject to the restrictions and limitations set forth below, upon
surrender for registration of transfer of any Note at the Corporate Trust
Office, the Issuer shall execute and the Note Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes in authorized initial Note Balances evidencing the same Class and
aggregate Percentage Interests.
Subject to the foregoing, at the option of the Noteholders, Notes may
be exchanged for other Notes of like tenor and in authorized initial Note
Balances evidencing the same Class and aggregate Percentage Interests upon
surrender of the Notes to be exchanged at the Corporate Trust Office of the Note
Registrar. Whenever any Notes are so surrendered for exchange, the Issuer shall
execute and the Securities Administrator shall authenticate and deliver the
Notes which the Noteholder making the exchange is entitled to receive. Each Note
presented or surrendered for registration of transfer or exchange shall (if so
required by the Note Registrar) be duly endorsed by, or be accompanied by a
written instrument of transfer in form reasonably satisfactory to the Note
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing with such signature guaranteed by a commercial bank or trust company
located or having a correspondent located in the city of New York. Notes
delivered upon any such transfer or exchange will evidence the same obligations,
and will be entitled to the same rights and privileges, as the Notes
surrendered.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Note Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
The Issuer hereby appoints the Securities Administrator as (i)
Certificate Registrar to keep at its Corporate Trust Office a Certificate
Register pursuant to Section 3.09 of the Trust Agreement in which, subject to
such reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges
thereof pursuant to Section 3.05 of the Trust Agreement and (ii) Note Registrar
under this Indenture. The Securities Administrator hereby accepts such
appointments.
Section 4.03. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Securities Administrator, or the Securities
Administrator receives evidence to its satisfaction of the destruction, loss or
theft of any Note, and (ii) there is delivered to the Securities Administrator
such security or indemnity as may be required by it to hold the Issuer, the
Indenture Trustee and the Securities Administrator harmless, then, in the
absence of notice to the Issuer, the Note Registrar, the Indenture Trustee or
the Securities Administrator that such Note has been acquired by a protected
purchaser, and provided that the requirements of Section 8-405 of the UCC are
met, the Issuer shall execute, and upon its request the Securities Administrator
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note; PROVIDED,
HOWEVER, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due and payable, instead
of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen
Note when so due or payable without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a protected purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Securities Administrator shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer, the Indenture Trustee or the Securities Administrator in
connection therewith.
Upon the issuance of any replacement Note under this Section 4.03, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee and the Securities Administrator) connected therewith.
Every replacement Note issued pursuant to this Section 4.03 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 4.03 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 4.04. PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee, the
Securities Administrator, the Paying Agent and any agent of any of them may
treat the Person in whose name any Note is registered (as of the day of
determination) as the owner of such Note for the purpose of receiving payments
of principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Indenture Trustee, the Securities Administrator the Paying Agent nor any agent
of any of them shall be affected by notice to the contrary.
Section 4.05. CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Securities Administrator, be delivered to the Securities
Administrator and shall be promptly cancelled by the Securities Administrator.
The Issuer may at any time deliver to the Securities Administrator for
cancellation any Notes previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Securities Administrator. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section 4.05, except as expressly permitted by this Indenture.
All cancelled Notes may be held or disposed of by the Securities Administrator
in accordance with its standard retention or disposal policy as in effect at the
time unless the Issuer shall direct by an Issuer Request that they be destroyed
or returned to it; PROVIDED, HOWEVER, that such Issuer Request is timely and the
Notes have not been previously disposed of by the Securities Administrator.
Section 4.06. BOOK-ENTRY NOTES.
(a) The Notes, upon original issuance, will be issued in the form of
typewritten Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company, the initial Depository, by, or on behalf of, the
Issuer. The Notes shall initially be registered on the Note Register in the name
of Cede & Co., the nominee of the initial Depository, and no Beneficial Owner
will receive a Definitive Note representing such Beneficial Owner's interest in
such Note, except as provided in Section 4.08. With respect to such Notes,
unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to Beneficial Owners pursuant to Section 4.08:
(i) the provisions of this Section 4.06 shall be in full force and
effect;
(ii) the Note Registrar, the Paying Agent, the Indenture Trustee and
the Securities Administrator shall be entitled to deal with the Depository
for all purposes of this Indenture (including the payment of principal of
and interest on the Notes and the giving of instructions or directions
hereunder) as the sole holder of the Notes, and shall have no obligation to
the Beneficial Owners of the Notes;
(iii) to the extent that the provisions of this Section 4.06 conflict
with any other provisions of this Indenture, the provisions of this Section
4.06 shall control;
(iv) the rights of Beneficial Owners shall be exercised only through
the Depository and shall be limited to those established by law and
agreements between such Owners of Notes and the Depository and/or the
Depository Participants. Unless and until Definitive Notes are issued
pursuant to Section 4.08, the initial Depository will make book-entry
transfers among the Depository Participants and receive and transmit
payments of principal of and interest on the Notes to such Depository
Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Note Balances of the Notes, the Depository
shall be deemed to represent such percentage with respect to the Notes only
to the extent that it has received instructions to such effect from
Beneficial Owners and/or Depository Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes and has delivered such instructions to the Securities Administrator.
(b) The Class N Notes offered and sold in reliance on the exemption
from registration under Rule 144A shall be issued initially in the form of one
or more permanent global Notes in definitive, fully registered form without
interest coupons with the applicable legends set forth in Exhibit A added to the
forms of such Class N Notes (each, a "Restricted Global Security"), which shall
be deposited on behalf of the subscribers for such Class N Notes represented
thereby with the Securities Administrator as custodian for the Depository and
registered in the name of a nominee of the Depository, duly executed by the
Issuer and authenticated by the Securities Administrator as hereinafter
provided. The aggregate Note Balance of the Restricted Global Securities may
from time to time be increased or decreased by adjustments made on the records
of the Securities Administrator or the Depository or its nominee, as the case
may be, as hereinafter provided.
(c) The Class N Notes sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Notes in definitive, fully registered form without interest coupons with
the applicable legends set forth in Exhibit A hereto added to the forms of such
Class N Notes (each, a "Regulation S Global Security"), which shall be deposited
on behalf of the subscribers for such Class N Notes represented thereby with the
Securities Administrator as custodian for the Depository, duly executed by the
Issuer and authenticated by the Securities Administrator as hereinafter
provided. The aggregate Note Balance of the Regulation S Global Securities may
from time to time be increased or decreased by adjustments made on the records
of the Securities Administrator or the Depository or its nominee, as the case
may be, as hereinafter provided.
Section 4.07. NOTICES TO DEPOSITORY. Whenever a notice or other
communication to the Note Holders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Beneficial Owners pursuant to
Section 4.08, the Securities Administrator shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Depository, and shall have no obligation to the Beneficial Owners.
Section 4.08. DEFINITIVE NOTES. If (i) the Securities Administrator
determines that the Depository is no longer willing or able to properly
discharge its responsibilities with respect to the Notes and the Securities
Administrator is unable to locate a qualified successor or (ii) after the
occurrence of an Event of Default, Beneficial Owners of Notes representing
beneficial interests aggregating at least a majority of the Note Balance of the
Notes advise the Depository in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Beneficial Owners, then the Depository shall notify all Beneficial Owners and
the Securities Administrator of the occurrence of any such event and of the
availability of Definitive Notes to Beneficial Owners requesting the same. Upon
surrender to the Securities Administrator of the typewritten Notes representing
the Book-Entry Notes by the Depository, accompanied by registration
instructions, the Issuer shall execute and the Securities Administrator shall
authenticate the Definitive Notes in accordance with the instructions of the
Depository. None of the Issuer, the Note Registrar, the Indenture Trustee or the
Securities Administrator shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Notes, the Securities
Administrator shall recognize the Holders of the Definitive Notes as
Noteholders.
Section 4.09. TAX TREATMENT. The Issuer has entered into this
Indenture, and the Notes will be issued with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Notes
will qualify as indebtedness. The Issuer, the Indenture Trustee and the
Securities Administrator (in accordance with Section 6.06 hereof), by entering
into this Indenture, and each Noteholder, by its acceptance of its Note (and
each Beneficial Owner by its acceptance of an interest in the applicable
Book-Entry Note), agree to treat the Notes for federal, state and local income,
single business and franchise tax purposes as indebtedness.
Section 4.10. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.06, 3.09,
3.17, 3.19 and 3.20, (v) the rights, obligations and immunities of the Indenture
Trustee and the Securities Administrator hereunder (including the rights of the
Indenture Trustee and the Securities Administrator under Section 6.07 and the
obligations of the Indenture Trustee and the Securities Administrator under
Section 4.11) and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes and shall release and
deliver the Collateral to or upon the order of the Issuer, when
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 4.03 hereof and (ii) Notes for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 3.03) have been delivered to the
Securities Administrator for cancellation; or
(2) all Notes not theretofore delivered to the Securities
Administrator for cancellation (a) have become due and payable, (b) will
become due and payable at the Final Stated Maturity Date within one year,
or (c) have been called for early redemption pursuant to Section 8.07
hereof, and the Issuer, in the case of (a) or (b) above, has irrevocably
deposited or caused to be irrevocably deposited with the Securities
Administrator cash or direct obligations of or obligations guaranteed by
the United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Notes then outstanding
not theretofore delivered to the Securities Administrator for cancellation
when due on the Final Stated Maturity Date or other final Payment Date, or,
in the case of (c) above, the Issuer shall have complied with all
requirements of Section 8.07 hereof,
(B) the Issuer has paid or caused to be paid all other sums payable
hereunder; and
(C) the Issuer has delivered to the Indenture Trustee and the
Securities Administrator an Officer's Certificate and an Opinion of
Counsel, each meeting the applicable requirements of Section 10.01 hereof,
each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with
and, if the Opinion of Counsel relates to a deposit made in connection with
Section 4.10(A)(2)(b) above, such opinion shall further be to the effect
that such deposit will constitute an "in-substance defeasance" within the
meaning of Revenue Ruling 85-42, 1985-1 C.B. 36, and in accordance
therewith, the Issuer will be the owner of the assets deposited in trust
for federal income tax purposes.
Section 4.11. APPLICATION OF TRUST MONEY. All monies deposited with
the Securities Administrator pursuant to Section 4.10 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent or the
Issuer, Certificate Paying Agent as designee of the Issuer, as the Securities
Administrator may determine, to the Holders of Notes or Certificates, of all
sums due and to become due thereon for principal and interest or otherwise; but
such monies need not be segregated from other funds except to the extent
required herein or required by law.
Section 4.12. DERIVATIVE CONTRACTS FOR BENEFIT OF THE CERTIFICATES. At
any time on or after the Closing Date, the Issuer shall have the right to convey
to the Trust, solely for the benefit of the Holder of the Certificates, a
derivative contract or comparable instrument. Any such instrument shall
constitute a fully prepaid agreement. All collections, proceeds and other
amounts in respect of such an instrument shall be distributed to the
Certificates on the Payment Date following receipt thereof by the Securities
Administrator.
Section 4.13. REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all monies then held by any Person other than the Securities Administrator under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Securities Administrator to be held and applied
according to Section 3.05 and thereupon such Person shall be released from all
further liability with respect to such monies.
Section 4.14. TEMPORARY NOTES. Pending the preparation of any
Definitive Notes, the Issuer may execute and upon its written direction, the
Securities Administrator may authenticate and make available for delivery,
temporary Notes that are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, substantially of the tenor of the
Definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of the
Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the temporary Notes at the office of the Securities
Administrator located at the office designated for such purposes, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Notes, the Issuer shall execute and the Securities Administrator shall
authenticate and make available for delivery, in exchange therefor, Definitive
Notes of authorized denominations and of like tenor, class and aggregate
principal amount. Until so exchanged, such temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as Definitive Notes.
Section 4.15. REPRESENTATION REGARDING ERISA. By acquiring an Offered
Note or interest therein, each Holder of such Note or Beneficial Owner of any
such interest will be deemed to represent that either (1) it is not acquiring
the Note with Plan Assets or (2) (A) the acquisition, holding and transfer of
such Note will not give rise to a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and (B) the Notes are rated
investment grade or better and such person believes that the Notes are properly
treated as indebtedness without substantial equity features for purposes of the
Department of Labor ("DOL") regulation 29 C.F.R. ss. 2510.3-101, and agrees to
so treat the Notes. Alternatively, regardless of the rating of the Notes, such
person may provide the Indenture Trustee, the Securities Administrator and the
Owner Trustee with an Opinion of Counsel, which Opinion of Counsel will not be
at the expense of the Issuer, the Seller, any Underwriter, the Owner Trustee,
the Indenture Trustee, the Securities Administrator, the Servicer, the Master
Servicer or any successor servicer which opines that the acquisition, holding
and transfer of such Note or interest therein is permissible under applicable
law, will not constitute or result in a non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Issuer, the Seller,
the Depositor, the Owner Trustee, the Indenture Trustee, the Securities
Administrator, the Servicer, the Master Servicer or any successor servicer to
any obligation in addition to those undertaken in the Indenture.
Section 4.16. TRANSFER RESTRICTIONS FOR CLASS N NOTES.
(a) No transfer, sale, pledge or other disposition of any Class N Note
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the 1933 Act and any applicable state securities laws, or is otherwise made in
accordance with the 1933 Act and such state securities laws. If a transfer of
any Class N Note is to be made without registration under the 1933 Act (other
than in connection with the initial issuance thereof or a transfer thereof by
the Depositor or one of its Affiliates), then the Note Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) a certificate from the Noteholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1 hereto and a certificate from
such Noteholder's prospective transferee substantially in the form attached as
Exhibit F-2 hereto (which in the case of the Book-Entry Notes, the Noteholder
and the Noteholder's prospective transferee will be deemed to have represented
such certification). None of the Issuer, the Depositor, the Indenture Trustee,
the Securities Administrator or the Note Registrar is obligated to register or
qualify any Class N Notes under the Securities Act or any other securities law
or to take any action not otherwise required under this Indenture to permit the
transfer of any Class N Note or interest therein without registration or
qualification. Any Noteholder desiring to effect a transfer of Class N Notes or
interests therein shall, and does hereby agree to, indemnify the Issuer, the
Depositor, the Owner Trustee, the Indenture Trustee, the Securities
Administrator and the Note Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
(b) No Class N Note may be sold or transferred to a Person unless such
Person certifies substantially in the form of Exhibit F-2 hereto (which in the
case of the Book-Entry Notes, such Person will be deemed to have represented
such certification), which certification the Securities Administrator may rely
upon without further inquiry or investigation, to the following effect:
(i) Such Person is neither: (1) an employee benefit plan or other
retirement arrangement, including individual retirement accounts and
annuities, ▇▇▇▇▇ plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested,
including, without limitation, insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), nor (2) any Person who is
directly or indirectly purchasing such Note or interest therein on behalf
of, as named fiduciary of, as trustee of, or with "plan assets" (as defined
under the DOL Regulation at 29 C.F.R. Section 2510.3 101) of a Plan; or
(ii) The acquisition, holding and transfer of the Transferred Note
will not give rise to a nonexempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code and (2) the Transferred Note is rated
investment grade or better and the Transferee believes that the Transferred
Note is properly treated as indebtedness without substantial equity
features for purposes of the DOL Regulations, and agrees to so treat the
Transferred Note.
Notwithstanding the foregoing, a certification will not be required in
connection with the initial transfer of any such Note by the Depositor to an
Affiliate of the Depositor (in which case, the Depositor or any Affiliate
thereof shall be deemed to have represented that such Affiliate is not a Plan or
any Person investing "plan assets" of any Plan) and the Note Registrar shall be
entitled to conclusively rely upon a representation (which, upon the request of
the Note Registrar, shall be a written representation) from the Depositor of the
status of such transferee as an Affiliate of the Depositor.
(c) No Note sold in an offshore transaction in reliance on Regulation
S, may be sold or transferred to a Person unless such Person certifies
substantially in the form of Exhibit F-2, G-1 or G-2 hereto (which in the case
of the Book-Entry Notes, such Person will be deemed to have represented such
certification), which certification the Securities Administrator may rely upon
without further inquiry or investigation, to the following effect:
(i) Such Person is not a U.S. person within the meaning of Regulation
S and was, at the time the buy order was originated, outside the United
States;
(ii) Such Person understands that such Class N Notes have not been
registered under the Securities Act, and that (x) until the expiration of
the 40-day distribution compliance period (within the meaning of Regulation
S), no offer, sale, pledge or other transfer of such Notes or any interest
therein shall be made in the United States or to or for the account or
benefit of a U.S. person (each as defined in Regulation S), (y) if in the
future it decides to offer, resell, pledge or otherwise transfer such Class
N Notes, such Class N Notes may be offered, resold, pledged or otherwise
transferred only (A) to a person which the seller reasonably believes is a
qualified institutional buyer that is purchasing such Class N Notes for its
own account or for the account of a qualified institutional buyer to which
notice is given that the transfer is being made in reliance on Rule 144A or
(B) in an offshore transaction (as defined in Regulation S) in compliance
with the provisions of Regulation S, in each case in compliance with the
requirements of this Indenture; and it will notify such transferee of the
transfer restrictions specified in this Section 4.16; and
(iii) Either (A) such Person is neither (i) an employee benefit plan
or other retirement arrangement, including individual retirement accounts
and annuities, ▇▇▇▇▇ plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested,
including, without limitation, insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), nor (ii) any Person who is
directly or indirectly purchasing such Note or interest therein on behalf
of, as named fiduciary of, as trustee of, or with "plan assets" (as defined
under the DOL Regulation at 29 C.F.R. Section 2510.3-101) of a Plan; (B)
(1) the acquisition, holding and transfer of such Class N Note will not
give rise to a nonexempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code and (2) such Class N Note is rated investment
grade or better and such person believes that such Class N Note is properly
treated as indebtedness without substantial equity features for purposes of
the DOL Regulations, and agrees to so treat such Class N Note or (C) such
person has provided the Indenture Trustee, the Securities Administrator and
the Owner Trustee with an Opinion of Counsel, which Opinion of Counsel will
not be at the expense of the Issuer, the Seller, any Underwriter, the Owner
Trustee, the Indenture Trustee, the Securities Administrator, the Servicer,
the Master Servicer or any successor servicer which opines that the
acquisition, holding and transfer of such Class N Note or interest therein
is permissible under applicable law, will not constitute or result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Issuer, the Seller, any Underwriter, the Owner
Trustee, the Indenture Trustee, the Securities Administrator, the Servicer,
the Master Servicer or any successor servicer to any obligation in addition
to those undertaken in the Indenture.
Notwithstanding the foregoing, a certification will not be required in
connection with the initial transfer of any such Note by the Depositor to an
Affiliate of the Depositor (in which case, the Depositor or any Affiliate
thereof shall be deemed to have represented that such Affiliate is not a Plan or
any Person investing "plan assets" of any Plan) and the Note Registrar shall be
entitled to conclusively rely upon a representation (which, upon the request of
the Note Registrar, shall be a written representation) from the Depositor of the
status of such transferee as an Affiliate of the Depositor.
(d) If a Person is acquiring any Class N Note or interest therein as a
fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Note Registrar a certification (which in the case of the
Book-Entry Notes, the prospective transferee will be deemed to have represented
such certification) to the effect that it has (i) sole investment discretion
with respect to each such account and (ii) full power to make the foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in subsections (b), (c) and (d) of
this Section 4.16.
(e) Notwithstanding any provision to the contrary herein, so long as a
Global Security representing the Notes remains outstanding and is held by or on
behalf of the Depository, transfers of a Global Security representing the Notes,
in whole or in part, shall only be made in accordance with this Section 4.16.
(i) Subject to clauses (ii) and (iii) of this Section 4.16(e),
transfers of a Global Security representing the Class N Notes shall be
limited to transfers of such Global Security in whole, but not in part, to
nominees of the Depository or to a successor of the Depository or such
successor's nominee.
(ii) RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY. If a
holder of a beneficial interest in a Restricted Global Security deposited
with or on behalf of the Depository wishes at any time to exchange its
interest in such Restricted Global Security for an interest in a Regulation
S Global Security, or to transfer its interest in such Restricted Global
Security to a Person who wishes to take delivery thereof in the form of an
interest in a Regulation S Global Security, such holder, provided such
holder is not a U.S. Person, may, subject to the rules and procedures of
the Depository, exchange or cause the exchange of such interest for an
equivalent beneficial interest in the Regulation S Global Security. Upon
receipt by the Securities Administrator, as Note Registrar, of (A)
instructions from the Depository directing the Securities Administrator, as
Note Registrar, to cause to be credited a beneficial interest in a
Regulation S Global Security in an amount equal to the beneficial interest
in such Restricted Global Security to be exchanged but not less than the
minimum denomination applicable to such holder's Notes held through a
Regulation S Global Security, (B) a written order given in accordance with
the Depository's procedures containing information regarding the
participant account of the Depository and, in the case of a transfer
pursuant to and in accordance with Regulation S, the Euroclear or
Clearstream account to be credited with such increase and (C) a certificate
in the form of Exhibit G-1 hereto given by the holder of such beneficial
interest stating that the exchange or transfer of such interest has been
made in compliance with the transfer restrictions applicable to the Global
Securities, including that the holder is not a U.S. Person and pursuant to
and in accordance with Regulation S, the Securities Administrator, as Note
Registrar, shall reduce the principal amount of the Restricted Global
Security and increase the principal amount of the Regulation S Global
Security by the aggregate principal amount of the beneficial interest in
the Restricted Global Security to be exchanged, and shall instruct
Euroclear or Clearstream, as applicable, concurrently with such reduction,
to credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Regulation S Global Security
equal to the reduction in the principal amount of the Restricted Global
Security.
(iii) REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY. If a
holder of a beneficial interest in a Regulation S Global Security deposited
with or on behalf of the Depository wishes at any time to transfer its
interest in such Regulation S Global Security to a Person who wishes to
take delivery thereof in the form of an interest in a Restricted Global
Security, such holder may, subject to the rules and procedures of the
Depository, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Global Security. Upon
receipt by the Securities Administrator, as Note Registrar, of (A)
instructions from the Depository directing the Securities Administrator, as
Note Registrar, to cause to be credited a beneficial interest in a
Restricted Global Security in an amount equal to the beneficial interest in
such Regulation S Global Security to be exchanged but not less than the
minimum denomination applicable to such Holder's Class N Notes held through
a Restricted Global Security, to be exchanged, such instructions to contain
information regarding the participant account with the Depository to be
credited with such increase, and (B) a certificate in the form of Exhibit
G-2 hereto given by the holder of such beneficial interest and stating,
among other things, that the Person transferring such interest in such
Regulation S Global Security reasonably believes that the Person acquiring
such interest in a Restricted Global Security is a qualified institutional
buyer within the meaning of Rule 144A, is obtaining such beneficial
interest in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any State of the United
States or any other jurisdiction, then the Securities Administrator, as
Note Registrar, will reduce the principal amount of the Regulation S Global
Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the Regulation S Global Security to be transferred and the Securities
Administrator, as Note Registrar, shall instruct the Depository,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in the Restricted Global Security equal to the reduction in the principal
amount of the Regulation S Global Security.
(iv) OTHER EXCHANGES. In the event that a Global Security is exchanged
for Class N Notes in definitive registered form without interest coupons,
such Class N Notes may be exchanged for one another only in accordance with
such procedures as are substantially consistent with the provisions above
(including certification requirements intended to insure that such
transfers comply with Rule 144A or are to non-U.S. Persons, or otherwise
comply with Regulation S under the Securities Act, as the case may be, and
as may be from time to time adopted by the Issuer and the Securities
Administrator.
(v) RESTRICTIONS ON U.S. TRANSFERS. Transfers of interests in the
Regulation S Global Security to U.S. persons (as defined in Regulation S)
shall be limited to transfers made pursuant to the provisions of Section
4.16(e)(3).
ARTICLE V
DEFAULT AND REMEDIES
Section 5.01. EVENTS OF DEFAULT. The Issuer shall deliver to the
Indenture Trustee and the Securities Administrator, written notice in the form
of an Officer's Certificate, within five days after learning of the occurrence
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (iii), (iv) or (v) of the definition of "Event
of Default," its status and what action the Issuer is taking or proposes to take
with respect thereto. Neither the Indenture Trustee nor the Securities
Administrator shall be deemed to have knowledge of any Event of Default unless a
Responsible Officer has actual knowledge thereof or unless written notice of
such Event of Default is received by a Responsible Officer and such notice
references the Notes, the Trust or this Indenture.
Section 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default should occur and be continuing, then and in every such case
the Indenture Trustee shall, at the written direction of the Holders of Notes
representing not less than a majority of the aggregate Note Balance of the
Notes, declare the Notes to be immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee and the Securities
Administrator if such notice is given by the Noteholders), and upon any such
declaration the unpaid aggregate Note Balance, together with accrued and unpaid
interest thereon through the date of acceleration shall become immediately due
and payable.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree for
payment of the money due has been obtained by the Securities Administrator as
hereinafter in this Article V provided, Holders of the Notes representing not
less than a majority of the aggregate Note Balance of the Notes, by written
notice to the Issuer, the Indenture Trustee and the Securities Administrator,
may waive the related Event of Default and rescind and annul such declaration
and its consequences if
(i) the Issuer has paid or deposited with the Securities Administrator
a sum sufficient to pay (a) all payments of principal of and interest on
the Notes and all other amounts that would then be due hereunder or upon
the Notes if the Event of Default giving rise to such acceleration had not
occurred; and (b) all sums paid or advanced by the Securities Administrator
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and the Securities Administrator and its
respective agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, the Issuer shall, upon demand of the Securities
Administrator, at the direction of the Holders of a majority of the aggregate
Note Balance of the Notes, pay to the Securities Administrator, for the benefit
of the Holders of Notes, the whole amount then due and payable on the Notes for
principal and interest, with interest at the applicable Note Rate upon the
overdue principal, and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and the Securities Administrator and its respective agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, subject to the provisions of Section 10.16 hereof may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the same against
the Issuer or other obligor upon the Notes and collect in the manner provided by
law out of the property of the Issuer or other obligor the Notes, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee, subject to the provisions of Section 10.16 hereof may, as more
particularly provided in Section 5.04 hereof, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings, as directed in writing by Holders of a majority of the
aggregate Note Balance of the Notes, to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust, Proceedings under Title 11 of the United States Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, as directed in writing by Holders
of a majority of the aggregate Note Balance of the Notes, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such Proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee, the Securities
Administrator and each predecessor Indenture Trustee and Securities
Administrator, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and Securities Administrator and each
predecessor Indenture Trustee and Securities Administrator, except as a
result of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf, and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property; and any trustee,
receiver, liquidator, custodian or other similar official in any such
Proceeding is hereby authorized by each of such Noteholders to make
payments to the Securities Administrator and, in the event that the
Indenture Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee and the Securities
Administrator such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee and the Securities Administrator,
each predecessor Indenture Trustee and Securities Administrator and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and
the Securities Administrator and each predecessor Indenture Trustee and
Securities Administrator.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee or the Securities Administrator to authorize or consent to or
vote for or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Indenture Trustee or the
Securities Administrator to vote in respect of the claim of any Noteholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee and the Securities
Administrator, each predecessor Indenture Trustee and Securities Administrator
and their respective agents and attorneys, shall be for the ratable benefit of
the Holders of the Notes, subject to Section 5.05 hereof.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
Section 5.04. REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be continuing and
if an acceleration has been declared and not rescinded pursuant to Section 5.02
hereof, the Indenture Trustee subject to the provisions of Section 10.16 hereof
may, and shall, at the written direction of the Holders of a majority of the
aggregate Note Balance of the Notes, do one or more of the following (subject to
Section 5.05 hereof):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this Indenture with respect thereto, whether by declaration or otherwise
enforce any judgment obtained, and collect from the Issuer and any other
obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Collateral or any portion thereof or rights or interest
therein, at one or more public or private sales called and conducted in any
manner permitted by law; PROVIDED, HOWEVER, that the Indenture Trustee may
not sell or otherwise liquidate the Trust following an Event of Default,
unless (A) the Indenture Trustee obtains the consent of the Holders of 100%
of the aggregate Note Balance of the Notes, (B) the proceeds of such sale
or liquidation distributable to the Holders of the Notes are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for
principal and interest or (C) the Indenture Trustee determines that the
Mortgage Loans will not continue to provide sufficient funds for the
payment of principal of and interest on the applicable 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 Holders of a majority of the
aggregate Note Balance of the Notes. In determining such sufficiency or
insufficiency with respect to clause (B) and (C), the Indenture Trustee
may, but need not, obtain and rely upon written advice or an opinion
(obtained at the expense of the Trust) of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust for such purpose.
Notwithstanding the foregoing, so long as a Servicer Event of Default has
not occurred, any sale of the Trust shall be made subject to the continued
servicing of the Mortgage Loans by the Servicer as provided in the
Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, the Indenture Trustee shall forward such funds to the
Securities Administrator and the Securities Administrator shall pay out the
money or property in the following order:
(i) to the Indenture Trustee and the Securities Administrator for
amounts due under Section 6.07 hereof and to the Owner Trustee for amounts
due pursuant to Article VII of the Trust Agreement;
(ii) to the Noteholders in the order of priority set forth in Section
3.05(b); and
(iii) to the payment of the remainder, if any to the Certificate
Paying Agent on behalf of the Issuer or to any other person legally
entitled thereto.
The Securities Administrator may fix a record date and Payment Date
for any payment to Noteholders pursuant to this Section 5.04. At least 15 days
before such record date, the Securities Administrator shall mail to each
Noteholder a notice that states the record date, the Payment Date and the amount
to be paid.
Section 5.05. OPTIONAL PRESERVATION OF THE COLLATERAL. If the Notes
have been declared to be due and payable under Section 5.02 following an Event
of Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may elect to take and maintain possession of the
Collateral. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes and other obligations of the Issuer, the Indenture Trustee
and the Securities Administrator shall take such desire into account when
determining whether or not to take and maintain possession of the Trust. In
determining whether and how to take and maintain possession of the Trust, the
Indenture Trustee may, but need not, obtain and rely upon the written advice or
an opinion (obtained at the expense of the Trust) of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust for such purpose.
Section 5.06. LIMITATION OF SUITS. No Holder of any Note shall have
any right to institute any Proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless and subject to the provisions of Section 10.16
hereof
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the aggregate Note Balance of
the Notes have made a written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice of request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a
majority of the Note Balances of the Notes.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
Section 5.07. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 5.08. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
Section 5.09. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Indenture Trustee, the Securities
Administrator or to the Noteholders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Indenture
Trustee or to the Noteholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as
the case may be.
Section 5.11. CONTROL BY NOTEHOLDERS. The Holders of a majority of the
aggregate Note Balance of Notes shall have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) any direction to the Indenture Trustee to sell or liquidate the
Collateral shall be by Holders of Notes representing not less than 100% of
the Note Balances of the Notes;
(iii) the Indenture Trustee has been provided with indemnity
satisfactory to it; and
(iv) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction of the
Holders of Notes representing a majority of the Note Balances of the Notes.
Notwithstanding the rights of Noteholders set forth in this Section
5.11 the Indenture Trustee need not take any action that it determines might
involve it in liability.
Section 5.12. WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02 hereof,
the Holders of Notes representing not less than a majority of the aggregate Note
Balance of the Notes may waive any past Event of Default and its consequences
except an Event of Default (a) with respect to payment of principal of or
interest on any of the Notes or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note. In the case of any such waiver, the Issuer, the Indenture Trustee, the
Securities Administrator and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively, but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.
Section 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note and each Beneficial Owner of any interest
therein by such Holder's or Beneficial Owner's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee or the Securities Administrator for any action
taken, suffered or omitted by it as Indenture Trustee or Securities
Administrator, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 5.13 shall not apply to (a) any suit instituted by the Indenture Trustee
or the Securities Administrator, (b) any suit instituted by any Noteholder, or
group of Noteholders, in each case holding in the aggregate more than 10% of the
Note Balances of the Notes or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture.
Section 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee or the Securities Administrator, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Section 5.15. SALE OF TRUST.
(a) The power to effect any sale or other disposition (a "Sale") of
any portion of the Trust pursuant to Section 5.04 hereof is expressly subject to
the provisions of Section 5.05 hereof and this Section 5.15. The power to effect
any such Sale shall not be exhausted by any one or more Sales as to any portion
of the Trust remaining unsold, but shall continue unimpaired until the entire
Trust shall have been sold or all amounts payable on the Notes and under this
Indenture shall have been paid. The Indenture Trustee may from time to time
postpone any public Sale by public announcement made at the time and place of
such Sale. The Indenture Trustee hereby expressly waives its right to any amount
fixed by law as compensation for any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the
Trust, or any portion thereof, unless
(i) the Holders of all Notes consent to or direct the Indenture
Trustee to make, such Sale, or
(ii) the proceeds of such Sale would be not less than the entire
amount which would be payable to the Noteholders under the Notes, in full
payment thereof in accordance with Section 5.02 hereof, on the Payment Date
next succeeding the date of such Sale, or
(iii) the Indenture Trustee determines that the conditions for
retention of the Collateral set forth in Section 5.05 hereof cannot be
satisfied (in making any determination under this Section 5.15, the
Indenture Trustee may rely upon written advice or an opinion of an
Independent investment banking firm obtained and delivered as provided in
Section 5.05 hereof), the Holders of Notes representing at least 100% of
the Note Balances of the Notes consent to such Sale.
The purchase by the Indenture Trustee of all or any portion of the
Trust at a private Sale shall not be deemed a Sale or other disposition thereof
for purposes of this Section 5.15(b).
(c) [Reserved].
(d) In connection with a Sale of all or any portion of the Trust,
(i) any Holder or Holders of Notes may bid for and purchase the
property offered for sale, and upon compliance with the terms of sale may
hold, retain and possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor, deliver any
Notes or claims for interest thereon in lieu of cash up to the amount which
shall, upon distribution of the net proceeds of such sale, be payable
thereon, and such Notes, in case the amounts so payable thereon shall be
less than the amount due thereon, shall be returned to the Holders thereof
after being appropriately stamped to show such partial payment;
(ii) the Indenture Trustee, may bid for and acquire the property
offered for Sale in connection with any Sale thereof, and, subject to any
requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust in a
private sale, and, in lieu of paying cash therefor, may make settlement for
the purchase price by crediting the gross Sale price against the sum of (A)
the amount which would be payable to the Holders of the Notes and Holders
of Certificates on the Payment Date next succeeding the date of such Sale
and (B) the expenses of the Sale and of any Proceedings in connection
therewith which are reimbursable to it, without being required to produce
the Notes in order to complete any such Sale or in order for the net Sale
price to be credited against such Notes, and any property so acquired by
the Indenture Trustee shall be held and dealt with by it in accordance with
the provisions of this Indenture;
(iii) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance, prepared by the Issuer and satisfactory to the
Indenture Trustee, transferring its interest in any portion of the Trust in
connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust in connection with a Sale thereof, and to take all
action necessary to effect such Sale; and
(v) no purchaser or transferee at such a Sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
Section 5.16. ACTION ON NOTES. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Trust or upon
any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b) hereof.
Section 5.17. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer in its capacity as holder of the Mortgage Loans, shall take all such
lawful action as the Indenture Trustee may request to cause the Issuer to compel
or secure the performance and observance by the Seller, the Servicer and the
Master Servicer, as applicable, of each of their obligations to the Issuer under
or in connection with the Mortgage Loan Sale and Contribution Agreement and the
Servicing Agreement, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Mortgage Loan Sale and Contribution Agreement and the Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee, as pledgee of the
Mortgage Loans, including the transmission of notices of default on the part of
the Seller, the Servicer or the Master Servicer thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Seller, the Servicer or the Master Servicer of each of their
obligations under the Mortgage Loan Sale and Contribution Agreement and the
Servicing Agreement.
(b) The Indenture Trustee, as pledgee of the Mortgage Loans, may, and
at the direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Holders of 66-2/3% of the Note Balances
of the Notes, shall exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Originator, the Seller, the Servicer or the Master
Servicer under or in connection with the Mortgage Loan Sale and Contribution
Agreement and the Servicing Agreement, including the right or power to take any
action to compel or secure performance or observance by the Originator, the
Seller, the Servicer or the Master Servicer, as the case may be, of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Mortgage Loan Sale
and Contribution Agreement and the Servicing Agreement, as the case may be, and
any right of the Issuer to take such action shall not be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 6.01. DUTIES OF INDENTURE TRUSTEE AND THE SECURITIES
ADMINISTRATOR.
(a) If an Event of Default has occurred and is continuing, each of the
Indenture Trustee and the Securities Administrator shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) each of the Indenture Trustee and the Securities Administrator
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Indenture Trustee or the Securities
Administrator; and
(ii) in the absence of bad faith on its part, each of the Indenture
Trustee and the Securities Administrator may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee
or the Securities Administrator and conforming to the requirements of this
Indenture; however, each of the Indenture Trustee and the Securities
Administrator shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) Neither the Indenture Trustee nor the Securities Administrator may
be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;
(ii) neither the Indenture Trustee nor the Securities Administrator
shall be liable for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Indenture Trustee or the
Securities Administrator was negligent in ascertaining the pertinent facts;
and
(iii) neither the Indenture Trustee nor the Securities Administrator
shall be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it from Noteholders
or from the Issuer, which they are entitled to give under the Basic
Documents.
(d) Neither the Indenture Trustee nor the Securities Administrator
shall be liable for interest on any money received by it.
(e) Money held in trust by the Indenture Trustee or the Securities
Administrator need not be segregated from other trust funds except to the extent
required by law or the terms of this Indenture or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee
or the Securities Administrator to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee and
the Securities Administrator shall be subject to the provisions of this Section
and to the provisions of the TIA.
(h) The Indenture Trustee shall act in accordance with Section 6.03 of
the Servicing Agreement and shall act as successor to the Master Servicer or
appoint a successor Master Servicer in accordance with Section 6.04 of the
Servicing Agreement.
(i) In order to comply with its duties under U.S.A. Patriot Act, each
of the Indenture Trustee and the Securities Administrator shall obtain and
verify certain information and documentation from the other parties hereto,
including, but not limited to, such party's name, address, and other identifying
information.
(j) The Securities Administrator agrees to notify the Master Servicer
in writing no later than 5:00 p.m. New York time on each Deposit Date of the
aggregate dollar amount of the funds received by the Securities Administrator
from the Servicer on such Deposit Date and any other information reasonably
requested by the Master Servicer, so as to enable the Master Servicer to make
the reconciliations and verifications required to be made by it pursuant to
Section 4.01 of the Servicing Agreement.
Section 6.02. RIGHTS OF INDENTURE TRUSTEE AND SECURITIES
ADMINISTRATOR.
(a) Each of the Indenture Trustee and the Securities Administrator may
conclusively rely on, and shall be fully protected from acting or refraining
from acting upon, any document believed by it to be genuine and to have been
signed or presented by the proper person. Neither the Indenture Trustee nor the
Securities Administrator need investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee or the Securities Administrator acts
or refrains from acting, it may require an Officer's Certificate or an Opinion
of Counsel. Neither the Indenture Trustee nor the Securities Administrator shall
be liable for any action it takes or omits to take in good faith in reliance on
an Officer's Certificate or Opinion of Counsel.
(c) Neither the Indenture Trustee nor the Securities Administrator
shall be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers; PROVIDED, HOWEVER,
that the Indenture Trustee's or the Securities Administrator's conduct does not
constitute willful misconduct, negligence or bad faith.
(d) Each of the Indenture Trustee and the Securities Administrator may
consult with counsel, and the advice or Opinion of Counsel with respect to legal
matters relating to the Basic Documents and the Notes shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder or in connection herewith in good faith and
in accordance with the advice or opinion of such counsel.
(e) Each of the Indenture Trustee and the Securities Administrator may
execute any of the trusts or powers hereunder or perform any duties hereunder,
either directly or by or through agents, attorneys, custodians or nominees
appointed with due care, and shall not be responsible for any willful misconduct
or negligence on the part of any agent, attorney, custodian or nominee so
appointed.
Section 6.03. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE AND SECURITIES
ADMINISTRATOR. The Indenture Trustee or the Securities Administrator in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee or the Securities Administrator, as
applicable, subject to the requirements of the Trust Indenture Act. Any Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, each of the Indenture Trustee and the Securities Administrator must
comply with Sections 6.11 and 6.12 hereof.
Section 6.04. INDENTURE TRUSTEE'S AND SECURITIES ADMINISTRATOR'S
DISCLAIMER. Neither the Indenture Trustee nor the Securities Administrator shall
be responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Issuer in the Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Securities Administrator's
certificate of authentication.
Section 6.05. NOTICE OF EVENT OF DEFAULT. Subject to Section 5.01, the
Indenture Trustee or the Securities Administrator shall promptly mail to each
Noteholder notice of the Event of Default after it is actually known to a
Responsible Officer of the Indenture Trustee or the Securities Administrator,
unless such Event of Default shall have been waived or cured. Except in the case
of an Event of Default in payment of principal of or interest on any Note, the
Indenture Trustee or the Securities Administrator may withhold the notice if and
so long as it in good faith determines that withholding the notice is in the
interests of Noteholders.
Section 6.06. REPORTS BY SECURITIES ADMINISTRATOR TO HOLDERS AND TAX
ADMINISTRATION.
The Securities Administrator shall deliver to each Noteholder such
information as may be required to enable such holder to prepare its federal and
state income tax returns. Pursuant to the Mortgage Loan Sale and Contribution
Agreement, the Administrator will prepare and file (or cause to be prepared and
filed), on behalf of the Owner Trustee or the Issuer, all tax returns (if any)
and information reports, tax elections and such annual or other reports of the
Issuer as are necessary for preparation of tax returns and information reports
as required by the Code. In addition, the Securities Administrator shall prepare
a Form 1099 with respect to each calendar year.
Section 6.07. COMPENSATION AND INDEMNITY. Each of the Indenture
Trustee and the Securities Administrator shall be paid by the Master Servicer
from a portion of the Master Servicing Fee.
The Issuer shall reimburse the Indenture Trustee, the Securities
Administrator and the Owner Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to
compensation for its services. Such expenses shall include reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
the Securities Administrator's or the Owner Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify each of the Indenture
Trustee, the Securities Administrator and the Master Servicer and hold each of
them harmless against any and all claim, tax, penalty, loss, liability or
expense (including attorneys' fees and expenses) of any kind whatsoever incurred
by it in connection with the administration of this Trust and the performance of
its duties under any of the Basic Documents. The Indenture Trustee, the
Securities Administrator or the Master Servicer, as applicable, shall notify the
Issuer promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee, the Securities Administrator or the Master Servicer to so
notify the Issuer shall not relieve the Issuer of its obligations hereunder,
unless the Issuer is materially prejudiced thereby. The Issuer shall defend any
such claim, and the Indenture Trustee, the Securities Administrator or the
Master Servicer, as applicable (each an "Indemnified Party") shall have the
right to employ separate counsel with respect to any such claim and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless: (i) the employment
thereof has been specifically authorized by the Issuer in writing; (ii) such
Indemnified Party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the Issuer and in the reasonable judgment of such counsel it
is advisable for such Indemnified Party to employ separate counsel or (iii) the
Issuer has failed to assume the defense of such claim within a reasonable period
of time following written notice thereof, it being understood, however, with
respect to any event described in clause (ii) or clause (iii) hereof, that the
Issuer shall not, in connection with any one such claim or separate but
substantially similar or related claims in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to local
counsel) at any time for all such Indemnified Parties, which firm shall be
designated in writing by the Indemnified Parties. The Issuer is not obligated to
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee, the Securities Administrator or the Master
Servicer through the Indenture Trustee's, the Securities Administrator's or the
Master Servicer's own willful misconduct, negligence or bad faith.
The Issuer shall indemnify each of the Originator and the Seller to
the extent set forth in Section 5.2 of the Mortgage Loan Sale and Contribution
Agreement.
The Issuer's payment obligations to the Indenture Trustee, the
Securities Administrator, the Master Servicer and the Owner Trustee pursuant to
this Section 6.07 shall survive the discharge of this Indenture and the
termination or resignation of the Indenture Trustee, the Securities
Administrator or the Master Servicer. When the Indenture Trustee, the Securities
Administrator, the Master Servicer or the Owner Trustee incurs expenses after
the occurrence of an Event of Default with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section 6.08. REPLACEMENT OF INDENTURE TRUSTEE OR SECURITIES
ADMINISTRATOR. No resignation or removal of the Indenture Trustee or the
Securities Administrator and no appointment of a successor Indenture Trustee or
Securities Administrator shall become effective until the acceptance of
appointment by the successor Indenture Trustee or Securities Administrator
pursuant to this Section 6.08. The Indenture Trustee or the Securities
Administrator may resign at any time by so notifying the Issuer. Holders of a
majority of Note Balances of the Notes may remove the Indenture Trustee or the
Securities Administrator by so notifying the Indenture Trustee or the Securities
Administrator, as applicable, and may appoint a successor Indenture Trustee or
Securities Administrator. The Issuer shall remove the Indenture Trustee or the
Securities Administrator if:
(i) the Indenture Trustee or the Securities Administrator fails to
comply with Section 6.11 hereof;
(ii) the Indenture Trustee or the Securities Administrator is adjudged
a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or the Securities Administrator or its respective property; or
(iv) the Indenture Trustee or the Securities Administrator otherwise
becomes incapable of acting.
If the Indenture Trustee or the Securities Administrator resigns or is
removed or if a vacancy exists in the office of the Indenture Trustee or the
Securities Administrator for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee and the Securities
Administrator in such event being referred to herein as the retiring Securities
Administrator), the Issuer shall, promptly appoint a successor Indenture Trustee
or Securities Administrator, as applicable.
A successor Indenture Trustee or Securities Administrator shall
deliver a written acceptance of its appointment to the retiring Indenture
Trustee or Securities Administrator, as applicable, and to the Issuer.
Thereupon, the resignation or removal of the retiring Indenture Trustee or
Securities Administrator shall become effective, and the successor Indenture
Trustee or Securities Administrator shall have all the rights, powers and duties
of the Indenture Trustee or Securities Administrator, as applicable, under this
Indenture. The successor Indenture Trustee or Securities Administrator shall
mail a notice of its succession to Noteholders. The retiring Indenture Trustee
or Securities Administrator shall promptly transfer all property held by it as
Indenture Trustee or Securities Administrator to the successor Indenture Trustee
or Securities Administrator, as applicable.
If a successor Indenture Trustee or Securities Administrator does not
take office within 30 days after the retiring Indenture Trustee or Securities
Administrator resigns or is removed, the retiring Indenture Trustee or
Securities Administrator, as applicable, the Issuer or the Holders of a majority
of Note Balances of the Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee or Securities
Administrator.
Notwithstanding the replacement of the Indenture Trustee or Securities
Administrator pursuant to this Section, the Issuer's obligations under Section
6.07 shall continue for the benefit of the retiring Indenture Trustee or
Securities Administrator.
Section 6.09. SUCCESSOR INDENTURE TRUSTEE OR SECURITIES ADMINISTRATOR
BY MERGER. If either the Indenture Trustee or the Securities Administrator
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation, without any
further act, shall be the successor Indenture Trustee or Securities
Administrator, as applicable; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11 hereof.
The Indenture Trustee or the Securities Administrator, as applicable, shall
provide the Rating Agencies with prior written notice of any such transaction.
If at the time such successor or successors by merger, conversion or
consolidation to the Securities Administrator shall succeed to the trusts
created by this Indenture and any of the Notes shall have been authenticated but
not delivered, any such successor to the Securities Administrator may adopt the
certificate of authentication of any predecessor trustee and deliver such Notes
so authenticated; and if at that time any of the Notes shall not have been
authenticated, any successor to the Securities Administrator may authenticate
such Notes either in the name of any predecessor hereunder or in the name of the
successor to the Securities Administrator; and in all such cases such
certificates shall have the full force which it is in the Notes or in this
Indenture provided that the certificate of the Securities Administrator shall
have.
Section 6.10. APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Noteholders, such title
to the Trust, or any part hereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Indenture
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 6.11 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Collateral or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee
shall at all times satisfy the requirements of TIA ss. 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it or its
parent shall have a long-term debt rating of "Baa3" or better by ▇▇▇▇▇'▇ and
"BBB" or better by S&P. The Indenture Trustee shall comply with TIA ss. 310(b),
including the optional provision permitted by the second sentence of TIA ss.
310(b)(9); PROVIDED, HOWEVER, that there shall be excluded from the operation of
TIA ss. 310(b)(1) any indenture or indentures under which other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA ss. 310(b)(1) are met.
Section 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 6.13. REPRESENTATIONS AND WARRANTIES. Each of the Indenture
Trustee and the Securities Administrator hereby represents that:
(i) It is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Indenture by it, and the
performance and compliance with the terms of this Indenture by it, will not
violate its charter or bylaws.
(iii) It has the full power and authority to enter into and consummate
all transactions contemplated by this Indenture has duly authorized the
execution, delivery and performance of this Indenture, and has duly
executed and delivered this Indenture.
(iv) This Indenture, assuming due authorization, execution and
delivery by the Issuer, constitutes a valid, legal and binding obligation
of it, enforceable against it in accordance with the terms hereof, subject
to (A) applicable bankruptcy, insolvency, receivership, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) Each of the Indenture Trustee and the Securities Administrator is
a "securities intermediary," as such term is defined in Section
8-102(a)(14)(B) of the New York UCC, that in the ordinary course of its
business maintains "securities accounts" for others, as such term is used
in Section 8-501 of the New York UCC. The local law of jurisdiction of each
of the Indenture Trustee and the Securities Administrator as securities
intermediary shall be the State of New York.
Section 6.14. DIRECTIONS TO INDENTURE TRUSTEE AND SECURITIES
ADMINISTRATOR. The Indenture Trustee and the Securities
Administrator are hereby directed:
(i) in the case of the Indenture Trustee, to accept the pledge of the
Mortgage Loans and hold the assets of the Trust in trust for the
Noteholders;
(ii) in the case of the Securities Administrator, to authenticate and
deliver the Notes substantially in the form prescribed by Exhibit A to this
Indenture in accordance with the terms of this Indenture; and
(iii) to take all other actions as shall be required to be taken by
the terms of this Indenture.
Section 6.15. THE AGENTS. The provisions of this Indenture relating to
the limitations of the Indenture Trustee's and the Securities Administrator's
liability and to its indemnity, rights and protections shall inure also to the
Paying Agent and Note Registrar.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. ISSUER TO FURNISH SECURITIES ADMINISTRATOR NAMES AND
ADDRESSES OF NOTEHOLDERS.
The Issuer will furnish or cause to be furnished to the Securities
Administrator (a) not more than five days after each Record Date, a list, in
such form as the Securities Administrator may reasonably require, of the names
and addresses of the Holders of Notes as of such Record Date, and (b) at such
other times as the Securities Administrator may request in writing, within 30
days after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; PROVIDED, HOWEVER, that so long as the Securities Administrator is
the Note Registrar, no such list shall be required to be furnished to the
Securities Administrator.
Section 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Securities Administrator shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 hereof and the names and addresses of Holders of Notes received
by the Securities Administrator in its capacity as Note Registrar. The
Securities Administrator may destroy any list furnished to it as provided in
such Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders or Note Owners may communicate pursuant to TIA ss.
312(b) with other Noteholders or Note Owners with respect to their rights under
this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee, the Securities Administrator
and the Note Registrar shall have the protection of TIA ss. 312(c).
Section 7.03. REPORTS OF ISSUER.
(a) Subject to Section 3.13 of the Servicing Agreement,
(i) The Securities Administrator shall file with the Commission on
behalf of the Issuer, with a copy to the Issuer within 15 days before the
Issuer is required to file the same with the Commission, the annual reports
and the information, documents and other reports (or such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) The Securities Administrator shall file with the Commission, on
behalf of the Issuer, in accordance with rules and regulations prescribed
from time to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the conditions
and covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) The Securities Administrator shall supply (and the Securities
Administrator shall transmit by mail to all Noteholders described in TIA
ss. 313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii) of this
Section 7.03(a) and by rules and regulations prescribed from time to time
by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31st of each year.
Section 7.04. REPORTS BY SECURITIES ADMINISTRATOR. If required by TIA
ss. 313(a), within 60 days after each January 30th beginning with March 31,
2006, the Securities Administrator (on behalf of the Indenture Trustee) shall
mail to each Noteholder as required by TIA ss. 313(c) a brief report dated as of
such date that complies with TIA ss. 313(a). The Securities Administrator (on
behalf of the Indenture Trustee) also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Securities Administrator with the Commission via ▇▇▇▇▇ and each
stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee and the Securities Administrator if and when the Notes are
listed on any stock exchange.
Section 7.05. STATEMENTS TO NOTEHOLDERS.
(a) Not later than each Payment Date the Securities Administrator
shall prepare a statement (the "Remittance Report") containing the information
set forth below with respect to such Payment Date, which information shall be
based solely upon the loan level information furnished by the Servicer and the
Master Servicer, as applicable, upon which the Securities Administrator shall
conclusively rely without independent verification thereof:
(i) the Available Funds and the Note Rate for each Class for the
related Payment Date;
(ii) the aggregate amount of the payment to each Class of Notes on
such Payment Date;
(iii) the amount of the payment set forth in paragraph (ii) above in
respect of interest, the amount thereof in respect of any Class Interest
Carryover Shortfall, and the amount of any Class Interest Carryover
Shortfall remaining and the amount thereof in respect of any Class N
Interest Shortfall, and the amount of any Class N Interest Shortfall
remaining;
(iv) the amount of the payment set forth in paragraph (ii) above in
respect of principal and the amount thereof in respect of the Class
Principal Carryover Shortfall, and any remaining Class Principal Carryover
Shortfall;
(v) the amount of Excess Interest paid as principal;
(vi) the aggregate amount of the Servicing Fee and the Master
Servicing Fee for such Payment Date;
(vii) the Pool Balance and the aggregate Principal Balance of the
Mortgage Loans as of the close of business on the last day of the preceding
Due Period;
(viii) the Class Note Balance of each Class of Notes after giving
effect to payments allocated to principal;
(ix) the Overcollateralization Amount and the Required
Overcollateralization Amount as of the close of business on the Payment
Date, after giving effect to payments of principal on such Payment Date;
(x) the number and aggregate unpaid principal balance of Mortgage
Loans in respect of which (1) one Monthly Payment is Delinquent, (2) two
Monthly Payments are Delinquent, (3) three Monthly Payments are Delinquent
and (4) foreclosure proceedings have begun;
(xi) whether a Cumulative Loss Event or a Delinquency Event has
occurred and is continuing and the calculation thereof;
(xii) the aggregate amount of Principal Prepayments received during
the related Prepayment Period;
(xiii) the amount of all Curtailments that were received during the
Due Period;
(xiv) the principal portion of all Monthly Payments received during
the Due Period;
(xv) the interest portion of all Monthly Payments received on the
Mortgage Loans during the Due Period;
(xvi) the Net Monthly Excess Cashflow, if any, for such Distribution
Date;
(xvii) the amount of the Monthly Advances and the Compensating
Interest payment to be made on the Determination Date;
(xviii) the amount to be distributed to the Certificates for the
Payment Date;
(xix) the weighted average remaining term to maturity of the Mortgage
Loans and the weighted average Loan Rate as of the first day of the related
Due Period;
(xx) the amount of all payments or reimbursements to the Servicer
pursuant to Sections 3.03(ii) and (vi) of the Servicing Agreement (as
reported by the Servicer);
(xxi) the number of Mortgage Loans outstanding at the beginning and at
the end of the related Due Period;
(xxii) the amount of Liquidation Loan Losses experienced during the
preceding Due Period and the Cumulative Net Losses as a percentage of the
Cut-Off Date Pool Balance;
(xxiii) as of the end of the preceding calendar month, the number and
Principal Balance of Mortgage Loans which are 30-59 days delinquent; the
number and Principal Balance of Mortgage Loans which are 60-89 days
delinquent; the number and Principal Balance of Mortgage Loans which are 90
or more days delinquent (including the number and Principal Balance of
Mortgage Loans which are in foreclosure; the number and Principal Balance
of Mortgage Loans in bankruptcy; and the number and Principal Balance of
Mortgage Loans which are REO Property, each separately set forth) (for the
avoidance of doubt, delinquencies in this clause (xxi) are measured in
accordance with the OTS method);
(xxiv) the amounts of Applied Realized Loss Amounts for the applicable
Due Period and the cumulative amount of Applied Realized Loss Amounts to
date;
(xxv) the number and aggregate Principal Balance of Mortgage Loans,
other than Mortgage Loans in default or imminent default, that were
modified by the Servicer during the related Due Period (as reported by the
Servicer);
(xxvi) the amount of Basis Risk Shortfall Amount paid to the Class
A-1A Notes, stating separately any amounts received from the Cap Provider
with respect to the Class A-1A Interest Rate Cap Agreement and the Class N
Interest Rate Cap Agreement, and the amount of Basis Risk Shortfall Amount
remaining for each such Class;
(xxvii) if the Stepdown Date is in effect (and if not, the months
remaining until the Stepdown Date);
(xxviii) [(a) the Delinquency Percentage, the numerator and the
denominator used to calculate the Delinquency Percentage and whether the
Delinquency Percentage exceeds the level set forth in clause (a) of the
definition of Trigger Event, (b) the Cumulative Realized Loss Percentage,
the numerator and the denominator used to calculate the Cumulative Realized
Loss Percentage and whether the Cumultaive Realized Loss Percentage exceeds
the level set forth in clause (b) of the definition of Trigger Event];
(xxix) the total cashflows received and the general sources thereof;
(xxx) the amount on deposit Net WAC Rate Carryover Reserve Account;
(xxxi) if applicable, material modifications, extensions or waivers to
Mortgage Loan terms, fees, penalties or payments during the preceding
calendar month or that have become material over time;
(xxxii) the applicable Record Dates, Accrual Periods and Determination
Dates for calculating distributions for such Distribution Date;
(xxxiii) the fees and expenses accrued and paid on such Distribution
Date and to whom such fees and expenses were paid; and
(xxxiv) material breaches of representations and warranties regarding
the Mortgage Loans.
(b) The Securities Administrator shall make available such report to
the Servicer, the Master Servicer, the Indenture Trustee, the Seller, the
Noteholders, the Rating Agencies, Bloomberg (at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and Intex Solutions (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) on the Payment Date.
The Securities Administrator may fully rely upon and shall have no liability
with respect to information provided by the Servicer or the Master Servicer. In
the case of information furnished pursuant to subclauses (ii), (iii), (iv) and
(vi) above, the amounts shall be expressed in a separate section of the report
as a dollar amount for each Class for each $1,000 original dollar amount as of
the related Cut-Off Date.
(c) The Securities Administrator will make the Remittance Report (and,
at its option, any additional files containing the same information in an
alternative format) available each month to Noteholders and the parties to this
Indenture via the Securities Administrator's internet website. The Securities
Administrator's internet website shall initially be located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling
the Securities Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties
that are unable to use the above distribution options are entitled to have a
paper copy mailed to them via first class mail by calling the customer service
desk and indicating such. The Securities Administrator shall have the right to
change the way Remittance Reports are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Securities Administrator shall provide timely and adequate notification to all
above parties regarding any such changes. As a condition to access the
Securities Administrator's internet website, the Securities Administrator may
require registration and the acceptance of a disclaimer. The Securities
Administrator will not be liable for the dissemination of information in
accordance with this Agreement. The Securities Administrator shall also be
entitled to rely on but shall not be responsible for the content or accuracy of
any information provided by third parties for purposes of preparing the
Remittance Report and may affix thereto any disclaimer it deems appropriate in
its reasonable discretion (without suggesting liability on the part of any other
party hereto).
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee or the Securities Administrator pursuant
to this Indenture. The Securities Administrator shall apply all such money
received by it as provided in this Indenture. Except as otherwise expressly
provided in this Indenture, if any default occurs in the making of any payment
or performance under any agreement or instrument that is part of the Trust, the
Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
Section 8.02. TRUST ACCOUNTS.
(a) On or prior to the Closing Date, the Issuer shall cause the
Securities Administrator to establish and maintain, in the name of the Indenture
Trustee, for the benefit of the Noteholders, the Payment Account as provided in
Section 3.01 hereof.
(b) On each Payment Date, the Securities Administrator shall pay all
remaining amounts on deposit in the Payment Account to the Noteholders in
respect of the Notes and to such other persons in the order of priority set
forth in Section 3.05 hereof (except as otherwise provided in Section 5.04(b)
hereof).
Section 8.03. OFFICER'S CERTIFICATE. The Indenture Trustee shall
receive at least seven Business Days' notice when requested by the Issuer to
take any action pursuant to Section 8.05(a) hereof, accompanied by copies of any
instruments to be executed, and the Indenture Trustee shall also require, as a
condition to such action, an Officer's Certificate, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with.
Section 8.04. TERMINATION UPON PAYMENT TO NOTEHOLDERS. This Indenture
and the respective obligations and responsibilities of the Issuer, the Indenture
Trustee and the Securities Administrator created hereby shall terminate upon the
payment to Noteholders, the Certificate Paying Agent on behalf of the Owner
Trustee, the Certificateholders, the Indenture Trustee and the Securities
Administrator of all amounts required to be paid pursuant to Article III;
PROVIDED, HOWEVER, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Section 8.05. RELEASE OF COLLATERAL.
(a) Subject to the payment of its fees and expenses and the fees and
expenses of the Securities Administrator, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture, including for the purposes
of any repurchase of a Mortgage Loan pursuant to Section 3.16 of the Servicing
Agreement. No party relying upon an instrument executed by the Indenture Trustee
as provided in Article VIII hereunder shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent,
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as (i) there are no
Notes Outstanding and (ii) all sums due to the Indenture Trustee and the
Securities Administrator pursuant to this Indenture have been paid, release any
remaining portion of the Trust that secured the Notes from the lien of this
Indenture.
(c) The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.05 only upon receipt of a request from the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel stating
that all applicable requirements have been satisfied.
Section 8.06. SURRENDER OF NOTES UPON FINAL PAYMENT. By acceptance of
any Note, the Holder thereof agrees to surrender such Note to the Securities
Administrator promptly, prior to such Noteholder's receipt of the final payment
thereon.
Section 8.07. OPTIONAL REDEMPTION OF THE NOTES.
(a) The Seller may, at its option, redeem the Notes on any Payment
Date on or after the Optional Redemption Date, by purchasing (on a
servicing-retained basis), on such Payment Date, all of the outstanding Mortgage
Loans and REO Properties at a price equal to the greater of (I) the sum of (w)
100% of the aggregate Principal Balance of the Mortgage Loans plus (x) the
lesser of (A) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by the
Seller and at the Seller's expense and (B) the Principal Balance of the Mortgage
Loan related to such REO Property plus (y) in each case, the greater of (i) the
aggregate amount of accrued and unpaid interest on the Mortgage Loans through
the related Due Period and (ii) thirty (30) days' accrued interest thereon at a
rate equal to the Loan Rate, in each case net of the Servicing Fee and the
Master Servicing Fee and (II) the sum of (a) the fair market value of the assets
of the Trust and (b) the greater of (i) the aggregate amount of accrued and
unpaid interest on the Mortgage Loans through the related Due Period and (ii)
thirty (30) days' accrued interest thereon at a rate equal to the Loan Rate, in
each case net of the Servicing Fee and the Master Servicing Fee (the "Redemption
Price"); PROVIDED, HOWEVER, that the Seller hereby covenants and agrees not to
exercise its rights under this Section 8.07 on any Payment Date unless the
Redemption Price is sufficient to redeem in full all of the Class N Notes
(including all accrued and unpaid interest thereon). Following an Optional
Redemption of the Notes and a purchase of the Mortgage Loans and any REO
Properties pursuant to this Section 8.07, the Servicer shall be entitled to
receive the Servicing Fee as compensation for its continued servicing of such
Mortgage Loans and REO Properties.
(b) In order to exercise the foregoing option, the Seller shall
provide written notice of its exercise of such option to the Indenture Trustee,
the Securities Administrator and the Owner Trustee at least 15 days prior to its
exercise. Following receipt of the notice, the Securities Administrator shall
provide notice to the Noteholders of the final payment on the Notes. In
addition, the Seller shall, not less than one Business Day prior to the proposed
Payment Date on which such redemption is to be made, deposit the aggregate
redemption price specified in (a) above with the Securities Administrator, who
shall deposit the aggregate redemption price into the Payment Account and shall,
on the Payment Date after receipt of the funds, apply such funds to make final
payments of principal and interest on the Notes in accordance with Section
3.05(b) and (c) hereof and payment in full to the Indenture Trustee and the
Securities Administrator, and this Indenture shall be discharged subject to the
provisions of Section 4.10 hereof. If for any reason the amount deposited by the
Seller is not sufficient to make such redemption or such redemption cannot be
completed for any reason, the amount so deposited by the Seller with the
Securities Administrator shall be immediately returned to the Seller in full and
shall not be used for any other purpose or be deemed to be part of the Trust.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuer, the Indenture Trustee and the
Securities Administrator, when authorized by an Issuer Request, at any time and
from time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the provisions of the TIA as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee and the
Securities Administrator, for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture;
(vi) to make any other provisions with respect to matters or questions
arising under this Indenture or in any supplemental indenture; provided,
that such action (as evidenced by either (i) an Opinion of Counsel
delivered to the Depositor, the Issuer, the Seller, the Securities
Administrator and the Indenture Trustee or (ii) confirmation from the
Rating Agencies that such amendment will not result in the reduction or
withdrawal of the rating of any Class of Notes) shall not materially and
adversely affect the interests of the Holders of the Notes;
(vii) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI hereof; or
(viii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA;
PROVIDED, HOWEVER, that no such indenture supplements shall be entered into
unless the Indenture Trustee and the Securities Administrator shall have
received an Opinion of Counsel as to the enforceability of any such indenture
supplement and to the effect that (i) such indenture supplement is permitted
hereunder and (ii) entering into such indenture supplement will not result in a
"substantial modification" of the Notes under Treasury Regulation Section
1.1001-3 or adversely affect the status of the Notes as indebtedness for federal
income tax purposes.
Each of the Indenture Trustee and the Securities Administrator is
hereby authorized to join in the execution of any such supplemental indenture
and to make any further appropriate agreements and stipulations that may be
therein contained.
(b) The Issuer, the Indenture Trustee and the Securities
Administrator, when authorized by an Issuer Request, may, also without the
consent of any of the Holders of the Notes and prior notice to the Rating
Agencies, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; PROVIDED, HOWEVER, that
such action as evidenced by an Opinion of Counsel, (i) is permitted by this
Indenture, and shall not (ii) adversely affect in any material respect the
interests of any Noteholder (which may be evidenced by confirmation from the
Rating Agencies that such amendment will not result in the reduction or
withdrawal of the rating of any Class of Notes) or (iii) if 100% of the
Certificates are not owned by the Seller, cause the Issuer to be subject to an
entity level tax for federal income tax purposes.
Section 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. The
Issuer, the Indenture Trustee and the Securities Administrator, when authorized
by an Issuer Request, also may, with prior notice to the Rating Agencies and,
with the consent of the Holders of not less than a majority of the Note Balance
of each Class of Notes affected thereby, by Act (as defined in Section 10.03
hereof) of such Holders delivered to the Issuer, the Indenture Trustee and the
Securities Administrator, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Note affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Trust to payment of principal of or interest on the Notes, or change any
place of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the application
of funds available therefor, as provided in Article V, to the payment of
any such amount due on the Notes on or after the respective due dates
thereof;
(ii) reduce the percentage of the Note Balances of the Notes, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding" or modify or alter the exception in the
definition of the term "Holder";
(iv) reduce the percentage of the Note Balances of the Notes required
to direct the Indenture Trustee to direct the Issuer to sell or liquidate
the Trust pursuant to Section 5.04 hereof;
(v) modify any provision of this Section 9.02 except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust or,
except as otherwise permitted or contemplated herein, terminate the lien of
this Indenture on any property at any time subject hereto or deprive the
Holder of any Note of the security provided by the lien of this Indenture;
and PROVIDED, FURTHER, that such action shall not, as evidenced by an Opinion of
Counsel, cause the Issuer (if 100% of the Certificates are not owned by the
Seller) to be subject to an entity level tax.
Any such action shall not (as evidenced by either (i) an Opinion of
Counsel delivered to the Depositor, the Issuer, the Indenture Trustee and the
Securities Administrator or (ii) confirmation from the Rating Agencies that such
amendment will not result in the reduction or withdrawal of the rating of any
Class of Notes) adversely affect in any material respect the interest of any
Holder (other than a Holder who shall consent to such supplemental indenture).
It shall not be necessary for any Act of Noteholders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer, the Indenture Trustee and
the Securities Administrator of any supplemental indenture pursuant to this
Section 9.02, the Securities Administrator shall mail to the Holders of the
Notes to which such amendment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental indenture. Any failure
of the Securities Administrator to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, each of the Indenture Trustee and the Securities
Administrator shall be entitled to receive (in addition to the documents
required by Section 10.01), and subject to Sections 6.01 and 6.02 hereof, shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. Each of the Indenture Trustee and the Securities Administrator may,
but shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's or the Securities Administrator's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Securities Administrator, the
Issuer and the Holders of the Notes shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee or the
Securities Administrator shall, bear a notation in form approved by the
Indenture Trustee and the Securities Administrator as to any matter provided for
in such supplemental indenture. If the Issuer, the Indenture Trustee or the
Securities Administrator shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee, the Securities Administrator
and the Issuer, to any such supplemental indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Securities Administrator in
exchange for Outstanding Notes.
ARTICLE X
MISCELLANEOUS
Section 10.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the Indenture
Trustee or the Securities Administrator to take any action under any provision
of this Indenture, the Issuer shall furnish to the Indenture Trustee or the
Securities Administrator, as applicable, (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that, in the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with;
(iv) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with; and
(v) if the signatory of such certificate or opinion is required to be
Independent, the statement required by the definition of the term
"Independent Certificate."
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 10.01(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days prior to such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited and
a report from a nationally recognized accounting firm verifying such value.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate from
a nationally recognized accounting firm as to the same matters, if the fair
value of the securities to be so deposited and of all other such securities
made the basis of any such withdrawal or release since the commencement of
the then current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause (ii),
is 10% or more of the Note Balances of the Notes, but such a certificate
need not be furnished with respect to any securities so deposited, if the
fair value thereof as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent of the Note Balances of the
Notes.
(iii) Whenever any property or securities are to be released from the
lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days prior
to such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property or securities released from the lien
of this Indenture since the commencement of the then-current calendar year,
as set forth in the certificates required by clause (iii) above and this
clause (iv), equals 10% or more of the Note Principal Balances of the
Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the then Note Principal Balances of the Notes.
Section 10.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Seller or the Issuer, stating that the information with respect to such
factual matters is in the possession of the Seller or the Issuer, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's or the Securities Administrator's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
Section 10.03. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Securities Administrator, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01
hereof) conclusive in favor of the Securities Administrator and the Issuer, if
made in the manner provided in this Section 10.03 hereof.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Securities
Administrator deems sufficient.
(c) The ownership of Notes shall be proved by the Note Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Securities Administrator or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 10.04. NOTICES ETC., TO INDENTURE TRUSTEE, SECURITIES
ADMINISTRATOR, ISSUER AND RATING AGENCIES.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or act of Noteholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee or the Securities Administrator by any
Noteholder or by the Issuer shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Indenture
Trustee or the Securities Administrator at the Corporate Trust Office. The
Indenture Trustee or the Securities Administrator, as applicable, shall
promptly transmit any notice received by it from the Noteholders to the
Issuer; or
(ii) the Issuer by the Indenture Trustee, the Securities Administrator
or by any Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed first-class, postage prepaid to the Issuer addressed to:
Renaissance Home Equity Loan Trust [o], in care of [o], ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration, or at any other address
previously furnished in writing to the Indenture Trustee and the Securities
Administrator by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee and the
Securities Administrator.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee, the Securities Administrator or the Owner Trustee shall be in
writing, mailed first-class postage pre-paid, to (i) in the case of Moody's, at
the following address: ▇▇▇▇▇'▇ Investors Service, Inc., Residential Mortgage
Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii) in the
case of S&P, at the following address: Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Asset Backed Surveillance
Department and (iii) in the case of Fitch, at the following address: Fitch
Ratings, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
Section 10.05. NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at such Person's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given regardless of
whether such notice is in fact actually received.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Securities
Administrator but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Securities Administrator shall be
deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
Section 10.06. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the TIA,
such required provision shall control.
The provisions of TIA ▇▇.▇▇. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 10.07. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 10.08. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
and the Securities Administrator in this Indenture shall bind its successors,
co-trustees and agents.
Section 10.09. SEPARABILITY. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 10.10. THIRD PARTY BENEFICIARY. The Master Servicer shall be a
third party beneficiary for purposes of Section 6.07 of this Indenture.
Section 10.11. LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 10.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.13. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 10.14. RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
at its expense (which may be counsel to the Indenture Trustee or the Securities
Administrator or any other counsel reasonably acceptable to the Indenture
Trustee and the Securities Administrator) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 10.15. ISSUER OBLIGATION. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee,
the Indenture Trustee or the Securities Administrator on the Notes or under this
Indenture or any certificate or other writing delivered in connection herewith
or therewith, against (i) the Indenture Trustee, the Securities Administrator or
the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee, the Securities
Administrator or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee, the Indenture Trustee or
the Securities Administrator or of any successor or assign of any of them in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee, the Securities Administrator and
the Owner Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI, VII and VIII of the Trust Agreement.
Section 10.16. NO PETITION. The Indenture Trustee and the Securities
Administrator, by entering into this Indenture, and each Noteholder, by
accepting a Note, hereby covenant and agree that they will not at any time prior
to one year from the date of termination hereof, institute against the Depositor
or the Issuer, or join in any institution against the Depositor or the Issuer
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Basic Documents, except for filing proofs of
claim.
Section 10.17. INSPECTION. The Issuer agrees that, at its expense, on
reasonable prior notice, it shall permit any representative of the Indenture
Trustee or the Securities Administrator, during the Issuer's normal business
hours, to examine all the books of account, records, reports and other papers of
the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees, and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee or the Securities
Administrator, as applicable, shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
Section 10.18. NO RECOURSE TO OWNER TRUSTEE. It is expressly
understood and agreed by the parties hereto that (a) this Indenture is executed
and delivered by [o], not individually or personally, but solely as Owner
Trustee of Renaissance Home Equity Loan Trust [o], in the exercise of the powers
and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by [o] but
is made and intended for the purpose for binding only the Issuer, (c) nothing
herein contained shall be construed as creating any liability of [o],
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto and (d) under no circumstances shall [o] be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Indenture or any other related documents.
Section 10.19. PROOFS OF CLAIM. The Indenture Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee, its agents and counsel) and the Noteholders allowed in
any judicial proceedings relative to the Issuer (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Noteholder to make such payments to the Indenture
Trustee, as administrative expenses associated with any such proceeding, and, in
the event that the Indenture Trustee shall consent to the making of such
payments directly to the Noteholder to pay to the Indenture Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee, its agents and counsel, and any other amounts due to
the Indenture Trustee under Section 6.07 hereof. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the Indenture Trustee
under Section 6.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Noteholders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Indenture Trustee to authorize or consent to or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Noteholder of the rights of any Noteholder thereof, or
to authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
IN WITNESS WHEREOF, the Issuer, the Indenture Trustee and the
Securities Administrator have caused their names to be signed hereto by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
RENAISSANCE HOME EQUITY LOAN TRUST
[o], as Issuer
By: [o], not in its individual capacity
but solely as Owner Trustee
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer
[o] as Indenture Trustee
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
[o] as Securities Administrator
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
For purposes of Section 6.07:
[o] as Master Servicer
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
On this ___ day of [o], before me personally appeared __________________ to
me known, who being by me duly sworn, did depose and say, that he is a
__________________ of the Owner Trustee, one of the corporations described in
and which executed the above instrument; and that he signed his name thereto by
like order.
---------------------------
Notary Public
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On this ___ day of [o], before me personally appeared __________________ to
me known, who being by me duly sworn, did depose and say, that he is a
__________________ of the Indenture Trustee, one of the corporations described
in and which executed the above instrument; and that he signed his name thereto
by like order.
---------------------------
Notary Public
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On this ___ day of [o], before me personally appeared ________________ to
me known, who being by me duly sworn, did depose and say, that she is a
___________________ of the Securities Administrator, one of the corporations
described in and which executed the above instrument; and that she signed her
name thereto by like order.
---------------------------
Notary Public
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On this ___ day of [o], before me personally appeared ________________ to
me known, who being by me duly sworn, did depose and say, that she is a
___________________ of the Master Servicer, one of the corporations described in
and which executed the above instrument; and that she signed her name thereto by
like order.
---------------------------
Notary Public
NOTARY PUBLIC
[NOTARIAL SEAL]
EXHIBIT A - FORM OF OFFERED NOTES
FORM OF CLASS ___ NOTES
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES ADMINISTRATOR
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE
DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF
THE INDENTURE.
THIS NOTE IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON
THIS NOTE.
PRINCIPAL OF THIS NOTE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
[FOR CLASS M NOTES: THIS NOTE IS SUBORDINATE TO CERTAIN NOTES TO THE EXTENT
DESCRIBED IN THE INDENTURE REFERRED TO HEREIN].
RENAISSANCE HOME EQUITY LOAN TRUST [o]
HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES [o]
CLASS ____
AGGREGATE NOTE BALANCE: NOTE RATE:
$_____________________
INITIAL NOTE BALANCE OF THIS BOND: BOND NO.
$_____________________
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Renaissance Home Equity Loan Trust [o] (the "Issuer"), a Delaware statutory
trust, for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of ($_________________) in monthly installments on
the twenty-fifth day of each month or, if such day is not a Business Day, the
next succeeding Business Day (each a "Payment Date"), commencing in January 2006
and ending on or before the Payment Date occurring on the Final Stated Maturity
Date and to pay interest on the Note Balance of this Note (this "Note")
outstanding from time to time as provided below.
This Note is one of a duly authorized issue of the Issuer's Home Equity
Loan Asset-Backed Notes, Series [o] (the "Notes"), issued under an Indenture
dated as of [o] (the "Indenture"), among the Issuer, [o] as indenture trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture) and [o] as securities administrator (the "Securities
Administrator", which term includes any successor Securities Administrator under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of
the Issuer, the Indenture Trustee, the Securities Administrator and the Holders
of the Notes and the terms upon which the Notes are to be authenticated and
delivered. All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Payments of principal and interest on this Note will be made on each
Payment Date to the Noteholder of record as of the related Record Date. The
"Note Balance" of a Note as of any date of determination is equal to the Initial
Note Balance thereof, reduced by the aggregate of all amounts previously paid
with respect to such Note on account of principal and the aggregate amount of
cumulative Realized Losses allocated to such Note on all prior Payment Dates.
The principal of, and interest on, this Note are due and payable as
described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Note shall
be equal to this Note's PRO RATA share of the aggregate payments on all Class
____ Notes as described above, and shall be applied as between interest and
principal as provided in the Indenture.
All principal and interest accrued on the Notes, if not previously paid,
will become finally due and payable at the Final Stated Maturity Date.
The Notes are subject to redemption in whole, but not in part, by the
Seller on any Payment Date on or after the Optional Redemption Date.
The Issuer shall not be liable upon the indebtedness evidenced by the Notes
except to the extent of amounts available from the Trust which constitutes
security for the payment of the Notes. The assets included in the Trust will be
the sole source of payments on the Class ____ Notes, and each Holder hereof, by
its acceptance of this Note, agrees that (i) such Note will be limited in right
of payment to amounts available from the Trust as provided in the Indenture and
(ii) such Holder shall have no recourse to the Issuer, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Seller, the Servicer, the
Master Servicer or any of their respective affiliates, or to the assets of any
of the foregoing entities, except the assets of the Issuer pledged to secure the
Class ____ Notes pursuant to the Indenture and the rights conveyed to the Issuer
under the Indenture.
Any payment of principal or interest payable on this Note which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Note is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Note Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Note, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Note delivered to the Securities
Administrator at least five Business Days prior to the Record Date, any payment
of principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Holder. All scheduled reductions in the Note Balance of a
Note (or one or more predecessor Notes) effected by payments of principal made
on any Payment Date shall be binding upon all Holders of this Note and of any
note issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof, whether or not such payment is noted on such Note. The final
payment of this Note shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the office or agency of the Issuer
maintained by it for such purpose pursuant to Section 3.02 of the Indenture.
Subject to the foregoing provisions, each Note delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Note shall carry the right to unpaid principal and interest that were
carried by such other Note.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Notes, the Notes may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Note Balance of the Notes, the amount payable to the Holder of this Note will be
equal to the sum of the unpaid Note Balance of the Notes, together with accrued
and unpaid interest thereon as described in the Indenture. The Indenture
provides that, notwithstanding the acceleration of the maturity of the Notes,
under certain circumstances specified therein, all amounts collected as proceeds
of the Trust securing the Notes or otherwise shall continue to be applied to
payments of principal of and interest on the Notes as if they had not been
declared due and payable.
The failure to pay any Class Interest Carryover Shortfall at any time when
funds are not available to make such payment as provided in the Indenture shall
not constitute an Event of Default under the Indenture.
The Holder of this Note or Beneficial Owner of any interest herein is
deemed to represent that either (1) it is not acquiring this Note with Plan
Assets or (2)(A) the acquisition, holding and transfer of this Note will not
give rise to a nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and (B) this Note is rated investment grade or better
and such person believes that this Note is properly treated as indebtedness
without substantial equity features for purposes of the DOL Regulations, and
agrees to so treat this Note. Alternatively, regardless of the rating of this
Note, such person may provide the Indenture Trustee, the Securities
Administrator and the Owner Trustee with an Opinion of Counsel, which Opinion of
Counsel will not be at the expense of the Issuer, the Seller, any Underwriter,
the Owner Trustee, the Indenture Trustee, the Securities Administrator, the
Servicer, the Master Servicer or any successor servicer which opines that the
acquisition, holding and transfer of this Note or interest herein is permissible
under applicable law, will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Issuer, the Seller, any Underwriter, the Owner Trustee, the Indenture Trustee,
the Securities Administrator, the Servicer, the Master Servicer or any successor
servicer to any obligation in addition to those undertaken in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Note Register of the
Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Note at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Securities Administrator, one or more new
Notes of any authorized denominations and of a like aggregate initial Note
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee, the Securities Administrator and any agent of the
Issuer, the Indenture Trustee or the Securities Administrator may treat the
Person in whose name this Note is registered as the owner of such Note (i) on
the applicable Record Date for the purpose of making payments and interest of
such Note and (ii) on any other date for all other purposes whatsoever, as the
owner hereof, whether or not this Note be overdue, and neither the Issuer, the
Indenture Trustee, the Securities Administrator nor any such agent of any of
them shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Holders of a majority of all Notes at the time
outstanding. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the aggregate Note Balance of the
Notes on behalf of the Holders of all the Notes, to waive any past Default under
the Indenture and its consequences. Any such waiver by the Holder, at the time
of the giving thereof, of this Note (or any one or more predecessor Notes) shall
bind the Holder of every Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon such Note. The Indenture also permits the Issuer, the
Indenture Trustee and the Securities Administrator to amend or waive certain
terms and conditions set forth in the Indenture without the consent of the
Holders of the Notes issued thereunder.
Initially, this Note will be registered in the name of Cede & Co. as
nominee of DTC, acting in its capacity as the Depository for this Note. This
Note will be delivered by the clearing agency in denominations as provided in
the Indenture and subject to certain limitations therein set forth. This Note is
exchangeable for a like aggregate initial Note Balance of Notes of different
authorized denominations, as requested by the Holder surrendering same.
Unless the Certificate of Authentication hereon has been executed by the
Securities Administrator by manual signature, this Note shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
AS PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS
NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by [o], not in its individual capacity but solely as Owner Trustee.
Dated: [o]
RENAISSANCE HOME EQUITY LOAN TRUST
[o]
BY: [o], not in its individual capacity
but solely in its capacity as Owner
Trustee
By:____________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
[o]
as Securities Administrator
By:______________________________________
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- __________ Custodian
________________________________
(Cust) (Minor)
under Uniform Gifts to Minor Act
___________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE:
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Please print or typewrite name and address, including zip code, of assignee)
--------------------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:
----------------------------------- ----------------------------------
Signature Guaranteed by
--------------------------------------------------------
NOTICE: The signature(s) to this assignment must correspond with the name
as it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
EXHIBIT A - FORM OF CLASS N NOTES
FORM OF CLASS ___ NOTES
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE
DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF
THE INDENTURE.
THIS NOTE IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON
THIS NOTE.
PRINCIPAL OF THIS NOTE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE IS SUBORDINATE TO THE OFFERED NOTES TO THE EXTENT DESCRIBED IN THE
INDENTURE REFERRED TO HEREIN.
THIS NOTE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.16 OF THE INDENTURE REFERRED
TO HEREIN. [FOR REGULATION S ONLY: NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES (AS DEFINED IN
RULES 901 THROUGH 905 OF THE SECURITIES ACT ("REGULATION S")) OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), IN THE
ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.]
NO TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT ("PLAN") THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS NOTE OR SUCH INTEREST HEREIN ON BEHALF
OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, UNLESS SUCH PLAN OR PERSON
PROVIDES THE CERTIFICATION DESCRIBED IN SECTION 4.16 OF THE INDENTURE REFERRED
TO HEREIN.
RENAISSANCE HOME EQUITY LOAN TRUST [o]
HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES [o]
CLASS ____
AGGREGATE NOTE BALANCE: NOTE RATE:
$_____________________
INITIAL NOTE BALANCE OF THIS BOND: BOND NO. 1
$_____________________
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Renaissance Home Equity Loan Trust [o] (the "Issuer"), a Delaware statutory
trust, for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of ($_________________) in monthly installments on
the twenty-fifth day of each month or, if such day is not a Business Day, the
next succeeding Business Day (each a "Payment Date"), commencing in January 2006
and ending on or before the Payment Date occurring on the Final Stated Maturity
Date and to pay interest on the Note Balance of this Note (this "Note")
outstanding from time to time as provided below.
This Note is one of a duly authorized issue of the Issuer's Home Equity
Loan Asset-Backed Notes, Series [o] (the "Notes"), issued under an Indenture
dated as of [o] (the "Indenture"), among the Issuer, [o] as indenture trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture) and [o] as securities administrator (the "Securities
Administrator", which term includes any successor Securities Administrator under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of
the Issuer, the Indenture Trustee, the Securities Administrator and the Holders
of the Notes and the terms upon which the Notes are to be authenticated and
delivered. All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Payments of principal and interest on this Note will be made on each
Payment Date to the Noteholder of record as of the related Record Date. The
"Note Balance" of a Note as of any date of determination is equal to the Initial
Note Balance thereof, reduced by the aggregate of all amounts previously paid
with respect to such Note on account of principal and the aggregate amount of
cumulative Realized Losses allocated to such Note on all prior Payment Dates.
The principal of, and interest on, this Note are due and payable as
described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Note shall
be equal to this Note's PRO RATA share of the aggregate payments on all Class N
Notes as described above, and shall be applied as between interest and principal
as provided in the Indenture.
All principal and interest accrued on the Notes, if not previously paid,
will become finally due and payable at the Final Stated Maturity Date.
The Notes are subject to redemption in whole, but not in part, by the
Seller on any Payment Date on or after the Optional Redemption Date.
The Issuer shall not be liable upon the indebtedness evidenced by the Notes
except to the extent of amounts available from the Trust which constitutes
security for the payment of the Notes. The assets included in the Trust will be
the sole source of payments on the Class ____ Notes, and each Holder hereof, by
its acceptance of this Note, agrees that (i) such Note will be limited in right
of payment to amounts available from the Trust as provided in the Indenture and
(ii) such Holder shall have no recourse to the Issuer, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Seller, the Servicer, the
Master Servicer or any of their respective affiliates, or to the assets of any
of the foregoing entities, except the assets of the Issuer pledged to secure the
Class N Notes pursuant to the Indenture and the rights conveyed to the Issuer
under the Indenture.
No transfer of this Note or any interest herein shall be made except in
accordance with Section 4.16 of the Indenture.
Any payment of principal or interest payable on this Note which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Note is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Note Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Note, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Note delivered to the Securities
Administrator at least five Business Days prior to the Record Date, any payment
of principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Holder. All scheduled reductions in the Note Balance of a
Note (or one or more predecessor Notes) effected by payments of principal made
on any Payment Date shall be binding upon all Holders of this Note and of any
note issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof, whether or not such payment is noted on such Note. The final
payment of this Note shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the office or agency of the Issuer
maintained by it for such purpose pursuant to Section 3.02 of the Indenture.
Subject to the foregoing provisions, each Note delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Note shall carry the right to unpaid principal and interest that were
carried by such other Note.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Notes, the Notes may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Note Balance of the Notes, the amount payable to the Holder of this Note will be
equal to the sum of the unpaid Note Balance of the Notes, together with accrued
and unpaid interest thereon as described in the Indenture. The Indenture
provides that, notwithstanding the acceleration of the maturity of the Notes,
under certain circumstances specified therein, all amounts collected as proceeds
of the Trust securing the Notes or otherwise shall continue to be applied to
payments of principal of and interest on the Notes as if they had not been
declared due and payable.
The failure to pay any Class Interest Carryover Shortfall at any time when
funds are not available to make such payment as provided in the Indenture shall
not constitute an Event of Default under the Indenture.
The Holder of this Note or Beneficial Owner of any interest herein is
deemed to represent that either (1) it is not acquiring this Note with Plan
Assets or (2) (A) the acquisition, holding and transfer of this Note will not
give rise to a nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and (B) this Note is rated investment grade or better
and such person believes that this Note is properly treated as indebtedness
without substantial equity features for purposes of the DOL Regulations, and
agrees to so treat this Note. Alternatively, regardless of the rating of this
Note, such person may provide the Indenture Trustee, the Securities
Administrator and the Owner Trustee with an Opinion of Counsel, which Opinion of
Counsel will not be at the expense of the Issuer, the Seller, any Underwriter,
the Owner Trustee, the Indenture Trustee, the Securities Administrator, the
Servicer, the Master Servicer or any successor servicer which opines that the
acquisition, holding and transfer of this Note or interest herein is permissible
under applicable law, will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Issuer, the Seller, any Underwriter, the Owner Trustee, the Indenture Trustee,
the Securities Administrator, the Servicer, the Master Servicer or any successor
servicer to any obligation in addition to those undertaken in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Note Register of the
Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Note at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Securities Administrator, one or more new
Notes of any authorized denominations and of a like aggregate initial Note
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee, the Securities Administrator and any agent of the
Issuer, the Indenture Trustee or the Securities Administrator may treat the
Person in whose name this Note is registered as the owner of such Note (i) on
the applicable Record Date for the purpose of making payments and interest of
such Note and (ii) on any other date for all other purposes whatsoever, as the
owner hereof, whether or not this Note be overdue, and neither the Issuer, the
Indenture Trustee, the Securities Administrator nor any such agent of any of
them shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Holders of a majority of all Notes at the time
outstanding. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the aggregate Note Balance of the
Notes on behalf of the Holders of all the Notes, to waive any past Default under
the Indenture and its consequences. Any such waiver by the Holder, at the time
of the giving thereof, of this Note (or any one or more predecessor Notes) shall
bind the Holder of every Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon such Note. The Indenture also permits the Issuer, the
Indenture Trustee and the Securities Administrator to amend or waive certain
terms and conditions set forth in the Indenture without the consent of the
Holders of the Notes issued thereunder.
Initially, this Note will be registered in the name of Cede & Co. as
nominee of DTC, acting in its capacity as the Depository for this Note. This
Note will be delivered by the clearing agency in denominations as provided in
the Indenture and subject to certain limitations therein set forth. This Note is
exchangeable for a like aggregate initial Note Balance of Notes of different
authorized denominations, as requested by the Holder surrendering same.
Unless the Certificate of Authentication hereon has been executed by the
Securities Administrator by manual signature, this Note shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
AS PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS
NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by [o], not in its individual capacity but solely as Owner Trustee.
Dated: [o]
RENAISSANCE HOME EQUITY LOAN TRUST
[o]
BY: [o], not in its individual capacity
but solely in its capacity as Owner
Trustee
By:____________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
[o]
as Securities Administrator
By:______________________________________
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- __________ Custodian
_______________________________________
(Cust) (Minor)
under Uniform Gifts to Minor Act
_______________________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
(Please print or typewrite name and address, including zip code, of assignee)
--------------------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:
---------------------------------- ----------------------------------
Signature Guaranteed by
--------------------------------------------------------
NOTICE: The signature(s) to this assignment must correspond with the name
as it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
EXHIBIT C-1
FORM OF INITIAL CERTIFICATION
[o]
Renaissance Home Equity Loan Trust [o]
c/o [o]
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Renaissance Mortgage Acceptance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Indenture, dated as of [o] among Renaissance Home Equity Loan
Trust [o], as Issuer, [o] as Indenture Trustee and [o] as
Securities Administrator and HOME EQUITY LOAN ASSET-BACKED NOTES,
SERIES [o]
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.03 of the
above-referenced Indenture, the undersigned, as Custodian, pursuant to the
Custodial Agreement, dated as of [o], by and among [o] as Custodian, [o] as
Indenture Trustee, the Seller and the Depositor hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified on the attachment
hereto), it has reviewed the documents delivered to it pursuant to Section 2.03
of the Indenture and has determined that (i) all documents required to be
delivered to it pursuant paragraphs (i) - (v) and (vii) of Section 2.1(b) of the
Mortgage Loan Sale and Contribution Agreement are in its possession, (ii) such
documents have been reviewed by it and appear regular on their face and have not
been mutilated, damaged, torn or otherwise physically altered and relate to such
Mortgage Loans, (iii) based on its examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule as to the
information set forth in clauses (ii) and (iii) of the definition "Mortgage Loan
Schedule" set forth in Annex A to the Indenture accurately reflects the
information set forth in the Indenture Trustee's Mortgage File. The Custodian
has made no independent examination of such documents beyond the review
specifically required in the above-referenced Indenture. The Custodian makes no
representations as to: (i) the validity, legality, enforceability or genuineness
of any such documents contained in each or any of the Mortgage Loans identified
on the Mortgage Loan Schedule or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
[o]
as Custodian
By:________________________
Name:
Title:
EXHIBIT C-2
FORM OF FINAL CERTIFICATION
[DATE]
Renaissance Home Equity Loan Trust [o]
c/o [o]
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Renaissance Mortgage Acceptance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Indenture, dated as of [o] among Renaissance Home Equity Loan
Trust [o], as Issuer, [o] as Indenture Trustee and [o] as
Securities Administrator and HOME EQUITY LOAN ASSET-BACKED NOTES,
SERIES [o]
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.03 of the above-captioned Indenture, the
undersigned, as Custodian, pursuant to the Custodial Agreement, dated as of [o],
by and among [o] as Custodian, [o] as Indenture Trustee, the Seller and the
Depositor hereby certifies that, except as noted on the attachment hereto, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on the attachment hereto) the Custodian has reviewed
the documents delivered to it pursuant to Sections 2.1(b) (other than items
listed in Section 2.1(b)(vi)) of the Mortgage Loan Sale and Contribution
Agreement and has determined that (i) all such documents are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged, torn or otherwise physically altered and relate to such Mortgage Loan,
(iii) based on its examination, and only as to the foregoing documents, the
information set forth in clauses (ii) and (iii) of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct.
The Custodian has made no independent examination of such documents
beyond the review specifically required in the above-referenced Indenture. The
Custodian makes no representations as to: (i) the validity, legality,
enforceability or genuineness of any such documents contained in each or any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
[o]
as Custodian
By:_____________________________
Name:
Title:
EXHIBIT D-1
CLASS A-1A INTEREST RATE CAP AGREEMENT
EXHIBIT D-2
CLASS N INTEREST RATE CAP AGREEMENT
EXHIBIT E
FORM OF CUSTODIAL AGREEMENT
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF THE CLASS N NOTES
[Date]
[o]
Re: Renaissance Home Equity Loan Trust [o] HOME EQUITY LOAN
ASSET-BACKED NOTES, SERIES [o] (THE "NOTES")
-------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by _____________________________ (the
"Transferor") to _________________________ (the "Transferee") of the Class N
Notes having an initial aggregate Note Balance as of [o] (the "Closing Date") of
$______________ (the "Transferred Notes"). The Class N Notes, including the
Transferred Notes, were issued pursuant to the Indenture, dated as of [o] (the
"Indenture"), among Renaissance Home Equity Loan Trust [o] (the "Issuer"), [o]
(the "Indenture Trustee") and [o] (the "Securities Administrator"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Indenture. The Transferor hereby certifies,
represents and warrants to you, as Note Registrar, and for the benefit of the
Issuer, the Indenture Trustee, the Securities Administrator and the Transferee,
that:
1. The Transferor is the lawful owner of the Transferred Notes with
the full right to transfer such Notes free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Note, any
interest in any Note or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a transfer, pledge or
other disposition of any Note, any interest in any Note or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Note, any interest in any Note or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of any Note
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Note a violation of Section 5 of the
Securities Act or any state securities laws, or would require registration
or qualification of any Note pursuant to the Securities Act or any state
securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule l44A ("Rule l44A")
under the Securities Act (a "Qualified Institutional Buyer") purchasing for
its own account or for the account of a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter
have relied upon the following method(s) of establishing the Transferee's
ownership and discretionary investments of securities (check one or more):
____ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Note in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or
____ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state, or
local governmental agency or self-regulatory organization, or
with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16 months
preceding the date of sale of the Transferred Note in the case of
a U.S. purchaser and within 18 months preceding such date of sale
for a foreign purchaser, or
____ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Note in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser, or
____ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of
the Transferee, specifying the amount of securities owned and
invested on a discretionary basis by the Transferee as of a
specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of securities owned
by the "family of investment companies" as of a specific date on
or since the close of the Transferee's most recent fiscal year.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
1. the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer; securities of issuers
that are part of the Transferee's "family of investment companies", if
the Transferee is a registered investment company; bank deposit notes
and certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase agreement;
and currency, interest rate and commodity swaps;
2. the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities may be valued at market;
3. securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with United States generally accepted accounting principles
may be included if the investments of such subsidiaries are managed
under the direction of the entity, except that, unless the entity is a
reporting company under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, securities owned by such subsidiaries may not
be included if the entity itself is a majority-owned subsidiary that
would be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor
is relying on the exemption from the provisions of Section 5 of the
Securities Act provided by Rule 144A.
The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Transferred Notes and payments thereon, (b) the nature and performance of the
Underlying Certificates, the Mortgage Loans and the Mortgage Participations, (c)
the Indenture and the Collateral, and (d) any credit enhancement mechanism
associated with the Transferred Notes, that the Transferee has requested.
Very truly yours,
[TRANSFEROR]
By:______________________
Name:
Title:
EXHIBIT F-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF THE CLASS N NOTES
[Date]
[o]
Re: Renaissance Home Equity Loan Trust [o] HOME EQUITY LOAN
ASSET-BACKED NOTES, SERIES [o] (THE "NOTES")
--------------------------------------------
Ladies and Gentlemen:
__________________ (the "Transferee") intends to purchase from
_________________ (the "Transferor") the Notes having an initial aggregate Note
Balance as of [o] (the "Closing Date") of $_____________ (the "Transferred
Notes"). The Notes, including the Transferred Notes, were issued pursuant to the
Indenture, dated as of [o] (the "Indenture"), between Renaissance Home Equity
Loan Trust [o] (the "Issuer"), [o] (the "Indenture Trustee") and [o] (the
"Securities Administrator"). All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Indenture. The Transferee
hereby certifies, represents and warrants to you, as Note Registrar, and for the
benefit of the Issuer, the Indenture Trustee, the Securities Administrator and
the Transferor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule l44A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
of the Transferred Notes is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Notes for its own account or for
the account of a Qualified Institutional Buyer, and understands that such
Transferred Notes may be resold, pledged or transferred only (i) to a
person reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Transferred Notes and payments thereon, (b) the nature and
performance of the Underlying Certificates and the Mortgage Loans, (c) the
Indenture, and (d) any credit enhancement mechanism associated with the
Transferred Notes, that it has requested.
3. The Transferee represents that:
____ a. it is neither: (1) an employee benefit plan or other
retirement arrangement, including individual retirement accounts and
annuities, ▇▇▇▇▇ plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested,
including, without limitation, insurance company general accounts,
that is subject to ERISA or the Code (each, a "Plan"), nor (2) any
Person who is directly or indirectly purchasing such Note or interest
therein on behalf of, as named fiduciary of, as trustee of, or with
"plan assets" (as defined under the DOL Regulation at 29 C.F.R.
Section 2510.3-101) of a Plan; or
____ b. the acquisition, holding and transfer of the Transferred Note
will not give rise to a nonexempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code and (2) the Transferred Note
is rated investment grade or better and the Transferee believes that
the Transferred Note is properly treated as indebtedness without
substantial equity features for purposes of the DOL Regulations, and
agrees to so treat the Transferred Note; or
____ c. the Transferee has provided the Indenture Trustee, the
Securities Administrator and the Owner Trustee with an Opinion of
Counsel, which opines that the acquisition, holding and transfer of
the Transferred Note or interest therein is permissible under
applicable law, will not constitute or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Issuer, the Seller, any Underwriter, the Owner
Trustee, the Indenture Trustee, the Securities Administrator, the
Servicer, the Master Servicer or any successor servicer to any
obligation in addition to those undertaken in the Indenture.
Very truly yours,
[TRANSFEREE]
By:______________________
Name:
Title:
ANNEX 1 TO EXHIBIT C-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") an [o] as Note Registrar, with respect to the Notes being
transferred (the "Transferred Notes") as described in the Transferee Certificate
to which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Notes (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded securities referred
to below) as of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies
the criteria in the category marked below.
____ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ BANK. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, A COPY OF WHICH IS ATTACHED HERETO,
as of a date not more than 16 months preceding the date of sale
of the Note in the case of a U.S. bank, and not more than 18
months preceding such date of sale for a foreign bank or
equivalent institution.
____ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, A COPY OF WHICH IS ATTACHED HERETO,
as of a date not more than 16 months preceding the date of sale
of the Note in the case of a U.S. savings and loan association,
and not more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent institution.
____ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
____ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
____ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
____ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
____ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with United States generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Transferee's direction. However, such securities were not included if the
Transferee is a majority-owned, consolidated subsidiary of another enterprise
and the Transferee is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule l44A and
understands that the Transferor and other parties related to the Transferred
Notes are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred Notes
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred Notes
will constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Very truly yours,
[TRANSFEREE]
By:______________________
Name:
Title:
ANNEX 2 TO EXHIBIT C-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [o] as Note Registrar, with respect to the Notes being
transferred (the "Transferred Notes") as described in the Transferee Certificate
to which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $_____________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or I investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred Notes
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule l44A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Notes will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
By: _________________________
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
_______________________
Date:
EXHIBIT G-1
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO REGULATION S GLOBAL SECURITY
(Transfers pursuant to ss. 4.16(e)(ii)
OF THE INDENTURE)
[Date]
[o]
Re: Renaissance Home Equity Loan Trust [o] HOME EQUITY LOAN
ASSET-BACKED NOTES, SERIES [o] (THE "NOTES")
--------------------------------------------
Reference is hereby made to the Indenture, dated as of [o] (the
"Indenture"), between Renaissance Home Equity Loan Trust [o] (the "Issuer"), [o]
(the "Indenture Trustee") and [o] (the "Securities Administrator"). Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
This letter relates to U.S. $____________________________ aggregate
principal amount of Securities which are held in the form of a Restricted Global
Security with the Depository in the name of [name of transferor]
___________________________________ (the "Transferor") to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a Regulation
S Global Security.
In connection with such request, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Indenture and the private placement memorandum
dated [o] relating to the Class N Notes and in accordance with Rule 904 of
Regulation S, and that:
(a) the offer of the Class N Notes was not made to a person in the
United States;
(b) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States;
(c) no directed selling efforts have been made in contravention of the
requirements of Rule 903 or 904 of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act of 1933, as
amended (the "Securities Act"); and
(e) the transferee is not a U.S. Person.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
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[Name of Transferor]
By:
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Name:
Title:
Date:
EXHIBIT G-2
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL SECURITY
TO RESTRICTED GLOBAL SECURITY
(Transfers pursuant to ss. 4.16(e)(iii)
OF THE INDENTURE)
[Date]
[o]
Re: Renaissance Home Equity Loan Trust [o] HOME EQUITY LOAN
ASSET-BACKED NOTES, SERIES [o] (THE "NOTES")
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Reference is hereby made to the Indenture, dated as of [o] (the
"Indenture"), between Renaissance Home Equity Loan Trust [o] (the "Issuer"), [o]
(the "Indenture Trustee") and [o] (the "Securities Administrator"). Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
This letter relates to U.S. $____________________________ aggregate
principal amount of Class N Notes which are held in the form of a Regulations S
Global Security in the name of [name of transferor] ___________________________
(the "Transferor") to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such Securities are being transferred in
accordance with (i) the transfer restrictions set forth in the Indenture and the
private placement memorandum dated [o] relating to the Class N Notes and (ii)
Rule 144A under the United States Securities Act of 1933, as amended, to a
transferee that the Transferor reasonably believes is purchasing the Class N
Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, the transferee or any such account is a
qualified institutional buyer within the meaning of Rule 144A, in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction.
-----------------------------------
[Name of Transferor]
By:
--------------------------------
Name:
Title:
Date: