RENAISSANCE HOME EQUITY LOAN TRUST 2006-3 Issuer HSBC BANK USA, NATIONAL ASSOCIATION Indenture Trustee and WELLS FARGO BANK, N.A. Securities Administrator INDENTURE Dated as of September 28, 2006 HOME EQUITY LOAN ASSET- BACKED NOTES, SERIES 2006-3
Issuer
HSBC
BANK
USA, NATIONAL ASSOCIATION
Indenture
Trustee
and
▇▇▇▇▇
FARGO BANK, N.A.
Securities
Administrator
_____________________________
Dated
as
of September 28, 2006
_____________________________
HOME
EQUITY LOAN ASSET-BACKED NOTES, SERIES 2006-3
________________
TABLE
OF CONTENTS
|
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 Swap Agreement 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.
|
[Reserved]
|
|
Section
3.32.
|
[Reserved]
|
|
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 ▇▇▇▇▇▇
|
|
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-1
|
Form
of Offered Notes
|
|
Exhibit
A-2
|
Form
of Class N Notes
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
Exhibit
C-1
|
Form
of Initial Certification
|
|
Exhibit
C-2
|
Form
of Final Certification
|
|
Exhibit
D
|
Interest
Rate Swap 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 September 28, 2006, is entered into among Renaissance
Home Equity Loan Trust 2006-3, a Delaware statutory trust, as Issuer (the
“Issuer”), HSBC Bank USA, National Association, a national banking association,
as Indenture Trustee (the “Indenture Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., a
national banking association, 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 2006-3 (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
Interest Rate Swap 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 ▇▇▇▇▇, 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-1
and
Exhibit A-2 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-1 and Exhibit A-2 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
$800,253,000. The Notes shall have the following Initial Note
Balances:
|
Class
AV-1
|
$
|
56,800,000
|
||
|
Class
AV-2
|
$
|
23,500,000
|
||
|
Class
AV-3
|
$
|
29,700,000
|
||
|
Class
AF-1
|
$
|
194,300,000
|
||
|
Class
AF-2
|
$
|
116,400,000
|
||
|
Class
AF-3
|
$
|
82,200,000
|
||
|
Class
AF-4
|
$
|
68,400,000
|
||
|
Class
AF-5
|
$
|
46,694,000
|
||
|
Class
AF-6
|
$
|
56,444,000
|
||
|
Class
M-1
|
$
|
25,988,000
|
||
|
Class
M-2
|
$
|
24,338,000
|
||
|
Class
M-3
|
$
|
14,438,000
|
||
|
Class
M-4
|
$
|
14,025,000
|
||
|
Class
M-5
|
$
|
11,963,000
|
||
|
Class
M-6
|
$
|
10,313,000
|
||
|
Class
M-7
|
$
|
9,075,000
|
||
|
Class
M-8
|
$
|
8,250,000
|
||
|
Class
M-9
|
$
|
7,425,000
|
||
|
Class
N-1
|
$
|
29,700,000
|
||
|
Class
N-2
|
$
|
4,700,000
|
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.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Indenture Trustee with respect to the custody, acceptance,
inspection and release of the Mortgage Files, including but not limited to
certain insurance policies and documents contemplated by this Agreement and
the
Servicing Agreement, and preparation and delivery of any applicable
certifications shall be performed by the Custodian pursuant to the terms and
conditions of the Custodial Agreement.
Section
2.04. Acceptance
of the Interest Rate Swap 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 Interest Rate Swap Agreement on the Closing Date
and thereafter on behalf of the Holders of the Class N Notes. The Issuer and
the
Holders of 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 Interest Rate Swap 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 Interest Rate Swap 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 N Notes. Every provision of this Indenture affording
protection to the Owner Trustee shall apply to the Owner Trustee’s execution of
the Interest Rate Swap 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 “HSBC Bank USA, National Association, as Indenture
Trustee, in trust for the registered holders of Renaissance Home Equity Loan
Trust 2006-3 Home Equity Loan Asset-Backed Notes, Series 2006-3.” 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 (i) to the Swap
Provider, any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider and (ii) 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 and apply such amount in the following order of
priority, in each case, to the extent of the funds remaining:
(i) With
respect to funds in the Payment Account received with respect to the Group
I
Mortgage Loans
| (1) |
Concurrently,
to each Class of Group I Notes, pro
rata
based on amounts due, the related Class Interest Payment for the
applicable Payment Date.
|
| (2) |
For
payment pursuant to Section 3.05(b)(iii) below, any remaining
amounts.
|
(ii) With
respect to funds in the Payment Account received with respect to the Group
II
Mortgage Loans
| (1) |
Concurrently,
to each Class of Group II Notes, pro
rata
based on amounts due, the related Class Interest Payment for the
applicable Payment Date.
|
| (2) |
For
payment pursuant to Section 3.05(b)(iii) below, any remaining
amounts.
|
(iii) With
respect to any remaining funds in the Payment Account after payments made
pursuant to Sections 3.05(b)(i) and 3.05(b)(ii) above
| (1) |
Concurrently,
to the Senior Notes, to the extent not paid pursuant to Sections
3.05(b)(i) and 3.05(b)(ii) above on the applicable Payment Date,
pro
rata
based on amounts due, the related Class Interest Payment for the
applicable Payment Date; then
|
| (2) |
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 and ninth to the Class M-9 Notes, the
related Class Monthly Interest Amount for the applicable Payment
Date;
then
|
| (3) |
To
the Senior Notes, the Senior Principal Payment Amount for the applicable
Payment Date, excluding any Subordination Increase Amount included
in that
amount, concurrently as follows:
|
(a) To
the
Group I Notes, the Group I Principal Payment Amount, sequentially, to the Class
AV-1, Class AV-2 and Class AV-3 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 Group I Notes will be made
on a
pro
rata
basis
based on the Class Note Balance of each such Class; and
(b) To
the
Group II Notes, the Group II Principal Payment Amount, sequentially, first
to
the Class AF-6 Notes, an amount equal to the Class AF-6 Lockout Payment Amount,
and second, sequentially, to the Class AF-1, Class AF-2, Class AF-3, Class
AF-4,
Class AF-5 and Class AF-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 Group II Notes will be made on a
pro
rata
basis
based on the Class Note Balance of each such Class; then
| (4) |
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
|
| (5) |
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
|
| (6) |
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
|
| (7) |
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
|
| (8) |
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
|
| (9) |
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
|
| (10) |
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
|
| (11) |
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
|
| (12) |
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
|
| (13) |
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 (4) through (12) of this Section 3.05(b)(iii);
then
|
| (14) |
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 and ninth to the Class M-9 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
|
| (15) |
To
the Group I Notes in the order and priority described in
Section 3.05(c), any Group I Basis Risk Shortfall Amount,
then
|
| (16) |
to
the Class N-1 Notes, the Class N-1 Interest Payment Amount for the
related
Interest Period; then
|
| (17) |
to
the Class N-2 Notes, the Class N-2 Interest Payment Amount for the
related
Interest Period; then
|
| (18) |
to
the Class N-1 Notes, the Class N-1 Principal Payment Amount, if any,
until
such Note Balance is reduced to zero;
then
|
| (19) |
to
the Class N-2 Notes, the Class N-2 Principal Payment Amount, if any,
until
such Note Balance is reduced to zero;
then
|
| (20) |
to
the Swap Provider, any Swap Termination Payments resulting from a
Swap
Provider Trigger Event; and then
|
| (21) |
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, the Class Interest Payment for each Class of Senior Notes in
a
Note Group will be paid on an equal priority within such Note
Group.
On
each
Payment Date, all amounts representing Prepayment Charges in respect of the
Mortgage Loans received during the related Prepayment Period will 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
to
the Group I Notes, pro
rata
based on
amounts due, the related Basis Risk Shortfall Amount from payments made pursuant
to Section 3.05(b)(iii)(15) 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-1 and Exhibit A-2 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 2007, 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. |
Reserved.
|
| Section 3.32. |
Reserved.
|
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 ▇▇▇▇▇▇▇▇▇▇ 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-2 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-2 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. §
2510.3-101, and agrees to so treat the Notes. Alternatively, regardless of
the
rating of the Notes, such person may provide the Securities Administrator with
an Opinion of Counsel, which Opinion of Counsel will not be at the expense
of
the Trust, the Issuer, the Seller, the Depositor, the Indenture Trustee, the
Securities Administrator, or the Master 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 Trust, the Issuer, the Seller, the Depositor, the Indenture Trustee,
the Securities Administrator or the Master 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 Section 4975 of 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) (1)
The
acquisition, holding and transfer of the 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) the Class N Note is rated investment grade or better and the
Transferee believes that the Class N Note is properly treated as indebtedness
without substantial equity features for purposes of the DOL Regulations, and
agrees to so treat the Class N Note; or
(iii) Such
Person has provided 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 Depositor, 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 purchase, 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, the Depositor, 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.
(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
(▇▇▇) ▇▇▇▇▇▇
(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 Section 4975 of 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 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 Depositor, 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 Depositor, 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
conclusively 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 conclusively
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, 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.
(k) The
Indenture Trustee shall, at the written direction of the Depositor, enforce
all
of its rights and exercise any remedies under the Interest Rate Swap Agreement.
In the event the Interest Rate Swap Agreement is terminated as a result of
the
designation by either party thereto of an Early Termination Date (as defined
therein), the Indenture Trustee shall, at the direction of the Depositor,
appoint a replacement counterparty to enter into a replacement swap agreement.
The Indenture Trustee shall have no responsibility with regard to the selection
of a replacement swap provider or the negotiation of a replacement swap
agreement. Any Swap Termination Payment received by the Securities Administrator
on behalf of the Indenture Trustee shall be part of Available Funds and shall
be
used to make any upfront payment required under a replacement swap agreement
and
any upfront payment received from the counterparty to a replacement swap
agreement shall be used to pay any Swap Termination Payment owed to the Swap
Provider. If the Indenture Trustee is unable to appoint a successor swap
provider within 30 days of the Early Termination Date, then the Securities
Administrator (acting on behalf of the Issuer) will deposit any Swap Termination
Payment received from the original Swap Provider into a separate, non-interest
bearing reserve account and will, on each subsequent payment date, withdraw
from
the amount then remaining on deposit in such reserve account an amount equal
to
the Net Swap Payment, if any, that would have been paid to the Issuer by the
original Swap Provider calculated in accordance with the terms of the original
Interest Rate Swap Agreement, and distribute such amount in accordance with
the
terms of this Indenture.
| 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.
(f) Any
permissive right of the Indenture Trustee enumerated in this Indenture shall
not
be construed as a duty.
(g) In
no
event shall the Indenture Trustee be liable, directly or indirectly, for any
special, indirect or consequential damages, even if the Indenture Trustee has
been advised of the possibility of such damages.
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.
Notwithstanding
anything to the contrary contained herein, the Issuer shall not settle any
claim
involving the Indenture Trustee without the Indenture Trustee’s prior written
consent unless such settlement involves a complete and absolute release of
the
Indenture Trustee from any and all liability in connection with such
claim.
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 and indemnification 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 ▇▇▇▇▇▇.
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 § 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 § 310(b), including the optional provision permitted by the second sentence
of TIA § 310(b)(9); provided,
however,
that
there shall be excluded from the operation of TIA § 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 § 310(b)(1) are
met.
Section
6.12. Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA § 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-1 and Exhibit A-2 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 § 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 § 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;
(iii) The
Securities Administrator shall supply (and the Securities Administrator shall
transmit by mail to all Noteholders described in TIA § 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; and
(iv) For
each
Distribution Date, through and including the Distribution Date in December
2006,
the Securities Administrator shall calculate the Significance Percentage of
the
Interest Rate Swap Agreement. If on any such Distribution Date, the Significance
Percentage is equal to or greater than 9%, the Securities Administrator shall
promptly notify the Depositor and the Depositor, on behalf of the Securities
Administrator, shall obtain the financial information required to be delivered
by the Swap Provider pursuant to the terms of the Interest Rate Swap Agreement.
If, on any succeeding Distribution Date through and including the Distribution
Date in December 2006, the Significance Percentage is equal to or greater than
10%, the Securities Administrator shall promptly notify the Depositor and the
Depositor shall, within 5 Business Days of such Distribution Date, deliver
to
the Securities Administrator the financial information provided to it by the
Swap Provider for inclusion in the Form 10-D relating to such Distribution
Date.
With
respect to any Payment Date, for purposes of determining the numerator of the
fraction that constitutes the Significance Percentage, the interest rate used
to
project future amounts payable under the Interest Rate Swap Agreement shall
be
equal to the highest rate reflected on the Implied Forwards Curve available
at
Bloomberg Financial Markets, L.P. for the remaining term of the Interest Rate
Swap Agreement plus the percentage equivalent of a fraction, the numerator
of
which is 3.00% and the denominator of which is the remaining Payment Dates
on
which the Securities Administrator is entitled to receive payments under the
Interest Rate Swap Agreement). The discount rate used to determine the net
present value of the estimated future amounts payable shall be equal to the
lowest rate reflected on the Implied Forwards Curve. The Securities
Administrator shall obtain the Implied Forwards Curve from Bloomberg within
15
Business Days of the respective Payment Date. To determine the Implied Forwards
Curve for such Payment Date, the Securities Administrator shall take the
following steps on the Bloomberg terminal: (1) the following keystrokes shall
be
entered: fwcv <enter>, 32 (or any such other number as represents the
United States) <enter>, 3 <enter>; (2) the Forwards shall be set to
“1-Mo”; (3) the Intervals shall be set to “1-Mo”; and (4) the Points shall be
set to equal the remaining term of the Interest Rate Swap Agreement in months
and the Securities Administrator shall click <enter>. For purposes of
estimating future amounts payable under the Interest Rate Swap Agreement, the
accrual period for both the Fixed Amounts and the Floating Amounts (as defined
in the Confirmation) shall be assumed to be a 30-day period in a 360-day
year.
(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 § 313(a), within 60 days after each January 30th
beginning with March 31, 2007, the Securities Administrator (on behalf of the
Indenture Trustee) shall mail to each Noteholder as required by TIA § 313(c) a
brief report dated as of such date that complies with TIA § 313(a). The
Securities Administrator (on behalf of the Indenture Trustee) also shall comply
with TIA § 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 in each Loan
Group 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) whether
a
Cumulative Loss Event or a Delinquency Event has occurred and is continuing
and
the calculation thereof;
(xi) the
aggregate amount of Principal Prepayments received during the related Prepayment
Period;
(xii) the
amount of all Curtailments that were received during the Due
Period;
(xiii) the
principal portion of all Monthly Payments received during the Due
Period;
(xiv) the
interest portion of all Monthly Payments received on the Mortgage Loans during
the Due Period;
(xv) the
amount of the Monthly Advances and the Compensating Interest payment to be
made
on the Determination Date;
(xvi) the
amount to be distributed to the Certificates for the Payment Date;
(xvii) 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;
(xviii) 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);
(xix) the
number of Mortgage Loans outstanding at the beginning and at the end of the
related Due Period;
(xx) 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;
(xxi) 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);
(xxii) the
amounts of Applied Realized Loss Amounts for the applicable Due Period and
the
cumulative amount of Applied Realized Loss Amounts to date;
(xxiii) 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)
(xxiv) the
amount of Basis Risk Shortfall Amount paid to each Class of Group I
Notes;
(xxv) the
amount of any Net Swap Payments or Swap Termination Payments;
(xxvi) whether
a
Stepdown Date or Trigger Event is in effect on such Payment Date;
and
(xxvii) the
applicable Record Dates, Interest Accrual Periods and determination dates for
calculating payments for such Payment Date.
(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 and any Swap Termination Payment to the Swap
Provider then remaining unpaid which is due to the exercise of such option(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.
(c) Notwithstanding
any of the other provisions of this Section 9.01, none of the Issuer, the
Indenture Trustee or the Securities Administrator shall knowingly enter into
any
amendment to this Agreement that adversely affects in any respect the rights
and
interests hereunder of the Swap Provider without the prior written consent
of
the Swap Provider, such consent not to be unreasonably withheld.
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 2006-3, in care of Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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 Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of Renaissance Home Equity Loan Trust
2006-3, 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 Wilmington Trust Company 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 Wilmington Trust Company, 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 Wilmington Trust Company 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 2006-3, as Issuer
By:
Wilmington Trust Company, not in its individual capacity but solely
as
Owner Trustee
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
HSBC
BANK USA, NATIONAL ASSOCIATION, as Indenture Trustee
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
▇▇▇▇▇
FARGO BANK, N.A., as Securities Administrator
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
For
purposes of Section 6.07:
▇▇▇▇▇
FARGO BANK, N.A., as Master Servicer
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
STATE
OF DELAWARE
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW CASTLE
|
)
|
On
this
___ day of September, 2006, 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 September, 2006, 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 September, 2006, 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]
|
)
|
||
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
this
___ day of September, 2006, 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-1 - 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].
HOME
EQUITY LOAN ASSET-BACKED NOTES, SERIES 2006-3
CLASS
____
|
AGGREGATE
NOTE BALANCE:
$_____________________
|
NOTE
RATE:
|
|
INITIAL
NOTE BALANCE OF THIS BOND: $_____________________
|
BOND
NO. 1
|
|
PERCENTAGE
INTEREST: 100%
|
CUSIP
NO. [
]
|
Renaissance
Home Equity Loan Trust 2006-3 (the “Issuer”), a Delaware statutory trust, for
value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ($_________________) 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 October 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 2006-3 (the “Notes”), issued under an Indenture dated as of
September 28, 2006 (the “Indenture”), among the Issuer, HSBC Bank USA, National
Association, as indenture trustee (the “Indenture Trustee”, which term includes
any successor Indenture Trustee under the Indenture) and ▇▇▇▇▇ Fargo Bank,
N.A.,
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 Securities Administrator with an Opinion of Counsel, which Opinion
of Counsel will not be at the expense of the Trust, the Issuer, the Seller,
the
Depositor, the Indenture Trustee, the Securities Administrator, or 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 Trust, the Issuer,
the Seller, the Depositor, the Indenture Trustee, the Securities Administrator
or the Master 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
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee.
Dated:
September ___, 2006
|
BY:
WILMINGTON TRUST COMPANY, 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.
|
▇▇▇▇▇
FARGO BANK, N.A.,
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-2 - 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.
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
SECTION 4975 OF 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.
HOME
EQUITY LOAN ASSET-BACKED NOTES, SERIES 2006-3
CLASS
____
|
AGGREGATE
NOTE BALANCE:
$_____________________
|
NOTE
RATE:
|
|
INITIAL
NOTE BALANCE OF THIS BOND: $_____________________
|
BOND
NO. 1
|
|
PERCENTAGE
INTEREST: 100%
|
CUSIP
NO. [ ]
|
Renaissance
Home Equity Loan Trust 2006-3 (the “Issuer”), a Delaware statutory trust, for
value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ($_________________) 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 October 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 2006-3 (the “Notes”), issued under an Indenture dated as of
September 28, 2006 (the “Indenture”), among the Issuer, HSBC Bank USA, National
Association, as indenture trustee (the “Indenture Trustee”, which term includes
any successor Indenture Trustee under the Indenture) and ▇▇▇▇▇ Fargo Bank,
N.A.,
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 ▇▇▇▇▇▇. 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 shall represent
or shall be 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 Depositor,
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 Depositor, 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
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee.
Dated:
September ___, 2006
|
RENAISSANCE
HOME EQUITY LOAN TRUST 2006-3
BY:
WILMINGTON TRUST COMPANY, 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.
|
▇▇▇▇▇
FARGO BANK, N.A.,
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
Previously
filed with the Securities and Exchange Commission on September 28,
2006.
EXHIBIT
C-1
FORM
OF
INITIAL CERTIFICATION
September
___, 2006
|
Renaissance
Home Equity Loan Trust 2006-3
c/o
Wilmington Trust Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0001
Attention:
Corporate Trust Administration
|
Ocwen
Loan Servicing, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Renaissance
Mortgage Acceptance Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
HSBC
Bank USA, National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
Re:
|
Indenture,
dated as of September 28, 2006 among Renaissance Home Equity Loan
Trust
2006-3, as Issuer, HSBC Bank USA, National Association, as Indenture
Trustee and ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator and Home Equity Loan Asset-Backed Notes, Series
2006-3
|
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 September 28, 2006, by and among ▇▇▇▇▇ Fargo Bank, N.A., as
Custodian, HSBC Bank USA, National Association, 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 collectability, 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.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Custodian
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
C-2
FORM
OF
FINAL CERTIFICATION
[DATE]
|
Renaissance
Home Equity Loan Trust 2006-3
c/o
Wilmington Trust Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0001
Attention:
Corporate Trust Administration
|
Ocwen
Loan Servicing, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Renaissance
Mortgage Acceptance Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
HSBC
Bank USA, National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
Re:
|
Indenture,
dated as of September 28, 2006 among Renaissance Home Equity Loan
Trust
2006-3, as Issuer, HSBC Bank USA, National Association, as Indenture
Trustee and ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator and Home Equity Loan Asset-Backed Notes, Series
2006-3
|
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
September 1, 2006, by and among ▇▇▇▇▇ Fargo Bank, N.A., as Custodian, HSBC
Bank
USA, National Association, 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 collectability,
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 Servicing Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Custodian
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
D
INTEREST
RATE SWAP AGREEMENT
 |
|
|
DATE:
|
28th
September 2006
|
|
TO:
|
Renaissance
Home Equity Loan Trust 2006-3
|
|
c/o
Wilmington Trust Company
|
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
|
|
|
Wilmington,
DE 19890 - 0001
|
|
|
ATTENTION:
|
Corporate
Trust Administration
|
|
With
copy to:
|
▇▇▇▇▇
Fargo Bank, N.A.
|
|
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Columbia,
MD 21045
|
|
|
Attention:
Client Manager - Renaissance 06-3
|
|
|
Tel:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
FROM:
|
Bank
of America, N.A.
|
|
Sears
Tower
|
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
Chicago,
IL 60606
|
|
|
OUR
REFERENCE NO:
|
13986007
|
|
INTERNAL
TRACKING NOS.:
|
13986007
|
The
purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the current Transaction entered into on the Trade Date specified
below (the "Transaction") between Bank of America, N.A. ("Party A") and
Renaissance
Home Equity Loan Trust 2006-3
(“Party
B”). This Agreement, which evidences a complete and binding agreement between
you and us to enter into the Transaction on the terms set forth below,
constitutes a "Confirmation" as referred to in the "Master Agreement" (as
defined below), as well as a “Schedule” as referred to in the Master
Agreement.
1.
This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement
in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) form (the "Master Agreement") but, rather, a Master
Agreement shall be deemed to have been executed by you and us on the date we
entered into the Transaction. Terms capitalized but not defined herein
except
in
the Definitions
shall
have the respective meanings attributed to them in the Indenture, dated as
of
September 1st,
2006,
among Renaissance
Home Equity Loan Trust 2006-3 as
Issuer
(the “Issuer”), HSBC Bank USA, National Association, as Indenture Trustee (the
“Indenture Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator
(the “Securities Administrator”) (the “Indenture”). In the event of any
inconsistency between the provisions of this Agreement and the Definitions
or
the Master Agreement, this Agreement shall prevail for purposes of the
Transaction. Each reference to a “Section” (unless specifically referencing
another agreement) will be construed as a reference to a Section of the Master
Agreement.
2.
The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
Type
of Transaction:
|
Interest
Rate Swap
|
||
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period on
Schedule I attached hereto.
|
||
|
Trade
Date:
|
8th
September 2006
|
||
|
Effective
Date:
|
25th
October 2006
|
||
|
Termination
Date:
|
25th
October 2009, subject to adjustment in accordance with the Modified
Following Business Day Convention
|
||
|
Fixed
Amount:
|
|||
|
Fixed
Rate Payer:
|
Party
B
|
||
|
Fixed
Rate Payer
|
|||
|
Period
End Dates:
|
The
25th
of
each Month, commencing 25th
November 2006 and ending on the Termination Date, subject to adjustment
in
accordance with the Modified Following Business Day
Convention.
|
||
|
Fixed
Rate Payer
|
|||
|
Payment
Dates:
|
Early
Payment shall be applicable. Each Fixed Rate Payer Payment Date
shall be
one Business Day prior to the related Fixed Rate Payer Period End
Date.
|
||
|
Fixed
Rate:
|
5.17750
per cent
|
||
|
Fixed
Rate Day
|
|||
|
Count
Fraction:
|
30/360
|
||
|
Floating
Amounts:
|
|||
|
Floating
Rate Payer:
|
Party
A
|
||
|
Floating
Rate Payer
|
|||
|
Period
End Dates:
|
The
25th
of
each Month, commencing 25th
November 2006 and ending on the Termination Date, subject to adjustment
in
accordance with the Modified Following Business Day
Convention.
|
||
|
Floating
Rate Payer
|
|||
|
Payment
Dates:
|
Early
Payment shall be applicable. Each Floating Rate Payer Payment Date
shall
be one Business Day prior to the related Floating Rate Payer Period
End
Date.
|
||
|
Floating
Rate for
|
|||
|
Initial
Calculation
|
|||
|
Period:
|
to
be determined
|
||
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
||
|
Designated
Maturity:
|
1
Month
|
||
|
Spread:
|
None
|
||
|
Floating
Rate Day
|
|||
|
Count
Fraction:
|
Actual/360
|
||
|
Reset
Dates:
|
The
first day of each Calculation Period
|
||
|
Compounding:
|
Inapplicable
|
||
|
Business
Days:
|
New
York
|
||
|
Calculation
Agent:
|
Party
A
|
||
3.
Provisions
Deemed Incorporated in a Schedule to the Master
Agreement:
1) The
parties agree that subparagraph (ii) of Section 2(c) of the Master Agreement
will apply to any Transaction.
2)
Termination
Provisions.
For
purposes of the Master Agreement:
(a) “Specified
Entity” is not applicable to Party A or Party B for any purpose.
(b) “Breach
of Agreement” provision of Section 5(a)(ii) and will not apply to Party A or
Party B.
(c) “Credit
Support Default” provisions of Section 5(a)(iii) will apply to Party A (if Party
A posts collateral or obtains a guarantee or other contingent agreement pursuant
to paragraph 14 below) will not apply to Party B.
(d) “Misrepresentation”
provisions of Section 5(a)(iv) will not apply to Party A or Party
B.
(e)
"Specified
Transaction" is not applicable to Party A or Party B for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to Party A or Party B.
(f) The
"Cross Default" provisions of Section 5(a)(vi) will not apply to Party A or
to
Party B.
(g) “Bankruptcy”
provision of Section 5(a)(vii)(2) will not apply to Party B.
(h) “Merger
without Assumption” provision of Section 5(a)(viii) will not apply to Party
B.
(i) The
“Credit Event Upon Merger” provisions of Section 5(b)(iv) will not apply to
Party A or Party B.
(j) The
“Automatic Early Termination” provision of Section 6(a) will not apply to Party
A or to Party B.
(k) Payments
on Early Termination. For the purpose of Section 6(e):
(i) Market
Quotation will apply.
(ii) the
Second Method will apply.
(l) “Termination
Currency” means United States Dollars.
(m)
Gross
Up.
The provisions of Section 2(d)(i)(4) and 2(d)(ii) shall not apply to Party
B and
Party B shall not be required to pay any additional amounts referred to
therein.
3)
Tax
Representations.
|
(a)
Payer Representations. For the purpose of Section 3(e), each of Party
A
and Party B will make the following
representations:
|
|
It
is not required by any applicable law, as modified by the practice
of any
relevant governmental revenue authority, of any Relevant Jurisdiction
to
make any deduction or withholding for or on account of any Tax from
any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e))
to be
made by it to the other party under this Agreement. In making this
representation, it may rely on:
|
(i) the
accuracy of any representations made by the other party pursuant to Section
3(f);
(ii) the
satisfaction of the agreement contained in Section 4(a)(iii) and the accuracy
and effectiveness of any document provided by the other party pursuant to
Section 4(a)(iii); and
|
(iii)
the satisfaction of the agreement of the other party contained in
Section
4(d), provided that it shall not be a breach of this representation
where
reliance is placed on clause (ii) and the other party does not deliver
a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
|
|
(b)
Payee Representations. For the purpose of Section 3(f), each of Party
A
and Party B make the following representations.
|
The
following representation will apply to Party A:
|
Party
A is a national banking association formed under the laws of the
United
States of America. Party A is a United States person for U.S. Federal
Income Tax purposes and its U.S. taxpayer identification number is
▇▇-▇▇▇▇▇▇▇.
|
The
following representation will apply to Party B:
|
Party
B is a United States person for U.S. Federal Income Tax
purposes.
|
4)
The
Master Agreement is hereby amended as follows:
The
word
“third” shall be replaced by the word “second” in the third line of Section
5(a)(i).
5)
Documents
to be Delivered.
For the
purpose of Section 4(a):
(1) Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
Party
A and
Party
B
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
(2) Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver this Agreement, any Confirmation , and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under this Agreement, such Confirmation and/or Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
|
Party
A
|
Annual
Report of Bank of America Corporation containing audited, consolidated
financial statements certified by independent certified public accountants
and prepared in accordance with generally accepted accounting principles
in the country in which such party is organized.
|
To
be made available on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/
as
soon as available and in any event within 90 days after the end of
each
fiscal year of Party A.
|
Yes
|
|
Party
A and Party B
|
Legal
opinion from counsel for such party.
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
No
|
|
Party
B
|
A
duly executed copy of the Indenture.
|
Upon
the execution and receipt of such Indenture.
|
No
|
|
Party
B
|
Copy
of each monthly servicer report.
|
Upon
availability
|
No
|
6)
Miscellaneous.
Miscellaneous
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A:
Bank
of
America, N.A.
Sears
Tower
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Chicago,
IL 60606
Attention:
Swap Operations
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
with
a
copy to:
Bank
of
America, N.A.
▇▇▇
▇.
▇▇▇▇▇ ▇▇.
NC1-007-13-01
Charlotte,
North Carolina 28255
Attention:
Global Markets Trading Agreements
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
(For
all
purposes)
Address
for notices or communications to Party B:
Renaissance
Home Equity Loan Trust 2006-3
c/o
Wilmington Trust Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
Wilmington,
DE 19890 - 0001
Attention:
Corporate Trust Administration
With
copy
to:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Columbia,
MD 21045
Attention:
Client Manager - Renaissance 06-3
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
(For
all
purposes)
(b)
Process
Agent. For the purpose of Section 13(c):
Party
A
appoints as its
Process
Agent: Not
Applicable
The
Party
B appoints as its
Process
Agent: Not
Applicable
(c)
Offices.
The provisions of Section 10(a) will apply to this Agreement.
|
(d)
|
Multibranch
Party. For the purpose of
Section 10(c):
|
Party
A
is a Multibranch Party and may act through its Charlotte, North Carolina,
Chicago, Illinois, San Francisco, California, New York, New York, Boston,
Massachusetts, or such other Office as may be agreed to by the parties in
connection with a Transaction.
|
Party
B is not a Multibranch Party.
|
(e)
Credit
Support Document. Not
applicable for Party A or, if Party A posts collateral pursuant to a Credit
Support Annex or obtains a guarantee or other contingent agreement pursuant
to
paragraph 14 below, such Credit Support Annex, guarantee, or other contingent
agreement. The Indenture for Party B.
|
(f)
|
Credit
Support Provider.
|
Party
A:
Not
Applicable or, if Party A obtains a guarantee or other provider of credit
support pursuant to paragraph 14 below, such guarantee or other provider of
credit support
|
Party
B:
|
Not
Applicable
|
(g)
Governing
Law. The parties to this Agreement hereby agree that the law of the State of
New
York shall govern their rights and duties in whole, without regard to the
conflict of law provisions thereof other than New York General Obligations
Law
Sections 5-1401 and 5-1402.
(h)
Severability. If
any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties as
to
the subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(i) Consent
to Recording. Each party hereto consents to the monitoring or recording, at
any
time and from time to time, by the other party of any and all communications
between officers or employees of the parties, and waives any further notice
of
such monitoring or recording.
(j)
Waiver
of
Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
(k) Set-Off.
The provisions for Set-off set forth in Section 6(e) of the Master Agreement
shall not apply for purposes of this Transaction. Notwithstanding any provision
of this Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup or
otherwise withhold or suspend or condition payment or performance of any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements.
(l)
Additional
Definitional Provisions.
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Fitch”
means Fitch Ratings, Inc., or any successor.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor.
|
“S&P”
means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or any successor.
|
(m)
Owner
Trustee Liability Limitations.
It is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by Wilmington Trust Company (“WTC”), not individually or
personally but solely as trustee on behalf of Party B, (b) each of the
representations, undertakings and agreements herein made on the part of Party
B
is made and intended not as personal representations, undertakings and
agreements by WTC but is made and intended for the purpose of binding only
Party
B, (c) nothing herein contained shall be construed as creating any liability
on
WTC, 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, (d) under no circumstances shall WTC be personally liable for the
payment of any indebtedness or expenses of Party B or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by Party B under this Agreement or any other related
documents.
7)
“Affiliate”: Party A and Party B shall be deemed to have no Affiliates for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
8)
Payment Instructions. Party A hereby agrees that, unless notified in writing
by
Party B of other payment instructions, any and all amounts payable by Party
A to
Party B under this Agreement shall be paid to the Indenture Trustee at the
account specified in Section 5.
9)
Section 3 of the Master Agreement is hereby amended by adding at the end thereof
the following subsection (g):
“(g)
Relationship
Between Parties.
|
Each
party represents to the other party on each date when it enters into
a
Transaction that:--
|
(1)
Nonreliance.
(i) It
is not relying on any statement or representation of the other party regarding
the Transaction (whether written or oral), other than the representations
expressly made in this Agreement or the Confirmation in respect of that
Transaction and (ii) it has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the extent it has
deemed necessary, and it has made its own investment, hedging and trading
decisions based upon its own judgment and upon any advice from such advisors
as
it has deemed necessary and not upon any view expressed by the other
party.
(2)
Evaluation
and Understanding.
(i)
It
has the capacity to evaluate (internally or through independent professional
advice) the Transaction and has made its own decision subject to Section 6(n)
of
this Agreement to enter into the Transaction; and
(ii)
It
understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume those risks,
financially and otherwise.
(3)
Purpose.
It is
entering into the Transaction for the purposes of managing its borrowings or
investments, hedging its underlying assets or liabilities or in connection
with
a line of business.
(4)
Status
of Parties.
The
other party is not acting as an agent, fiduciary or advisor for it in respect
of
the Transaction.
(5)
Eligible
Contract Participant.
It
constitutes an “eligible contract participant” as such term is defined in
Section 1(a)12 of the Commodity Exchange Act, as amended.”
10)
Non-Recourse. Notwithstanding any provision herein or in the Master Agreement
to
the contrary, the obligations of Party B hereunder are limited recourse
obligations of Party B, payable solely from Collateral and the proceeds thereof,
in accordance with the terms of the Indenture. In the event that Collateral
and
proceeds thereof should be insufficient to satisfy all claims outstanding and
following the realization of Collateral and the proceeds thereof, any claims
against or obligations of Party B under the Master Agreement or any other
confirmation thereunder still outstanding shall be extinguished and thereafter
not revive.
11) Transfer,
Amendment and Assignment. No transfer, amendment, waiver, supplement, assignment
or other modification of this Transaction shall be permitted by either party
unless each of Fitch, Moody’s and S&P have been provided prior notice of the
same and confirms in writing (including by facsimile transmission) that it
will
not downgrade, withdraw or otherwise modify its then-current ratings of the
Notes.
12) Non-Petition.
Party A shall not institute against, or cause any other person to institute
against, or join any other person in instituting against Party B in any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any federal or state bankruptcy or similar law for
a
period of one year and one day (or, if longer, the applicable preference period)
following payment in full of the Notes. Nothing herein shall prevent Party
A
from participating in any such proceeding(s) once commenced. This provision
will
survive the termination of this Agreement.
13)
Additional Termination Events. Additional Termination Events will apply:
(a)
If a
Rating Agency Downgrade has occurred and Party A has not complied with paragraph
14 below, then an Additional Termination Event shall have occurred with respect
to Party A and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(b)
If,
at any time, the Seller purchases the Mortgage Loans and REO Properties pursuant
to Section 8.07 of the Indenture, then an Additional Termination Event shall
have occurred and Party B shall be the sole Affected Party with respect thereto;
provided, however, that notwithstanding Section 6(b)(iv), both Party A and
Party
B shall have the right to designate an Early Termination Date (such early
Termination Date shall not be earlier than the final distribution date) in
respect of this Additional Termination Event.
(c)
If,
upon the occurrence of a Swap Disclosure Event (as defined in paragraph 15
below) Party A has not, within 10 Business Days after such Swap Disclosure
Event
complied with any of the provisions set forth in clause (iii) of paragraph
15
below, then an Additional Termination Event shall have occurred with respect
to
Party A and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(d)
An
amendment and/or supplement to the Indenture (or any other Basic Document)
is
made without the prior written consent of Party A (such consent not to be
unreasonably withheld), if such amendment and/or supplement would: (a)
materially adversely affect any of Party A's rights or obligations hereunder;
or
(b) materially adversely affect the obligations of, or materially adversely
impact the ability of, Party B to fully perform any of Party B's obligations
hereunder. For purposes of Section 6 of the Master Agreement, Party B shall
be
the sole Affected Party.
(e)
The
delivery of notice of any redemption or other prepayment in whole, but not
in
part, of the Notes in connection with any redemption pursuant to the Indenture.
For purposes of Section 6 of the Master Agreement, Party B shall be the sole
Affected Party, and the Early Termination Date shall occur not earlier than
the
date of redemption.
14)
Rating Agency Downgrade. In the event that Party A’s long-term unsecured and
unsubordinated debt rating is reduced below “A+” by S&P or Party A’s
short-term unsecured and unsubordinated debt rating is reduced below “A-1” by
S&P or its long-term unsecured and unsubordinated debt rating is withdrawn
or reduced below “A1” by Moody’s or its short-term unsecured and unsubordinated
debt rating is reduced below “P1” by Moody’s, or in the event that Party A does
not have a short-term rating from Moody’s, its long-term unsecured and
unsubordinated debt rating is withdrawn or reduced below “Aa3” by Moody’s (and
together with S&P and Fitch, the “Swap Rating Agencies”, and such rating
thresholds, “Approved Rating Thresholds”), then within 30 days after such rating
withdrawal or downgrade (unless, within 30 days after such withdrawal or
downgrade, each such Swap Rating Agency, as applicable, has reconfirmed the
rating of Home
Equity Loan Asset-Backed Notes, Series 2006-3 (the “Notes”), which was in effect
immediately prior to such withdrawal or downgrade), Party A shall, at its own
expense, subject to the Rating Agency Condition, either (i) seek another entity
to replace Party A as party to this Agreement that meets or exceeds the Approved
Rating Thresholds on terms substantially similar to this Agreement, (ii) obtain
a guaranty of, or a contingent agreement of another person with the Approved
Rating Thresholds, to honor, Party A’s obligations under this Agreement, or
(iii) post collateral which will be sufficient to restore the immediately prior
ratings of the Notes. Party A’s failure to do any of the foregoing shall, at
Party B’s option, constitute an Additional Termination Event with Party A as the
Affected Party. In the event that Party A’s long-term unsecured and
unsubordinated debt rating is withdrawn or reduced below “BBB-” by S&P, then
within 10 Business Days after such rating withdrawal or downgrade, Party A
shall, subject to the Rating Agency Condition and at its own expense, either
(i)
secure another entity to replace Party A as party to this Agreement that meets
or exceeds the Approved Rating Thresholds on terms substantially similar to
this
Agreement or (ii) obtain a guaranty of, or a contingent agreement of another
person with the Approved Rating Thresholds, to honor, Party A’s obligations
under this Agreement. For purposes of this provision, “Rating Agency Condition”
means, with respect to any particular proposed act or omission to act hereunder
that the party acting or failing to act must consult with each of the Swap
Rating Agencies then providing a rating of the Notes and receive from each
of
the Swap Rating Agencies a prior written confirmation that the proposed action
or inaction would not cause a downgrade or withdrawal of the then-current rating
of the Notes.
15)
Compliance with Regulation AB.
(i)
Party
A
agrees
and acknowledges that Renaissance
Mortgage Acceptance Corp. (the
“Depositor”) may be required under Regulation AB, as defined in the Indenture,
to disclose certain financial information regarding Party A or its group of
affiliated entities, if applicable, depending on the aggregate “significance
percentage” of this Agreement and any other derivative contracts between Party A
or its group of affiliated entities, if applicable, and Party B, as calculated
from time to time in accordance with Item 1115 of Regulation AB.
(ii)
It
shall be a swap disclosure event (“Swap Disclosure Event”) if, on any Business
Day after the date hereof for so long as the Issuing Entity is required to
file
periodic reports under the Exchange Act with respect to the Certificates, Party
B or the Depositor requests in writing from Party A the applicable financial
information described in Item 1115(b) of Regulation AB (such request to be
based
on a reasonable determination by the Depositor, based on "significance
estimates" made in substantially the same manner as that used in the Sponsor's
internal risk management process in respect of similar instruments and furnished
by the Sponsor to the Depositor, or if the Sponsor does not furnish such
significance estimates to the Depositor, based on a good faith determination
of
such significance estimates by the Depositor in a manner that it deems
reasonable) (the “Swap Financial Disclosure”).
(iii)
Upon the occurrence of a Swap Disclosure Event, Party A, at its own expense,
shall either (1)(a) either (i) provide to the Depositor the current Swap
Financial Disclosure in an ▇▇▇▇▇-compatible format (for example, such
information may be provided in Microsoft Word® or Microsoft Excel® format but
not in .pdf format) or (ii) provide written consent to the Depositor to
incorporation by reference of such current Swap Financial Disclosure that are
filed with the Securities and Exchange Commission in the Exchange Act Reports
of
the Depositor, (b) if applicable, cause its outside accounting firm to provide
its consent to filing or incorporation by reference in the Exchange Act Reports
of the Depositor of such accounting firm’s report relating to their audits of
such current Swap Financial Disclosure, and (c) provide to the Depositor any
updated Swap Financial Disclosure with respect to Party A or any entity that
consolidates Party A within five days of the release of any such updated Swap
Financial Disclosure; (2) secure another entity to replace Party A as party
to
this Agreement on terms substantially similar to this Agreement, which entity
(or a guarantor therefor) meets or exceeds the Approved Rating Thresholds and
which entity complies with the requirements of Item 1115 of Regulation AB and
clause (1) above; (3) obtain a guaranty of Party A’s obligations under this
Agreement from an affiliate of Party A that complies with the financial
information disclosure requirements of Item 1115 of Regulation AB, and cause
such affiliate to provide Swap Financial Disclosure and any future Swap
Financial Disclosure and other information pursuant to clause (1), such that
disclosure provided in respect of such affiliate will satisfy any disclosure
requirements applicable to the Swap Provider; or (4) transfer Eligible
Collateral to Party B's Custodian in an amount which is sufficient, as
reasonably determined in good faith by the Depositor, to reduce the aggregate
significance percentage below 10% (or, so long as Party A is able to provide
the
Swap Financial Disclosure required pursuant to Item 1115(b)(1) of Regulation
AB,
below 20%, in the event Party A is requested to provide the Swap Financial
Disclosure required pursuant to Item 1115(b)(2) of Regulation AB).
(iv)
Party A agrees that, in the event that Party A provides Swap Financial
Disclosure to the Depositor in accordance with clause (iii)(1) above or causes
its affiliate to provide Swap Financial Disclosure to the Depositor in
accordance with clause (iii)(3) above, it will indemnify and hold harmless
the
Depositor, its respective directors or officers and any person controlling
the
Depositor, from and against any and all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in such Swap Financial Disclosure or caused by any omission or alleged
omission to state in such Swap Financial Disclosure a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading.
(v)
Third
Party Beneficiary. Depositor shall be an express third party beneficiary of
this
Agreement as if a party hereto to the extent of Depositor’s rights explicitly
specified herein.
16)
For
purposes of Section 7, Party A hereby consents to the Permitted Security
Interest.
“Permitted
Security Interest” means the collateral assignment by Party B of the Swap
Collateral to the Indenture Trustee pursuant to the Indenture, and the granting
to the Indenture Trustee of a security interest in the Swap Collateral pursuant
to the Indenture.
“Swap
Collateral” means all right, title and interest of Party B in this Agreement,
each Transaction hereunder, and all present and future amounts payable by Party
A to Party B under or in connection with the Agreement or any Transaction
governed by the Agreement, whether or not evidenced by a Confirmation,
including, without limitation, any transfer or termination of any such
Transaction.
| 5. |
Account
Details and
Settlement
Information:
|
Payments
to Party A:
|
|
|
|
|||
|
As
advised under separate cover with reference
to this Confirmation, each party shall
provide appropriate payment instructions to the other party in writing
and
such instructions shall be deemed to be incorporated into this
agreement.
|
|||
| Payments to Party B: | |||
|
▇▇▇▇▇
Fargo Bank, N.A.
ABA
# ▇▇▇▇▇▇▇▇▇
Account
Name: SAS Clearing
Account
# 3970771416
FFC:
▇▇▇▇▇▇▇▇
|
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
USA
PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies Party B, which information includes the name and
address of Party B and other information that will allow Party A to identify
Party B in accordance with the Act.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
BANK
OF
AMERICA, N.A.
By: _______________________________
Name:
Title:
Party
B,
acting through its duly authorized signatory, ▇▇▇▇▇▇ agrees to, accepts and
confirms the terms of the foregoing as of the Trade Date.
Renaissance
Home Equity Loan Trust 2006-3
By:
Wilmington Trust Company not in its individual capacity but solely as Owner
Trustee
By: _______________________________
Name:
Title:
SCHEDULE
I
(All
dates are subject to adjustment in accordance with the Modified Following
Business Day Convention.)
|
Calculation
Period scheduled to commence on:
|
Calculation
Period
scheduled
to end on:
|
Notional
Amount (USD)
|
|
10/25/06
|
11/25/06
|
105,810,000.00
|
|
11/25/06
|
12/25/06
|
101,060,000.00
|
|
12/25/06
|
01/25/07
|
96,523,000.00
|
|
01/25/07
|
02/25/07
|
92,189,000.00
|
|
02/25/07
|
03/25/07
|
88,050,000.00
|
|
03/25/07
|
04/25/07
|
84,096,000.00
|
|
04/25/07
|
05/25/07
|
80,319,000.00
|
|
05/25/07
|
06/25/07
|
76,711,000.00
|
|
06/25/07
|
07/25/07
|
73,265,000.00
|
|
07/25/07
|
08/25/07
|
69,973,000.00
|
|
08/25/07
|
09/25/07
|
66,830,000.00
|
|
09/25/07
|
10/25/07
|
63,827,000.00
|
|
10/25/07
|
11/25/07
|
60,958,000.00
|
|
11/25/07
|
12/25/07
|
58,219,000.00
|
|
12/25/07
|
01/25/08
|
55,602,000.00
|
|
01/25/08
|
02/25/08
|
53,102,000.00
|
|
02/25/08
|
03/25/08
|
50,715,000.00
|
|
03/25/08
|
04/25/08
|
48,435,000.00
|
|
04/25/08
|
05/25/08
|
46,257,000.00
|
|
05/25/08
|
06/25/08
|
44,176,000.00
|
|
06/25/08
|
07/25/08
|
42,189,000.00
|
|
07/25/08
|
08/25/08
|
40,189,000.00
|
|
08/25/08
|
09/25/08
|
25,917,000.00
|
|
09/25/08
|
10/25/08
|
24,550,000.00
|
|
10/25/08
|
11/25/08
|
21,267,000.00
|
|
11/25/08
|
12/25/08
|
20,310,000.00
|
|
12/25/08
|
01/25/09
|
19,396,000.00
|
|
01/25/09
|
02/25/09
|
18,523,000.00
|
|
02/25/09
|
03/25/09
|
17,689,000.00
|
|
03/25/09
|
04/25/09
|
16,893,000.00
|
|
04/25/09
|
05/25/09
|
16,132,000.00
|
|
05/25/09
|
06/25/09
|
15,406,000.00
|
|
06/25/09
|
07/25/09
|
14,712,000.00
|
|
07/25/09
|
08/25/09
|
13,960,000.00
|
|
08/25/09
|
09/25/09
|
2,161,000.00
|
|
09/25/09
|
10/25/09
|
2,019,000.00
|
EXHIBIT
E
FORM
OF
CUSTODIAL AGREEMENT
CUSTODIAL
AGREEMENT
THIS
CUSTODIAL AGREEMENT
(as
amended and supplemented from time to time, the “Custodial Agreement”), dated as
of September 28, 2006, by and among HSBC Bank USA, National Association,
not
individually, but as indenture trustee (the “Indenture Trustee”), ▇▇▇▇▇ Fargo
Bank, N.A., as custodian (together with any successor in interest or any
successor appointed hereunder, the “Custodian”), Renaissance REIT Investment
Corp. (“RRIC” or the “Seller”), Renaissance Mortgage Acceptance Corp. (“RMAC” or
the “Depositor”) and Ocwen Loan Servicing, LLC (together with any successor
entity, “Ocwen” or the “Servicer”).
W
I T N E S S E T H T H A T
WHEREAS,
Renaissance Home Equity Loan Trust 2006-3 as issuer, the Indenture Trustee
and
▇▇▇▇▇ Fargo Bank, N.A. as securities administrator, have entered into an
Indenture dated as of September 28, 2006, relating to the issuance of RMAC’s
Home Equity Loan Asset-Backed Notes, Series 2006-3 (as amended and supplemented
from time to time, the “Agreement”); and
WHEREAS,
the
Custodian has agreed to act as agent for the Indenture Trustee for the purposes
of receiving and holding certain documents and other instruments as described
in
Section 2.1(b) of the Mortgage Loan Sale and Contribution Agreement, dated
as of
September 28, 2006 (the “Contribution Agreement”), among RMAC, RRIC and Delta
Funding Corporation as originator (“Delta”), delivered by RRIC under the
Contribution Agreement, all upon the terms and conditions and subject to
the
limitations hereinafter set forth;
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants and agreements
hereinafter set forth, the Indenture Trustee and the Custodian hereby agree
as
follows:
1. Definitions
Capitalized
terms used in this Custodial Agreement and not defined herein shall have
the
meanings assigned in the Agreement, unless otherwise required by the context
herein.
2. Custody
of Mortgage Documents
|
2.1
|
Custodian
to Act as Agent; Acceptance of Mortgage Files.
|
The
Custodian, as the duly appointed agent of the Indenture Trustee for these
purposes, acknowledges that it will hold the Mortgage Notes, the Related
Documents, the assignments and other documents required to be delivered by
RRIC
to the Custodian pursuant to Section 2.1(b) of the Contribution Agreement
and
relating to the Mortgage Loans identified on Schedule I hereto and declares
that
it will hold such Mortgage Notes, Related Documents, assignments and other
documents and any similar documents received by the Indenture Trustee subsequent
to the date hereof (the “Mortgage Files”) as agent for the Indenture Trustee, in
trust, for the benefit of all present and future Noteholders. The Custodian
agrees to execute the initial certification and the final certification set
forth on Exhibits C-1 and C-2 of the Agreement.
|
2.2
|
Recordation
of Assignments.
|
Except
with respect to any MERS Mortgage Loan, if any Mortgage File includes one
or
more assignments to the Indenture Trustee of Related Documents that have
not
been recorded, within 30 days of the Closing Date, RRIC, at no expense to
the
Custodian, shall cause to be recorded in the appropriate public office for
real
property records each such assignment and, upon receipt thereof from such
public
office, shall return each such assignment to the Custodian; The Custodian
also
agrees to perform its other obligations, including, but not limited to its
obligations under Section 2.03 of the Agreement and Section 3.07 of the
Servicing Agreement.
2.3 Review
of Mortgage Files.
The
Custodian agrees, for the benefit of the Issuer, the Seller, the Depositor
and
the Noteholders, to review, in accordance with the provisions of Section
2.03 of
the Agreement, each Mortgage File. If in performing the reviews required
by this
Section 2.3, the Custodian finds any document or documents constituting a
part
of a Mortgage File to be unexecuted or missing or, based on the criteria
set
forth in Section 2.1(b) of the Contribution Agreement, to be unrelated to
the
applicable Mortgage Loan, the Custodian shall promptly so notify RRIC, RMAC
and
the Indenture Trustee.
In
connection with such review, the Custodian makes no representations as to,
and
shall not be responsible to verify (A) the validity, legality, enforceability,
due authorization, recordability, sufficiency, or genuineness of any of the
documents contained in any Mortgage File or (B) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
2.4 Notification
of Breaches of Representations and Warranties.
Upon
discovery by the Custodian of a breach of any representation or warranty
made by
Delta as set forth in Section 3.1(c) of the Contribution Agreement, the
Custodian shall give prompt written notice to Delta, RRIC, RMAC and the
Indenture Trustee.
2.5 Custodian
to Cooperate; Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Servicer shall, pursuant to the Servicing Agreement, promptly
notify the Custodian by delivering to the Custodian two copies of a Request
for
Release (Exhibit B to the Servicing Agreement), one of which will be returned
to
the Servicer with the Mortgage File, executed by a Servicing Officer or in
a
mutually agreeable electronic format that originates from a Servicing Officer
and shall request delivery to it of the Mortgage File. The Custodian agrees,
upon receipt of such certification and request, promptly to release the related
Mortgage File to the Servicer.
From
time
to time as is appropriate for the servicing or foreclosure of any Mortgage
Loan,
the Master Servicer or the Servicer shall, pursuant to the Servicing Agreement,
deliver to the Custodian two copies of a Request for Release requesting that
possession of all of the Mortgage File be released to the Master Servicer
or the
Servicer and certifying as to the reason for such release. With such Request
for
Release, the Master Servicer or the Servicer shall, pursuant to the Servicing
Agreement, deliver to the Custodian a receipt signed by a Servicing Officer
of
the Master Servicer or the Servicer on behalf of the Master Servicer or the
Servicer (or in a mutually agreeable electronic format that originates from
a
Servicing Officer), and upon receipt of the foregoing, the Custodian shall
deliver the Mortgage File or such document to the Master Servicer or the
Servicer and the Master Servicer or the Servicer shall, pursuant to the
Servicing Agreement, hold the Mortgage File or such document in trust for
the
benefit of the Seller and the Noteholders. The Master Servicer or the Servicer
shall, pursuant to the Servicing Agreement, cause each Mortgage File to be
returned to the Custodian when the need therefor by the Master Servicer or
the
Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Collection Account to the extent required by the Agreement or (ii) the
Mortgage File has been delivered to an attorney, or to a public trustee or
other
public official as required by law, for purposes of initiating or pursuing
legal
action or other proceedings for the foreclosure of the Mortgaged Property
either
judicially or non-judicially, and the Master Servicer or the Servicer has
delivered to the Custodian a certificate of a Servicing Officer of the Master
Servicer or the Servicer certifying as to the name and address of the Person
to
which such Mortgage File was delivered and the purpose or purposes of such
delivery. In the event of the liquidation of a Mortgage Loan, the Custodian
shall deliver such receipt with respect thereto to the Master Servicer or
the
Servicer upon deposit of the related Liquidation Proceeds in the Distribution
Account to the extent required by the Agreement.
2.6 Assumption
Agreements.
In
the
event that any assumption agreement or substitution of liability agreement
is
entered into with respect to any Mortgage Loan subject to this Custodial
Agreement in accordance with the terms and provisions of the Agreement, the
Master Servicer or the Servicer shall, pursuant to the Servicing Agreement,
notify the Custodian that such assumption or substitution agreement has been
completed by forwarding to the Custodian the original of such assumption
or
substitution agreement, which document shall be added to the related Mortgage
File and, for all purposes, shall be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting parts
thereof.
3. Concerning
the Custodian
3.1 Custodian
a Bailee and Agent of the Indenture Trustee.
With
respect to each Mortgage Note, Related Document and other documents constituting
each Mortgage File which are delivered to the Custodian, the Custodian is
exclusively the bailee and agent of the Indenture Trustee, holds such documents
for the benefit of the Trust and the Noteholders and undertakes to perform
such
duties and only such duties as are specifically set forth in this Agreement.
Except upon compliance with the provisions of Section 2.5 of this Custodial
Agreement, no Mortgage Note, Related Document or other document constituting
a
part of a Mortgage File shall be delivered by the Custodian to the Master
Servicer or the Servicer or otherwise released from the possession of the
Custodian.
3.2 Indemnification.
Both
RRIC
and RMAC hereby agree to indemnify and hold the Custodian harmless from and
against all claims, liabilities, losses, actions, suits or proceedings at
law or
in equity, or any other expenses, fees or charges of any character or nature,
which the Custodian may incur or with which the Custodian may be threatened
by
reason of its acting as custodian under this Custodial Agreement, including
indemnification of the Custodian against any and all expenses, including
attorney’s fees if counsel for the Custodian has been approved by the Seller and
the Depositor, which approval shall not be unreasonably withheld, and the
cost
of defending any action, suit or proceedings or resisting any claim.
Notwithstanding the foregoing, it is specifically understood and agreed that
in
the event any such claim, liability, loss, action, suit or proceeding or
other
expense, fees, or charge shall have been caused by reason of any negligent
act,
negligent failure to act, or willful misconduct on the part of the Custodian,
or
which shall constitute a willful breach of its duties hereunder, the
indemnification provisions of this Custodial Agreement shall not apply. The
indemnification provided by this Section 3.2 shall survive the termination
or
assignment of this Custodial Agreement or the resignation or removal of the
Custodian hereunder.
3.3 Custodian
May Own Notes.
The
Custodian in its individual or any other capacity may become the owner or
pledgee of Notes with the same rights it would have if it were not Custodian.
3.4 Custodian’s
Fees and Expenses.
RRIC
will
pay the initial fees of the Custodian. Other fees payable to the Custodian
hereunder for all services rendered by it in the exercise and performance
of any
of the powers and duties hereunder of the Custodian, as set forth in a separate
letter agreement shall be paid from the Master Servicing Fee. RRIC will pay
or
reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance
with
any of the provisions of this Custodial Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ), except any such expense, disbursement
or
advance as may arise from its negligence or bad faith.
3.5 Custodian
May Resign; Indenture Trustee May Remove Custodian.
The
Custodian may resign from the obligations and duties hereby imposed upon
it as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans upon giving 60 days written notice to the Indenture Trustee. Upon
receiving such notice of resignation, the Indenture Trustee shall either
take
custody of the Mortgage Files itself and give prompt notice thereof to RRIC,
RMAC and the Custodian or promptly appoint a successor Custodian which is
able
to satisfy the requirements of Section 3.7(i) of this Custodial Agreement
by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Custodian and one copy to the successor Custodian.
If
the Indenture Trustee has not taken custody of the Mortgage Files and no
successor ▇▇▇▇▇▇▇▇▇ has been so appointed, the resigning Custodian may petition
any court of competent jurisdiction for the appointment of a successor
▇▇▇▇▇▇▇▇▇. All fees and expenses of any successor Custodian shall be the
responsibility of RRIC.
The
Indenture Trustee may remove the Custodian at any time for cause, or otherwise
the Indenture Trustee may remove the Custodian at any time upon giving 60
days
written notice. In such event, the Indenture Trustee shall take custody of
the
Mortgage Files itself, or shall appoint, or petition a court of competent
jurisdiction to appoint, a successor Custodian hereunder. Any successor
Custodian shall be a depository institution subject to supervision or
examination by federal or state authority and shall be able to satisfy the
other
requirements contained in Section 3.7(i) of this Custodial Agreement.
Any
resignation or removal of the Custodian and appointment of a successor Custodian
pursuant to any of the provisions of this Section 3.5 shall become effective
only upon acceptance of appointment by the successor Custodian and subject
to
the prior approval of RRIC and RMAC. The Indenture Trustee shall give prompt
notice to RRIC, RMAC, the Servicer, the Master Servicer and the Custodian
of the
appointment of any successor Custodian.
3.6 Merger
or Consolidation of Custodian.
Any
Person into which the Custodian may be merged or converted or with which
it may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
3.7 Representations
of the Custodian.
The
Custodian hereby represents and warrants as follows:
| (i) |
It
is a national banking association subject to supervision or examination
by
a federal authority, has a combined capital and surplus of at least
$50,000,000 and is qualified to do business in the jurisdiction
in which
it will hold any Mortgage File;
|
| (ii) |
It
has full power, authority and legal right to execute and deliver
this
Custodial Agreement and to perform its obligations hereunder and
has taken
all necessary action to authorize the execution, delivery and performance
by it of this Custodial Agreement;
|
| (iii) |
To
the best of its knowledge, after reasonable investigation, the
execution
and delivery by it of this Custodial Agreement and the performance
by it
of its obligations hereunder will not violate any provision of
its Charter
or By-Laws or any law or regulation governing it or any order,
writ,
judgment or decree of any court, arbitrator or governmental authority
or
agency applicable to it or any of its assets. To the best of its
knowledge, after reasonable investigation, such execution, delivery
and
performance will not require the authorization, consent or approval
of,
the giving of notice to, the filing or registration with, or the
taking of
any other action with respect to, any governmental authority or
agency
regulating its activities. To the best of its knowledge, after
reasonable
investigation, such execution, delivery and performance will not
conflict
with, or result in a breach or violation of, any material indenture,
mortgage, deed of trust, lease or other agreement or instrument
to which
it is a party or by which it or its properties are bound;
and
|
| (iv) |
This
Custodial Agreement has been duly executed and delivered by it.
This
Custodial Agreement, when executed and delivered by the other parties
hereto, will constitute its valid, legal and binding obligation,
enforceable against it in accordance with its terms, except as
the
enforcement thereof may be limited by applicable debtor relief
laws and
that certain equitable remedies may not be available regardless
of whether
enforcement is sought in equity or at
law.
|
3.8 Limitations
on the Responsibilities of the Custodian.
(a) Neither
the Custodian nor any of its Affiliates, directors, officers, agents, counsel,
attorneys-in-fact, and employees shall be liable for any action or omission
to
act hereunder except for its own or such person’s gross negligence or willful
misconduct. Notwithstanding the foregoing sentence, in no event shall the
Custodian or its Affiliates, directors, officers, agents, counsel,
attorneys-in-fact, and employees be held liable for any special, indirect,
punitive or consequential damages resulting from any action taken or omitted
to
be taken by it or them hereunder or in connection herewith even if advised
of
the possibility of such damages. The provisions of this Section 3.8 shall
survive the resignation or removal of the Custodian and the termination of
this
Agreement.
(b) The
Custodian shall not be responsible for preparing or filing any reports or
returns relating to federal, state or local income taxes with respect to
this
Agreement, other than for the Custodian’s compensation or for reimbursement of
expenses.
(c) The
Custodian shall not be responsible or liable for, and makes no representation
or
warranty with respect to, the validity, adequacy or perfection of any lien
upon
or security interest in any Mortgage File.
(d) The
Custodian shall not be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include, but not
be
limited to, acts of God, strikes, lockouts, riots, acts or war or terrorism,
epidemics, nationalization, expropriation, currency restrictions, governmental
regulations superimposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes or other disasters.
(e) The
duties and obligations of the Custodian shall only be such as are expressly
set
forth in this Agreement or as set forth in a written amendment to this Agreement
executed by the parties hereto or their successors and assigns. In the event
that any provision of this Agreement implies or requires that action or
forbearance be taken by a party, but is silent as to which party has the
duty to
act or refrain from acting, the parties agree that the Custodian shall not
be
the party required to take the action or refrain from acting. In no event
shall
the Custodian have any responsibility to ascertain or take action except
as
expressly provided herein.
(f) Nothing
in this Agreement shall be deemed to impose on the Custodian any duty to
qualify
to do business in any jurisdiction, other
than
(i) any
jurisdiction where any Mortgage File is or may be held by the Custodian from
time to time hereunder, and (ii) any jurisdiction where its ownership of
property or conduct of business requires such qualification and where failure
to
qualify could have a material adverse effect on the Custodian or its property
or
business or on the ability of the Custodian to perform it duties hereunder.
(g) The
Indenture Trustee and RRIC agree that the Custodian may delegate any of its
duties under this Agreement to any of its agents, attorneys-in-fact, or
Affiliates. Any such agent, attorney-in-fact, or Affiliate (and such Affiliate’s
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Custodian
is entitled under this Agreement.
(h) The
Custodian shall have no duty to ascertain whether or not any cash amount
or
payment has been received by the Seller, Depositor, the Master Servicer,
the
Servicer or any third person.
4. Miscellaneous
Provisions
|
4.1
|
Notices.
|
All
notices, requests, consents and demands and other communications required
under
this Custodial Agreement or pursuant to any other instrument or document
delivered hereunder shall be in writing and, unless otherwise specifically
provided, may be delivered personally, by telegram or telex, or by registered
or
certified mail, postage prepaid, return receipt requested, at the addresses
specified below (unless changed by the particular party whose address is
stated
herein by similar notice in writing), in which case the notice will be deemed
delivered when received:
|
The
Indenture Trustee:
|
HSBC
Bank USA, National Association
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
New
York, New York
|
|
|
Attention: Corporate
Trust/Renaissance HEL Trust 2006-3
|
|
|
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Confirmation: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
The
Custodian:
|
▇▇▇▇▇
Fargo Bank, N.A.
|
|
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
Irvine,
California 92614
|
|
|
Attention:
Mortgage Document Custody
|
|
|
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Confirmation:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
RRIC:
|
Renaissance
REIT Investment Corp.
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
Woodbury,
New York 11797
|
|
|
Attention:
Executive Department
|
|
|
Telecopy:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Confirmation: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
RMAC:
|
Renaissance
Mortgage Acceptance Corp.
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
Woodbury,
New York 11797
|
|
|
Attention:
Executive Department
|
|
|
Telecopy:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Confirmation: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
The
Servicer:
|
Ocwen
Loan Servicing, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Secretary
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation
Number: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
The
Master Servicer:
|
▇▇▇▇▇
Fargo Bank, N.A.
|
|
P.O.
Box 98
|
|
|
Columbia,
Maryland 21046
|
|
|
Or
in the case of overnight deliveries:
|
|
|
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Columbia,
Maryland 21045
|
|
|
Attention:
Corporate Trust Services - Renaissance 2006-3
|
|
|
Telecopy:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Confirmation:
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
4.2
|
Amendments.
|
No
modification or amendment of or supplement to this Custodial Agreement shall
be
valid or effective unless the same is in writing and signed by all parties
hereto, and the Indenture Trustee shall not enter into any amendment hereof
except as permitted by the Agreement. The Indenture Trustee shall give prompt
notice to the Custodian of any amendment or supplement to the Agreement and
furnish the Custodian with written copies thereof. RRIC, RMAC, the Servicer,
the
Master Servicer and the Indenture Trustee agree to obtain the Custodian’s
written consent prior to entering into any amendment or modification of the
Agreement which affects any right, benefit, duty, or obligation of the Custodian
thereunder.
|
4.3
|
Governing
Law.
|
This
Custodial Agreement shall be deemed a contract made under the laws of the
State
of New York and shall be construed and enforced in accordance with and governed
by the laws of the State of New York (without regard to its conflicts of
laws
provisions).
|
4.4
|
Recordation
of Agreement.
|
To
the
extent permitted by applicable law, this Custodial Agreement is subject to
recordation in all appropriate public offices for real property records in
all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties subject to the Mortgage Loans are situated, and in any
other appropriate public recording office or elsewhere, such recordation
to be
effected by RRIC and at its expense, but only upon direction accompanied
by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Noteholders.
For
the
purpose of facilitating the recordation of this Custodial Agreement as herein
provided and for other purposes, this Custodial Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall
be deemed to be an original, and such counterparts shall constitute but one
and
the same instrument.
|
4.5
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Custodial
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Custodial Agreement and
shall
in no way affect the validity or enforceability of the other provisions of
this
Custodial Agreement or of the Notes or the rights of the Holders thereof.
|
4.6
|
Waiver
of Trial By Jury.
|
Each
party hereto waives the right to trial by jury in any action, suit, proceeding,
or counterclaim of any kind arising out of or related to this Custodial
Agreement. In the event of litigation, this Custodial Agreement may be filed
as
a written consent to a trial by the court.
|
4.7
|
Counterparts.
|
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
|
4.8
|
Reliance
of Custodian.
|
In
the
absence of bad faith, negligence or willful misconduct on the part of the
Custodian, the Custodian may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
request, instructions, certificate, opinion or the document furnished to
the
Custodian, reasonably believed by the Custodian to be genuine and to have
been
signed or presented by the proper party or parties and conforming to the
requirements of this Custodial Agreement; but in the case of any Related
Document or other request, instruction, document or certificate which by
any
provision hereof is specifically required to be furnished to the Custodian,
the
Custodian shall be under a duty to examine the same to determine whether
or not
it conforms to the requirements of this Custodial Agreement.
The
Custodian may rely upon the validity of documents delivered to it, without
investigation as to their authenticity or legal effectiveness and RRIC and
RMAC
will hold the Custodian harmless from any claims that may arise or be asserted
against the Custodian because of the invalidity of any such documents. Except
as
provided herein, no provision of this Custodial Agreement shall require the
Custodian to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, if it should
have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
The
Custodian may consult with competent counsel with regard to legal questions
arising out of or in connection with this Custodial Agreement and the informed
advice or opinion of such counsel shall be full and complete authorization
and
protection in respect of any action taken, omitted or suffered by the Custodian
in good faith in accordance herewith.
|
4.9
|
Transmission
of Mortgage Files.
|
Written
instructions as to the method of shipment and shipper(s) the Custodian is
directed to utilize in connection with the transmission of Mortgage Files
and
Related Documents in the performance of the Custodian’s duties hereunder shall
be delivered by the Master Servicer or the Servicer to the Custodian prior
to
any shipment of any Mortgage Files and Related Documents hereunder. The Master
Servicer or the Servicer will arrange for the provision of such services
at its
sole cost and expense (or, at the Custodian’s option, reimburse the Custodian
for all costs and expenses incurred by the Custodian consistent with such
instructions) and will maintain such insurance against loss or damage to
Mortgage Files and Related Documents as the Master Servicer and the Servicer
deems appropriate. Without limiting the generality of the provisions of Section
3.2 above, it is expressly agreed that in no event shall the Custodian have
any
liability for any losses or damages to any person, including without limitation
the Master Servicer or the Servicer, arising out of actions of the Custodian
consistent with instructions of the Master Servicer or the Servicer, as the
case
may be. If the Custodian does not receive written direction, the Custodian
is
hereby authorized to utilize a nationally recognized courier service, and
shall
incur no liability for acting in accordance with this sentence.
IN
WITNESS WHEREOF,
this
Agreement is executed as of the date first above written.
|
HSBC
BANK USA, NATIONAL ASSOCIATION,
as
Indenture Trustee
By: ____________________________
Name:
Title:
|
|
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Custodian
By: ____________________________
Name:
Title:
|
|
|
RENAISSANCE
REIT INVESTMENT CORP.,
as
Seller
By: ____________________________
Name:
Title:
|
|
|
RENAISSANCE
MORTGAGE ACCEPTANCE CORP.,
as
Depositor
By: ____________________________
Name:
Title:
|
|
|
OCWEN
LOAN SERVICING, LLC,
as
Servicer
By: ____________________________
Name:
Title:
|
|
|
Acknowledged:
▇▇▇▇▇
FARGO BANK, N.A.,
as
Master Servicer
By: ____________________________
Name:
Title:
|
Schedule
I
DELIVERED
TO INDENTURE TRUSTEE AT CLOSING
AS
PROVIDED IN EXHIBIT
A
TO
THE
CONTRIBUTION
AGREEMENT
EXHIBIT
F-1
FORM
OF
TRANSFEROR CERTIFICATE
FOR
TRANSFERS OF THE CLASS N NOTES
[Date]
[▇▇▇▇▇
Fargo Bank, N.A.]
|
Re:
|
Renaissance
Home Equity Loan Trust 2006-3 Home Equity Loan Asset-Backed Notes,
Series
2006-3 (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 September 28, 2006 (the “Closing Date”) of
$______________ (the “Transferred Notes”). The Class N Notes, including the
Transferred Notes, were issued pursuant to the Indenture, dated as of September
28, 2006 (the “Indenture”), among Renaissance Home Equity Loan Trust 2006-3 (the
“Issuer”), HSBC Bank USA, National Association (the “Indenture Trustee”) and
▇▇▇▇▇ Fargo Bank, N.A. (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]
[▇▇▇▇▇
Fargo Bank, N.A.]
|
Re:
|
Renaissance
Home Equity Loan Trust 2006-3 Home Equity Loan Asset-Backed Notes,
Series
2006-3 (the “Notes”)
|
Ladies
and Gentlemen:
__________________
(the “Transferee”) intends to purchase from _________________ (the “Transferor”)
the Notes having an initial aggregate Note Balance as of September 28, 2006
(the
“Closing Date”) of $_____________ (the “Transferred Notes”). The Notes,
including the Transferred Notes, were issued pursuant to the Indenture, dated
as
of September 28, 2006 (the “Indenture”), between Renaissance Home Equity Loan
Trust 2006-3 (the “Issuer”), HSBC Bank USA, National Association (the “Indenture
Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A. (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 Section 4975 of 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, the Depositor, 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 F-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 ▇▇▇▇▇ Fargo Bank, N.A., 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, as
amended.
|
|
____
|
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 F-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 ▇▇▇▇▇ Fargo Bank, N.A., 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
|
|
|
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 § 4.16(e)(ii)
of the
Indenture)
[Date]
[▇▇▇▇▇
Fargo Bank, N.A.]
|
Re:
|
Renaissance
Home Equity Loan Trust 2006-3
Home
Equity Loan Asset-Backed Notes, Series 2006-3 (the
“Notes”)
|
Reference
is hereby made to the Indenture, dated as of September 28, 2006 (the
“Indenture”), between Renaissance Home Equity Loan Trust 2006-3 (the “Issuer”),
HSBC Bank USA, National Association (the “Indenture Trustee”) and ▇▇▇▇▇ Fargo
Bank, N.A. (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 September
28,
2006 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.
|
[Name
of Transferor]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
|
EXHIBIT
G-2
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 4.16(e)(iii)
of
the
Indenture)
[Date]
[▇▇▇▇▇
Fargo Bank, N.A.]
|
Re:
|
Renaissance
Home Equity Loan Trust 2006-3
Home
Equity Loan Asset-Backed Notes, Series 2006-3 (the
“Notes”)
|
Reference
is hereby made to the Indenture, dated as of September 28, 2006 (the
“Indenture”), between Renaissance Home Equity Loan Trust 2006-3 (the “Issuer”),
HSBC Bank USA, National Association (the “Indenture Trustee”) and ▇▇▇▇▇ Fargo
Bank, N.A. (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 September 28, 2006 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:
|
|
APPENDIX
A
DEFINITIONS
“10-K
Filing Deadline”: As specified in Section 3.13(a)(iv) of the Servicing
Agreement.
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those mortgage master servicing practices of prudent mortgage
lending
institutions which master service mortgage loans of the same type and quality
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located to the extent applicable to the Master Servicer, or (y) as provided
in Section 4.01 of the Servicing Agreement, but in no event below the standard
set forth in clause (x).
“Accounts”:
Collectively, the Collection Account and the Payment Account.
“Additional
Disclosure Notification”: The form of notice set forth on Exhibit K of the
Servicing Agreement.
“Additional
Form 10-D Disclosure”: The meaning set forth in Section 3.13(a)(i) of the
Servicing Agreement.
“Additional
Form 10-K Disclosure”: The meaning set forth in Section 3.13(a)(iv) of the
Servicing Agreement.
“Adjustable
Rate Notes”: The Group I Notes.
“Adjusted
Net Mortgage Rate”: As to each Mortgage Loan, an amount equal to the Loan Rate
less the sum of (i) the Servicing Fee Rate and (ii) the Master Servicing
Fee
Rate.
“Administrator”:
Delta Funding Corporation in the performance of its duties pursuant to Article
VII under the Mortgage Loan Sale and Contribution Agreement.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Principal Amount”: With respect to any Payment Date, the sum of the Basic
Principal Amounts for each Loan Group.
“Ancillary
Income”: All income derived from the Mortgage Loans, other than Servicing Fees
and Master Servicing Fees, including but not limited to, late charges, fees
received with respect to checks or bank drafts returned by the related bank
for
non-sufficient funds, assumption fees, optional insurance administrative
fees
and all other incidental fees and charges, including investment income on
the
Collection Account and any interest due and actually received from the related
Mortgagor that accrued during the portion of the Prepayment Period that is
in
the same calendar month as the Payment Date with respect to such Mortgage
Loan
in connection with such Principal Prepayments in full. Ancillary Income does
not
include any Prepayment Charges.
“Applied
Realized Loss Amounts”: As
to any
Payment Date, an amount equal to the excess, if any, of (i) the aggregate
Class
Note Balance of the Offered
Notes, after giving effect to all payments on such Payment Date over (ii)
the
Pool Balance as of the last day of the related Due Period.
“Appraised
Value”: The appraised value of the Mortgaged Property based upon the appraisal
or the insured automated valuation report made by or for the originator at
the
time of the origination of the related Mortgage Loan.
“Approved
Servicer”: For purposes of Sections 3.01(a), 5.04, 6.02 and 6.04 of the
Servicing Agreement, any established housing and home finance institution,
bank
or other mortgage loan or home equity loan servicer, that meets each of the
following requirements:
(i) an
Approved Servicer shall be acceptable to each of the Seller, the Depositor,
the
Master Servicer, the Securities Administrator and the Indenture
Trustee;
(ii) an
Approved Servicer shall be either (a) an affiliate or division of ▇▇▇▇▇ Fargo
Bank, N.A. that services mortgage loans similar to the Mortgage Loans or
(b) a
Person who has a rating of at least “Above Average” by S&P and either a
rating of at least “RPS2” by Fitch Ratings, Inc. or a rating of at least “SQ2”
by ▇▇▇▇▇’▇;
(iii) each
Rating Agency shall have delivered a letter to the Indenture Trustee (such
letter not to be an expense of the Indenture Trustee) prior to the appointment
of the Approved Servicer stating that the proposed appointment of such Approved
Servicer as Servicer hereunder will not result in the reduction or withdrawal
of
the then current ratings of the Offered Notes ; and
(iv) an
Approved Servicer shall have a net worth of not less than
$25,000,000.
“Assessment
of Compliance”: As defined in Section 3.09 of the Servicing Agreement.
“Assignment
of Mortgage”: With respect to any Mortgage, an assignment, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction in which the related Mortgaged Property is located to reflect
the
pledge of the Mortgage to the Indenture Trustee.
“Attestation
Report”: As defined in Section 3.09 of the Servicing Agreement.
“Authorized
Newspaper”: A newspaper of general circulation in the Borough of Manhattan, The
City of New York, printed in the English language and customarily published
on
each Business Day, whether or not published on Saturdays, Sundays or
holidays.
“Authorized
Officer”: With respect to the Issuer, any officer of the Owner Trustee who is
authorized to act for the Owner Trustee in matters relating to the Issuer
and
who is identified on the list of Authorized Officers delivered by the Owner
Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter) and any authorized
officer of the Originator in its capacity as Administrator.
“Available
Funds”: As to any Payment Date, an amount equal to the sum of the following
amounts, without duplication, with respect to the Mortgage Loans:
(i)
scheduled payments of principal and interest on the Mortgage Loans due during
the related Due Period and received by the Servicer and the Master Servicer,
net
of (a) amounts representing the Servicing Fee and the Master Servicing Fee
with
respect to each Mortgage Loan and reimbursement for Monthly Advances and
Servicing Advances and other amounts reimbursable to the Seller, the Depositor,
the Servicer, the Master Servicer, the Securities Administrator, the Owner
Trustee and the Indenture Trustee pursuant to Sections 5.03, 3.01(g), 6.01(b),
6.03(b) (with respect to Servicing Transfer Costs) of the Servicing Agreement
and Section 6.07 of the Indenture (with respect to indemnification amounts),
as
applicable and (b) any Net Swap Payment or Swap Termination Payment owed
to the
Swap Provider (other than any Swap Termination Payment owed to the Swap Provider
as a result of a Swap Provider Trigger Event); (ii) Net Liquidation Proceeds,
Insurance Proceeds and any Subsequent Recoveries with respect to the Mortgage
Loans and unscheduled payments of principal and interest on the Mortgage
Loans
received by the Servicer and the Master Servicer during the related Prepayment
Period (net of amounts representing the Servicing Fee and the Master Servicing
Fee and any Ancillary Income with respect to each Mortgage Loan and
reimbursement for Monthly Advances and Servicing Advances); (iii) the Purchase
Price for repurchased Defective Mortgage Loans and any related Substitution
Adjustment Amounts; (iv) payments from the Servicer and the Master Servicer
in
connection with (a) Monthly Advances and (b) Compensating Interest; (v) payments
from the Seller in connection with the redemption of the Notes as provided
in
this Indenture, (vi) any Net Swap Payment or Swap Termination Payment (to
the
extent not applied to a replacement swap as required to be retained and applied
as provided herein) received by the Indenture Trustee under the Interest
Rate
Swap Agreement and (vii) with respect to the first Payment Date, the Initial
Deposit.
“Available
Funds Rate”: The Group I Available Funds Rate.
“Back-Up
Certification”: The meaning set forth in Section 3.13(a)(iv) of the Servicing
Agreement.
“Balloon
Loan”: Any Mortgage Loan that provided on the date of origination for scheduled
monthly payments in level amounts substantially lower than the amount of
the
final scheduled payment.
“Basic
Principal Amount”: As to any Payment Date and Loan Group, an amount equal to the
sum of the following amounts (without duplication) with respect to the Mortgage
Loans in that Loan Group: (i) each scheduled payment of principal on a Mortgage
Loan due during such Due Period and received by the Servicer and remitted
by the
Servicer to the Master Servicer on or prior to the related Determination
Date;
(ii) any Net Liquidation Proceeds allocable to principal, any Subsequent
Recoveries and all full and partial principal prepayments received by the
Servicer and remitted by the Servicer to the Master Servicer during the related
Prepayment Period; (iii) the portion of the Purchase Price allocable to
principal of all repurchased Defective Mortgage Loans with respect to such
Payment Date; (iv) any Substitution Adjustment allocable to principal received
on or prior to the previous Determination Date and not yet distributed; and
(vi)
any Monthly Advances with respect to scheduled payments of principal due
during
the related Due Period.
“Basic
Documents”: The Trust Agreement, the Certificate of Trust, the Indenture, the
Servicing Agreement, the Mortgage Loan Sale and Contribution Agreement, the
Interest Rate Swap Agreement and the other documents and certificates delivered
in connection with any of the above.
“Basis
Risk Shortfall Amount”: The Group I Basis Risk Shortfall Amount or the Group II
Basis Risk Shortfall Amount, as applicable.
“Beneficial
Owner”: With respect to any Note, the Person who is the beneficial owner of such
Note as reflected on the books of the Depository or on the books of a Person
maintaining an account with such Depository (directly as a Depository
Participant or indirectly through a Depository Participant, in accordance
with
the rules of such Depository).
“BIF”:
The Bank Insurance Fund, as from time to time constituted, created under
the
Financial Institutions Reform, Recovery and Enhancement Act of 1989, or,
if at
any time after the execution of this Agreement the Bank Insurance Fund is
not
existing and performing duties now assigned to it, the body performing such
duties on such date.
“Blanket
Mortgage”: The mortgage or mortgages encumbering a Cooperative
Property.
“Book-Entry
Notes”: Any Offered Note or Class N Note registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of
the
Depository or on the books of a Person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the
rules
of such Depository).
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking
institutions in New York City, the States of Delaware, Florida, Maryland,
Minnesota and New Jersey or any city in which the Corporate Trust Office
of the
Trustee or the Securities Administrator is located are authorized or obligated
by law or executive order to close.
“Certificate
Distribution Account”: The account or accounts created and maintained pursuant
to Section 3.10(c) of the Trust Agreement. The Certificate Distribution Account
shall be an Eligible Account.
“Certificate
Paying Agent”: The meaning specified in Section 3.10 of the Trust
Agreement.
“Certificate
Percentage Interest”: With respect to each Certificate, the Certificate
Percentage Interest stated on the face thereof.
“Certificate
Register”: The register maintained by the Certificate Registrar in which the
Certificate Registrar shall provide for the registration of Certificates
and of
transfers and exchanges of Certificates.
“Certificate
Registrar”: Initially, ▇▇▇▇▇ Fargo Bank, N.A., as Certificate Registrar, or any
successor to ▇▇▇▇▇ Fargo Bank, N.A. in such capacity.
“Certificate
of Trust”: The Certificate of Trust filed for the Trust pursuant to Section
3810(a) of the Statutory Trust Statute.
“Certificates”
or “Trust Certificates”: The Renaissance Home Equity Loan Trust 2006-3 Trust
Certificates, evidencing the beneficial ownership interest in the Issuer
and
executed by the Owner Trustee in substantially the form set forth in Exhibit
A
to the Trust Agreement.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register. Owners of Certificates that have been pledged in good
faith may be regarded as Holders if the pledgee establishes to the satisfaction
of the Indenture Trustee or the Owner Trustee, as the case may be, the pledgee’s
right so to act with respect to such Certificates and that the pledgee is
not
the Issuer, any other obligor upon the Certificates or any Affiliate of any
of
the foregoing Persons.
“Certification”:
As defined in Section 3.13 of the Servicing Agreement.
“Certification
Parties”: The meaning set forth in Section 3.13(a)(iv) of the Servicing
Agreement.
“Certifying
Person”: The meaning set forth in Section 3.13(a)(iv) of the Servicing
Agreement.
“Civil
Relief Act”: The Servicemembers Civil Relief Act and similar state
laws.
“Class”:
All Notes having the same designation.
“Class
AF
Notes”: The Class AF-1 Notes, Class AF-2 Notes, Class AF-3 Notes, Class AF-4
Notes, Class AF-5 Notes and Class AF-6 Notes.
“Class
AF-1 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AF-1 Note.
“Class
AF-2 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AF-2 Note.
“Class
AF-3 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AF-3 Note.
“Class
AF-4 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AF-4 Note.
“Class
AF-5 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AF-5 Note.
“Class
AF-6 Calculation Percentage”: For any Payment Date will be the fraction,
expressed as a percentage, the numerator of which is the Class Note Balance
of
the Class AF-6 Notes, and the denominator of which is the aggregate of the
Class
Note Balances of the Group II Notes, in each case before giving effect to
any
payments in reduction of the Class Note Balances of the Group II Notes pursuant
to Section 3.05 hereof.
“Class
AF-6 Lockout Payment Amount”: For any Payment Date will be an amount equal to
the product of (1) the applicable Class AF-6 Lockout Percentage for that
Payment
Date, (2) the Class AF-6 Calculation Percentage for that Payment Date and
(3)
the Senior Principal Payment Amount for that Payment Date. In no event shall
the
Class AF-6 Lockout Payment Amount exceed the outstanding Class Note Balance
of
the Class AF-6 Notes or the Senior Principal Payment Amount for such Payment
Date.
“Class
AF-6 Lockout Percentage”: For each Payment Date will be as follows:
|
Payment Date
|
Lockout
Percentage
|
|
1st
to
36th
|
0%
|
|
37th
to
60th
|
45%
|
|
61st
to
72nd
|
80%
|
|
73rd
to
84th
|
100%
|
|
85th
and thereafter
|
300%
|
“Class
AF-6 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AF-6 Note.
“Class
AV
Notes”: The Class AV-1 Notes, Class AV-2 Notes and Class AV-3
Notes.
“Class
AV-1 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AV-1 Note.
“Class
AV-2 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AV-2 Note.
“Class
AV-3 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class AV-3 Note.
“Class
Interest Carryover Shortfall”: As to any Class of Offered Notes and any Payment
Date, an amount equal to the sum of (i) the excess of the related Class Monthly
Interest Amount for the preceding Payment Date and any Outstanding Class
Interest Carryover Shortfall with respect to such Class on such preceding
Payment Date, over the amount in respect of interest that is actually paid
to
the Holders of such Class on such preceding Payment Date plus (ii) one month’s
interest on such excess, to the extent permitted by law, at the related Note
Rate.
“Class
Interest Payment”: As to any Class of Offered Notes and Payment Date, an amount
equal to the sum of (a) the related Class Monthly Interest Amount and (b)
any
Class Interest Carryover Shortfall for such Class of Offered Notes for such
Payment Date.
“Class
M
Notes” or “Mezzanine Notes”: 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 and Class M-9 Notes.
“Class
M-1 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-1 Note.
“Class
M-1 Principal Payment Amount: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balance of the Senior Notes has been reduced to zero, 100% of the remaining
Principal Payment Amount, or (y) if a Delinquency Event is not in effect:
the
excess of (1) the sum of (A) the aggregate Class Note Balance of the Senior
Notes (after giving effect to payments of the Senior Principal Payment Amount
for such Payment Date) and (B) the Class Note Balance of the Class M-1 Notes
immediately prior to such Payment Date over (2) the lesser of (A) 75.80%
of the
Pool Balance as of the last day of the related Due Period, minus the
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the related Due Period minus the
OC
Floor.
“Class
M-2 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-2 Note.
“Class
M-2 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and if the aggregate Class
Note
Balances of the Senior and Class M-1 Notes have been reduced to zero, 100%
of
the remaining Principal Payment Amount, or (y) if a Delinquency Event is
not in
effect: the excess of (1) the sum of (A) the aggregate Class Note Balance
of the
Senior Notes (after giving effect to payment of the Senior Principal Payment
Amount for such Payment Date), (B) the Class Note Balance of the Class M-1
Notes
(after giving effect to payment of the Class M-1 Principal Payment Amount
for
such Payment Date) and (C) the Class Note Balance of the Class M-2 Notes
immediately prior to such Payment Date over (2) the lesser of (A) 81.70%
of the
Pool Balance as of the last day of the related Due Period, minus the related
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the related Due Period minus the
OC
Floor.
“Class
M-3 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-3 Note.
“Class
M-3 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1 and Class M-2 Notes have been reduced to
zero,
100% of the remaining Principal Payment Amount, or (y) if a Delinquency Event
is
not in effect: the excess of (1) the sum of (A) the aggregate Class Note
Balance
of the Senior Notes (after giving effect to payment of the Senior Principal
Payment Amount for such Payment Date), (B) the Class Note Balance of the
Class
M-1 Notes (after giving effect to payment of the Class M-1 Principal Payment
Amount for such Payment Date), (C) the Class Note Balance of the Class M-2
Notes
(after giving effect to payment of the Class M-2 Principal Payment Amount
for
such Payment Date) and (D) the Class Note Balance of the Class M-3 Notes
immediately prior to such Payment Date over (2) the lesser of (A) 85.20%
of the
Pool Balance as of the last day of the related Due Period, minus the
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the related Due Period minus the
OC
Floor.
“Class
M-4 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-4 Note.
“Class
M-4 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1, Class M-2 and Class M-3 Notes have been
reduced to zero, 100% of the remaining Principal Payment Amount, or (y) if
a
Delinquency Event is not in effect: the excess of (1) the sum of (A) the
aggregate Class Note Balance of the Senior Notes (after giving effect to
payment
of the Senior Principal Payment Amount for such Payment Date), (B) the Class
Note Balance of the Class M-1 Notes (after giving effect to payment of the
Class
M-1 Principal Payment Amount for such Payment Date), (C) the Class Note Balance
of the Class M-2 Notes (after giving effect to payment of the Class M-2
Principal Payment Amount for such Payment Date), (D) the Class Note Balance
of
the Class M-3 Notes (after giving effect to payment of the Class M-3 Principal
Payment Amount for such Payment Date) and (E) the Class Note Balance of the
Class M-4 Notes immediately prior to such Payment Date over (2) the lesser
of
(A) 88.60% of the Pool Balance as of the last day of the related Due Period,
minus the Subordination Required Overcollateralization Amount for that Payment
Date and (B) the Pool Balance as of the last day of the related Due Period
minus
the OC Floor.
“Class
M-5 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-5 Note.
“Class
M-5 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1, Class M-2, Class M-3 and Class M-4 Notes
have
been reduced to zero, 100% of the remaining Principal Payment Amount, or
(y) if
a Delinquency Event is not in effect: the excess of (1) the sum of (A) the
aggregate Class Note Balance of the Senior Notes (after giving effect to
payment
of the Senior Principal Payment Amount for such Payment Date), (B) the Class
Note Balance of the Class M-1 Notes (after giving effect to payment of the
Class
M-1 Principal Payment Amount for such Payment Date), (C) the Class Note Balance
of the Class M-2 Notes (after giving effect to payment of the Class M-2
Principal Payment Amount for such Payment Date), (D) the Class Note Balance
of
the Class M-3 Notes (after giving effect to payment of the Class M-3 Principal
Payment Amount for such Payment Date), (E) the Class Note Balance of the
Class
M-4 Notes (after giving effect to payment of the Class M-4 Principal Payment
Amount for such Payment Date) and (F) the Class Note Balance of the Class
M-5
Notes immediately prior to such Payment Date over (2) the lesser of (A) 91.50%
of the Pool Balance as of the last day of the related Due Period, minus the
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the related Due Period minus the
OC
Floor.
“Class
M-6 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-6 Note.
“Class
M-6 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1, Class M-2, Class M-3, Class M-4 and Class
M-5
Notes have been reduced to zero, 100% of the remaining Principal Payment
Amount,
or (y) if a Delinquency Event is not in effect: the excess of (1) the sum
of (A)
the aggregate Class Note Balance of the Senior Notes (after giving effect
to
payment of the Senior Principal Payment Amount for such Payment Date), (B)
the
Class Note Balance of the Class M-1 Notes (after giving effect to payment
of the
Class M-1 Principal Payment Amount for such Payment Date), (C) the Class
Note
Balance of the Class M-2 Notes (after giving effect to payment of the Class
M-2
Principal Payment Amount for such Payment Date), (D) the Class Note Balance
of
the Class M-3 Notes (after giving effect to payment of the Class M-3 Principal
Payment Amount for such Payment Date), (E) the Class Note Balance of the
Class
M-4 Notes (after giving effect to payment of the Class M-4 Principal Payment
Amount for such Payment Date), (F) the Class Note Balance of the Class M-5
Notes
(after giving effect to payment of the Class M-5 Principal Payment Amount
for
such Payment Date) and (G) the Class Note Balance of the Class M-6 Notes
immediately prior to such Payment Date over (2) the lesser of (A) 94.00%
of the
Pool Balance as of the last day of the related Due Period, minus the
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the related Due Period minus the
OC
Floor.
“Class
M-7 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-7 Note.
“Class
M-7 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5
and Class M-6 Notes have been reduced to zero, 100% of the remaining Principal
Payment Amount, or (y) if a Delinquency Event is not in effect: the excess
of
(1) the sum of (A) the aggregate Class Note Balance of the Senior Notes (after
giving effect to payments of the Senior Principal Payment Amount for such
Payment Date), (B) the Class Note Balance of the Class M-1 Notes (after giving
effect to payment of the Class M-1 Principal Payment Amount for such Payment
Date), (C) the Class Note Balance of the Class M-2 Notes (after giving effect
to
payment of the Class M-2 Principal Payment Amount for such Payment Date),
(D)
the Class Note Balance of the Class M-3 Notes (after giving effect to payment
of
the Class M-3 Principal Payment Amount for such Payment Date), (E) the Class
Note Balance of the Class M-4 Notes (after giving effect to payment of the
Class
M-4 Principal Payment Amount for such Payment Date), (F) the Class Note Balance
of the Class M-5 Notes (after giving effect to payment of the Class M-5
Principal Payment Amount for such Payment Date), (G) the Class Note Balance
of
the Class M-6 Notes (after giving effect to payment of the Class M-6 Principal
Payment Amount for such Payment Date) and (H) the Class Note Balance of the
Class M-7 Notes immediately prior to such Payment Date over (2) the lesser
of
(A) 96.20% of the Pool Balance as of the last day of the related Due Period,
minus the Subordination Required Overcollateralization Amount for that Payment
Date and (B) the Pool Balance as of the last day of the related Due Period
minus
the OC Floor.
“Class
M-8 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-8 Note.
“Class
M-8 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6 and Class M-7 Notes have been reduced to zero, 100% of the remaining
Principal Payment Amount, or (y) if a Delinquency Event is not in effect:
the
excess of (1) the sum of (A) the aggregate Class Note Balance of the Senior
Notes (after giving effect to payments of the Senior Principal Payment Amount
for such Payment Date), (B) the Class Note Balance of the Class M-1 Notes
(after
giving effect to payment of the Class M-1 Principal Payment Amount for such
Payment Date), (C) the Class Note Balance of the Class M-2 Notes (after giving
effect to payment of the Class M-2 Principal Payment Amount for such Payment
Date), (D) the Class Note Balance of the Class M-3 Notes (after giving effect
to
payment of the Class M-3 Principal Payment Amount for such Payment Date),
(E)
the Class Note Balance of the Class M-4 Notes (after giving effect to payment
of
the Class M-4 Principal Payment Amount for such Payment Date), (F) the Class
Note Balance of the Class M-5 Notes (after giving effect to payment of the
Class
M-5 Principal Payment Amount for such Payment Date), (G) the Class Note Balance
of the Class M-6 Notes (after giving effect to payment of the Class M-6
Principal Payment Amount for such Payment Date), (H) the Class Note Balance
of
the Class M-7 Notes (after giving effect to payment of the Class M-7 Principal
Payment Amount) and (I) the Class Note Balance of the Class M-8 Notes
immediately prior to such Payment Date over (2) the lesser of (A) 98.20%
of the
Pool Balance as of the last day of the related Due Period, minus the
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the related Due Period minus the
OC
Floor.
“Class
M-9 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-1 and designated as
a
Class M-9 Note.
“Class
M-9 Principal Payment Amount”: As to any Payment Date on or after the Stepdown
Date, (x) if a Delinquency Event is in effect and the aggregate Class Note
Balances of the Senior, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7 and Class M-8 Notes have been reduced to zero, 100%
of the
remaining Principal Payment Amount, or (y) if the Senior, Class M-1, Class
M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Notes
are
outstanding and a Delinquency Event is not in effect: the excess of (1) the
sum
of (A) the aggregate Class Note Balance of the Senior Notes (after giving
effect
to payments of the Senior Principal Payment Amount for such Payment Date),
(B)
the Class Note Balance of the Class M-1 Notes (after giving effect to payment
of
the Class M-1 Principal Payment Amount for such Payment Date), (C) the Class
Note Balance of the Class M-2 Notes (after giving effect to payment of the
Class
M-2 Principal Payment Amount for such Payment Date), (D) the Class Note Balance
of the Class M-3 Notes (after giving effect to payment of the Class M-3
Principal Payment Amount for such Payment Date), (E) the Class Note Balance
of
the Class M-4 Notes (after giving effect to payment of the Class M-4 Principal
Payment Amount for such Payment Date), (F) the Class Note Balance of the
Class
M-5 Notes (after giving effect to payment of the Class M-5 Principal Payment
Amount for such Payment Date), (G) the Class Note Balance of the Class M-6
Notes
(after giving effect to payment of the Class M-6 Principal Payment Amount
for
such Payment Date), (H) the Class Note Balance of the Class M-7 Notes (after
giving effect to payment of the Class M-7 Principal Payment Amount), (I)
the
Class Note Balance of the Class M-8 Notes (after giving effect to payment
of the
Class M-8 Principal Payment Amount) and (J) the Class Note Balance of the
Class
M-9 Notes immediately prior to such Payment Date over (2) the lesser of (A)
the
Pool Balance as of the last day of the related Due Period, minus the
Subordination Required Overcollateralization Amount for that Payment Date
and
(B) the Pool Balance as of the last day of the Due Period minus the OC
Floor.
“Class
Monthly Interest Amount”: As to any Payment Date and Class of Offered Notes,
interest for the related Interest Period at the related Note Rate on the
related
Class Note Balance immediately prior to that Payment Date.
“Class
N
Interest Payment Amount”: With respect to the Class N-1 and Class N-2 Notes and
any Payment Date, an amount equal to interest accrued during the related
Interest Period on the related outstanding Class Note Balance at the related
Note Rate, plus all interest accrued for prior Interest Periods but not paid
on
the related Payment Dates or any Payment Dates subsequent thereto (together
with
interest thereon at the related Note Rate).
“Class
N
Interest Shortfall”: With respect to any Payment Date, an amount equal to the
Class N Interest Payment Amount for such Payment Date less Available Funds
remaining after payments pursuant to Section 3.05(b)(i) through Section
3.05(b)(xvi) hereof.
“Class
N-1 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-2 and designated as
a
Class N-1 Note.
“Class
N-2 Note”: Any Note executed and authenticated by the Securities Administrator
substantially in the form attached hereto as Exhibit A-2 and designated as
a
Class N-2 Note.
“Class
N
Principal Payment Amount”: With respect to the Class N Notes and any Payment
Date, the lesser of (i) the related outstanding Class Note Balance immediately
prior to such Payment Date and (ii) any Available Funds remaining after the
payment of the related Class N Interest Payment Amount for such Payment
Date.
“Class
Note Balance”: As of any date of determination and Class of Offered Notes or the
Class N Notes, the Original Class Note Balance for such Class reduced by
the sum
of all amounts previously paid to the Noteholders of such Class in respect
of
principal from the Group I Principal Payment Amount or Group II Principal
Payment Amount, as applicable, on all previous Payment Dates and, in the
case of
any Class of Mezzanine Notes, reduced by any related Applied Realized Loss
Amounts allocated to such Class on prior Payment Dates; provided, however,
if
the context so specifies, the Class Note Balance will also be reduced by
all
payments of principal and allocations of related Applied Realized Loss Amounts
on the Payment Date that is the date of determination.
“Class
Principal Carryover Shortfall”: As to any Class of Mezzanine Notes and any
Payment Date, the excess, if any, of (i) the sum of (x) the amount of the
reduction in the Class Note Balance of that Class of Mezzanine Notes on such
Payment Date and (y) the amount of such reductions contemplated by clause
(x)
above on prior Payment Dates over (ii) the amount distributed in respect
of such
reductions of principal thereof on prior Payment Dates.
“Closing
Date”: September 28, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collateral”:
The meaning specified in the Granting Clause of the Indenture.
“Collection
Account”: The custodial account or accounts created and maintained for the
benefit of the Noteholders pursuant to Section 3.02(b) of the Servicing
Agreement. The Collection Account shall be an Eligible Account.
“Combined
Loan-to-Value Ratio” or “CLTV”: With respect to any Mortgage Loan that is not
secured by a first priority lien on the Mortgaged Property, the sum of the
original principal balance of such Mortgage Loan and the outstanding principal
balance of the related First Lien, if any, as of the date of origination
of the
Mortgage Loan, divided by the Appraised Value.
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: As to any Payment Date, the amount calculated pursuant to Section
3.14 of the Servicing Agreement.
“Cooperative
Corporation”: The entity that holds title (fee or an acceptable leasehold
estate) to the real property and improvements constituting the Cooperative
Property and which governs the Cooperative Property, which Cooperative
Corporation must qualify as a Cooperative Housing Corporation under Section
216
of the Code.
“Cooperative
Loan”: Any Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Property”: The real property and improvements owned by the Cooperative
Corporation, including the allocation of individual dwelling units to the
holders of the Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”: Shares issued by a Cooperative Corporation.
“Cooperative
Unit”: A single-family dwelling located in a Cooperative Property.
“Corporate
Trust Office”: The designated offices of the Securities Administrator at which
at any particular time its corporate trust business with respect to this
Indenture shall be administered, which offices at the date of the execution
of
this Indenture are located for Note transfer purposes at: ▇▇▇▇▇ Fargo Center,
Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention:
Corporate Trust Services—Renaissance HEL Trust 2006-3 and for all other purposes
at: P.O. Box 98, Columbia, Maryland 21046, Attention: Corporate Trust
Services—Renaissance HEL Trust 2006-3 or in the case of overnight deliveries,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Services—Renaissance HEL Trust 2006-3 and which are the respective addresses to
which notices to and correspondence with the Securities Administrator should
be
directed; and the designated office of the Indenture Trustee at which at
any
particular time its corporate trust business with respect to this Indenture
shall be administered, which office at the date of the execution of this
Indenture is located at ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust and Loan
Agency/Renaissance HEL Trust 2006-3,
and which is the address to which notices to and correspondence with the
Indenture Trustee should be directed.
“Cumulative
Loss Event”: For any Payment Date in the applicable period below, if Cumulative
Net Losses exceed the applicable percentage set forth below for the related
Payment Date:
|
Number
of
Payment
Dates
|
Percentages
|
|
25th
-
36th
|
1.05%
for the first month plus an additional 1/12th of 1.35% for each
month
thereafter
|
|
37th
-
48th
|
2.40%
for the first month plus an additional 1/12th of 1.60% for each
month
thereafter
|
|
49th
-
60th
|
4.00%
for the first month plus an additional 1/12th of 1.25% for each
month
thereafter
|
|
61st
-
72nd
|
5.25%
for the first month plus an additional 1/12th of 0.90% for each
month
thereafter
|
|
73rd
-84th
85th
and thereafter
|
6.15%
for the first month plus an additional 1/12th of 0.25% for each
month
thereafter
6.40%
|
“Cumulative
Net Losses”: As of any date of determination, the aggregate of the Liquidation
Loan Losses incurred from the Cut-Off Date through the end of the calendar
month
preceding such date of determination, expressed as a percentage of the related
Cut-Off Date Pool Balance.
“Curtailment”:
With respect to a Mortgage Loan, any payment of principal received during
a Due
Period as part of a payment that is in excess of the amount of the Monthly
Payment due for such Due Period and which is not intended to satisfy the
Mortgage Loan in full or intended to cure a delinquency.
“Custodial
Agreement”: Any Custodial Agreement, as amended and supplemented from time to
time, dated as of the date hereof, by and among the Indenture Trustee, the
Seller, the Servicer, the Depositor, the Master Servicer and the Custodian
substantially in the form set forth as Exhibit E.
“Custodian”:
The Person acting as custodian under a Custodial Agreement from time to time.
As
of the Closing Date, the initial Custodian shall be ▇▇▇▇▇ Fargo Bank,
N.A.
“Cut-Off
Date”: As to any Mortgage Loan, the later of (x) close of business on September
1, 2006 and (y) date of origination of such Mortgage Loan.
“Cut-Off
Date Pool Balance”: The aggregate Cut-Off Date Principal Balance of the Mortgage
Loans (i.e., $824,999,010.80).
“Cut-Off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid principal
balance thereof as of the related Cut-Off Date after giving effect to payments
of principal due on or before the Cut-Off Date (or as of the applicable date
of
substitution with respect to an Eligible Substitute Mortgage Loan).
“Default”:
Any occurrence which is or with notice or the lapse of time or both would
become
an Event of Default.
“Defective
Mortgage Loan”: Any Mortgage Loan subject to repurchase or substitution pursuant
to Section 2.1(f), 3.1 or 3.2 of the Mortgage Loan Sale and Contribution
Agreement.
“Definitive
Notes”: The meaning specified in Section 4.06 of the Indenture.
“Delinquency
Amount”: As to any Payment Date, the aggregate Principal Balance of the Mortgage
Loans that are any of the following: (a) 60 days or more delinquent (including
any such delinquent Mortgage Loans that are in bankruptcy or in foreclosure)
and
(b) REO Properties, in each case, as of the last day of the preceding
month.
“Delinquency
Event”: A Delinquency Event shall be in effect on a Payment Date, if the related
Three Month Delinquency Rate exceeds 43.85% of the Senior Enhancement Percentage
for such Payment Date.
“Deposit
Date”: As to any Payment Date, the Business Day preceding such Payment
Date.
“Depositor”:
Renaissance Mortgage Acceptance Corp., a Delaware corporation, or any successor
thereto.
“Depository”:
The initial Depository shall be The Depository Trust Company, the nominee
of
which is Cede & Co., as the registered Holder of the Notes. The Depository
shall at all times be a “clearing corporation” as defined in Section 8-102(3) of
the UCC of the State of New York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: As to any Payment Date, the fourth Business Day preceding such Payment
Date.
“Due
Date”: As to any Mortgage Loan, the day of the month on which the Monthly
Payment is due from the Mortgagor.
“Due
Period”: With respect to each Payment Date, the period from and including the
second day of the month preceding the month in which such Payment Date occurs
to
and including the first day of the month of such Payment Date.
“Electronic
Ledger”: The electronic master record of home equity mortgage loans maintained
by the Seller.
“Eligible
Account”: A segregated account that is (i) maintained with a depository
institution whose debt obligations at the time of any deposit therein have
the
highest short-term debt rating by the Rating Agencies and whose accounts
are
insured to the maximum extent provided by either the Savings Association
Insurance Fund (“SAIF”) or the Bank Insurance Fund (“BIF”) of the Federal
Deposit Insurance Corporation and which has a minimum long-term unsecured
debt
rating of “A” by S&P and Fitch and “A2” by ▇▇▇▇▇’▇, and which is any of (A)
a federal savings and loan association duly organized, validly existing and
in
good standing under the federal banking laws, (B) an institution duly organized,
validly existing and in good standing under the applicable banking laws of
any
state, (C) a national banking association duly organized, validly existing
and
in good standing under the federal banking laws, (D) a principal subsidiary
of a
bank holding company; (ii) a segregated trust account maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company, having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity; (iii) maintained at ▇▇▇▇▇
Fargo
Bank, N.A., so long as its debt obligations at the time of any deposit therein
have a short-term debt rating of at least “A-1” for S&P, “P-1” for ▇▇▇▇▇’▇
and “F1” for Fitch; or (iv) otherwise acceptable to each Rating Agency as
evidenced by a letter from each Rating Agency to the Securities Administrator,
without reduction or withdrawal of the then current ratings of the
Notes.
“Eligible
Investments”: One or more of the following (excluding any callable investments
purchased at a premium):
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided that such obligations are backed by the full faith and
credit
of the United States;
(ii) repurchase
agreements on obligations specified in clause (i) maturing not more than
three
(3) months from the date of acquisition thereof, provided that the short-term
unsecured debt obligations of the party agreeing to repurchase such obligations
are at the time rated by each Rating Agency in its highest short-term rating
category (which is “A-1+” for S&P, “P-1” for ▇▇▇▇▇’▇ and “F1+” for
Fitch);
(iii) certificates
of deposit, time deposits and bankers’ acceptances of any U.S. depository
institution or trust company incorporated under the laws of the United States
or
any state thereof and subject to supervision and examination by federal and/or
state banking authorities, provided that the unsecured short-term debt
obligations of such depository institution or trust company at the date of
acquisition thereof have been rated by S&P and ▇▇▇▇▇’▇ in their respective
highest unsecured short-term debt rating category;
(iv) commercial
paper (having original maturities of not more than ninety (90) days) of any
corporation incorporated under the laws of the United States or any state
thereof which on the date of acquisition has been rated by each Rating Agency
that rates such securities in their respective highest short term rating
categories;
(v) short
term investment funds (“STIFS”) sponsored by any trust company or national
banking association incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been rated by each Rating
Agency in their respective highest rating category of long term unsecured
debt;
(vi) interests
in any money market fund which at the date of acquisition of the interests
in
such fund including any such fund that is managed by the Indenture Trustee
or
the Securities Administrator or an Affiliate of the Indenture Trustee or
the
Securities Administrator or for which the Indenture Trustee or the Securities
Administrator or an Affiliate of the Indenture Trustee or the Securities
Administrator acts as advisor and throughout the time as the interest is
held in
such fund has a rating of “AAA” by S&P or “Aaa” by ▇▇▇▇▇’▇ ;
and
(vii) other
obligations or securities that are acceptable to each Rating Agency as an
Eligible Investment hereunder and will not result in a reduction in the then
current rating of the Notes, as evidenced by a letter to such effect from
such
Rating Agency and with respect to which the Indenture Trustee and the Securities
Administrator have received confirmation that, for tax purposes, the investment
complies with the last clause of this definition;
provided
that no instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations; provided, further,
that
no instrument described hereunder may be purchased at a price greater than
par
if such instrument may be prepaid or called at a price less than its purchase
price prior to its stated maturity; and provided further, that if S&P is
rating any of the Notes, an instrument described hereunder shall be rated
the
applicable rating of S&P set forth above.
“Eligible
Substitute Mortgage Loan”: A Mortgage Loan substituted by the Seller for a
Defective Mortgage Loan which must, on the date of such substitution: (i)
have
an outstanding Principal Balance after deducting all scheduled principal
payments due in the month of substitution (or in the case of a substitution
of
more than one Mortgage Loan for a Defective Mortgage Loan, an aggregate
Principal Balance), not in excess of and not less than 95% of the Principal
Balance of the Defective Mortgage Loan; (ii) have a Loan Rate not less than
the
Loan Rate of the Defective Mortgage Loan and not more than 1% in excess of
the
Loan Rate of such Defective Mortgage Loan; (iii) if such Defective Mortgage
Loan
is an adjustable-rate Mortgage Loan, have a Loan Rate based on the same Loan
Index with adjustments to such Loan Rate made on the same interval between
Interest Rate Adjustment Dates as that of the Defective Mortgage Loan and
have a
Margin that is not less than the Margin of the Defective Mortgage Loan and
not
more than one hundred (100) basis points higher than the Margin for the
Defective Mortgage Loan; (iv) have a Mortgage of the same or higher level
of
priority as the Mortgage relating to the Defective Mortgage Loan at the time
such Mortgage was transferred to the Trust; (v) have a remaining term to
maturity not more than six (6) months earlier and not later than the remaining
term to maturity of the Defective Mortgage Loan; (vi) comply with each
representation and warranty set forth in the Mortgage Loan Sale and Contribution
Agreement (deemed to be made as of the date of substitution); (vii) have
an
original CLTV not greater than that of the Defective Mortgage Loan; (viii)
if
such Defective Mortgage Loan is an adjustable-rate Mortgage Loan, have a
Lifetime Rate Cap and a Periodic Rate Cap no lower than the Lifetime Rate
Cap
and Periodic Rate Cap, respectively, applicable to such Defective Mortgage
Loan;
(ix) have a credit risk not less than the credit risk of the Defective Mortgage
Loan; and (x) be of the same type of Mortgaged Property as the Defective
Mortgage Loan or a detached single family residence. More than one Eligible
Substitute Mortgage Loan may be substituted for a Defective Mortgage Loan
if
such Eligible Substitute Mortgage Loans meet the foregoing attributes in
the
aggregate.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Repair Loan”: A Mortgage Loan as to which the Servicer holds a portion of the
proceeds in escrow pending repair of the related Mortgaged Property as specified
in the related Mortgage and Mortgage Note.
“Event
of
Default”: With respect to the Indenture, any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) a
failure
by the Issuer to pay (a) with respect to the Offered Notes, (1) the Class
Monthly Interest Amount or the Group I Principal Payment Amount or the Group
II
Principal Payment Amount on any Payment Date, which failure
is not cured within 3 Business Days
or (2)
the Class Interest Carryover Shortfall, but only, with respect to clause
(2), to
the extent funds are available to make such payment as provided in the Indenture
or (b) with respect to the Class N Notes, all interest and principal due
on the
Class N Notes by the Final Stated Maturity Date; or
(ii) the
failure by the Issuer on the Final Stated Maturity Date to reduce the Class
Note
Balance of any of the Notes to zero; or
(iii) there
occurs a default in the observance or performance of any covenant or agreement
of the Issuer made in the Indenture, or any representation or warranty of
the
Issuer made in the Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been incorrect
in any
material respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or condition
in
respect of which such representation or warranty was incorrect shall not
have
been eliminated or otherwise cured, for a period of 30 days after there shall
have been given, by registered or certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Holders of at least
25% of the aggregate Note Balance of the Outstanding Notes, a written notice
specifying such default or incorrect representation or warranty and requiring
it
to be remedied and stating that such notice is a notice of default hereunder;
or
(iv) there
occurs the filing of a decree or order for relief by a court having jurisdiction
in the premises in respect of the Issuer or any substantial part of the Trust
in
an involuntary case under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of
the Issuer or for any substantial part of the Trust, or ordering the winding-up
or liquidation of the Issuer’s affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(v) there
occurs the commencement by the Issuer of a voluntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter
in
effect, or the consent by the Issuer to the entry of an order for relief
in an
involuntary case under any such law, or the consent by the Issuer to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer or for any substantial
part of the assets of the Trust, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of any action by
the
Issuer in furtherance of any of the foregoing; or
(vi) a
failure
of the Trust to be wholly owned by a REIT or a Qualified REIT
Subsidiary.
“Excess
Interest”: As to any Payment Date and the Offered Notes, the Available Funds
remaining after the application of payments pursuant to Section 3.05(b)(iii)(1)
through (12).
“Excess
Overcollateralization Amount”: As to any Payment Date, the lesser of (i) the
Basic Principal Amount for such Payment Date and (ii) the excess, if any,
of (x)
the Overcollateralization Amount (assuming 100% of the Basic Principal Amount
is
paid on the Offered Notes) over (y) the Required Overcollateralization
Amount.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Expenses”:
The meaning specified in Section 7.02 of the Trust Agreement.
“▇▇▇▇▇▇
▇▇▇”: ▇▇▇▇▇▇ ▇▇▇, formerly known as the Federal National Mortgage Association,
or any successor thereto.
“FDIC”:
The Federal Deposit Insurance Corporation or any successor thereto.
“Final
Stated Maturity Date”: The Payment Date in November 2036.
“First
Lien”: With respect to any Mortgage Loan which is a second priority lien, the
mortgage loan relating to the corresponding Mortgaged Property having a first
priority lien.
“Fitch”:
Fitch Ratings, or its successor in interest
“Fixed
Rate Notes”: The Class AF and Class M Notes.
“Fixed
Swap Payment”: With respect to any Payment Date, a fixed amount equal to the
product of (i) the Strike Rate, (ii) the Notional Amount (as defined in the
Interest Rate Swap Agreement) for that Payment Date, and (iii) a fraction,
the
numerator of which is 30 (or, for the first Payment Date, the number of days
elapsed from and including the effective date (as defined in the Interest
Rate
Swap Agreement) to but excluding the first Payment Date, determined on a
30/360
basis) and the denominator of which is 360.
“Floating
Swap Payment”: With respect to any Payment Date, a floating amount equal to the
product of (i) Swap LIBOR, (ii) the Notional Amount (as defined in the Interest
Rate Swap Agreement) for that Payment Date, and (iii) a fraction, the numerator
of which is the actual number of days in the related calculation period and
the
denominator of which is 360.
“Foreclosure
Profits”: With respect to a Liquidated Mortgage Loan, the amount, if any, by
which (i) the aggregate of its Net Liquidation Proceeds exceeds (ii) the
related
Principal Balance (plus accrued and unpaid interest thereon at the applicable
Loan Rate from the date interest was last paid (or advanced and not reimbursed)
through the date of receipt of the final Liquidation Proceeds) of such
Liquidated Mortgage Loan immediately prior to the final recovery of its
Liquidation Proceeds.
“Form
8-K
Disclosure Information”: The meaning set forth in Section 3.13(a)(iii) of the
Servicing Agreement.
“Freddie
Mac”: Freddie Mac (also known as the Federal Home Loan Mortgage
Corporation).
“Free
Writing Prospectus”: The
free
writing prospectus supplement, dated September 7, 2006, relating to the public
offering of the Offered Notes.
“GAAP”:
United States generally accepted accounting principles as in effect from
time to
time, consistently applied.
“Grant”:
Pledge, bargain, sell, warrant, alienate, remise, release, convey, assign,
transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security interest in and right
of
set-off against, deposit, set over and confirm pursuant to the Indenture.
A
Grant of the Collateral or of any other agreement or instrument shall include
all rights, powers and options (but none of the obligations) of the granting
party thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect
of such collateral or other agreement or instrument and all other moneys
payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the granting party or otherwise, and generally
to do
and receive anything that the granting party is or may be entitled to do
or
receive thereunder or with respect thereto.
“Group
I
Available Funds Rate”: As to any Payment Date and the Group I Notes, a rate per
annum (adjusted for the actual number of days in the related Interest Period)
equal to the product of (x) a fraction, expressed as a percentage, the numerator
of which is the amount of interest received on the Group I Mortgage Loans
during
the related Due Period minus (i) the sum of the servicing fees and master
servicing fees with respect to each Group I Mortgage Loan and any other amounts
reimbursable to the Seller, Depositor, Servicer, Master Servicer, Securities
Administrator, Owner Trustee or Indenture Trustee and (ii) an amount equal
to
any Net Swap Payment and Swap Termination Payment, if any, payable by the
Trust
(other than Swap Termination Payments resulting from a Swap Provider Trigger
Event), and the denominator of which is the aggregate Note Balance of the
Group
I Notes immediately prior to such Payment Date, and (y) 12.
“Group
I
Basis Risk Shortfall Amount”: As to any Payment Date and each class of Group I
Notes, the sum of (a) the excess, if any, of the related Class Monthly Interest
Amount, calculated at the lesser of (i) the sum of one-month LIBOR and the
applicable note margin and (ii) 14.00% over the related Class Monthly Interest
Amount for the applicable Payment Date; (b) any Group I Basis Risk Shortfall
Amount remaining unpaid from the prior Payment Date; and (c) accrued interest
on
the amount in clause (b) calculated at the lesser of clause (a)(i) or (a)(ii)
herein for the most recently ended interest Period.
“Group
I
Notes”: Class AV Notes.
“Group
I
Parity Amount”: For any Payment Date, the greater of (i) zero and (ii) the
excess, if any, of (x) the aggregate Class Note Balance of the Group I Notes
immediately prior to such Payment Date over (y) the aggregate Principal Balance
of the Group I Mortgage Loans as of the last day of the related Due
Period.
“Group
I
Principal Payment Amount”: With respect to any Payment Date, the lesser of (A)
the greatest of (1) the product of (x) the Senior Principal Payment Amount
for
such Payment Date and (y) a fraction, the numerator of which is the excess
of
(i) the aggregate Principal Balance of the Group I Mortgage Loans as of the
first day of the related Due Period over (ii) the aggregate Principal Balance
of
the Group I Mortgage Loans as of the last day of the related Due Period,
and the
denominator of which is the excess of (i) the Pool Balance as of the first
day
of the related Due Period over (ii) the Pool Balance as of the last day of
the
related Due Period, (2) the Group I Parity Amount and (3) the excess of (i)
the
Senior Principal Payment Amount for such Payment Date over (ii) the aggregate
Class Note Balance of the Group II Notes immediately prior to such Payment
Date
and (B) the aggregate Class Note Balance of the Group I Notes immediately
prior
to such Payment Date.
“Group
II
Notes”: The Class AF Notes.
“Group
II
Principal Payment Amount”: With respect to any Payment Date, the excess of (1)
the Senior Principal Payment Amount for such Payment Date and (2) the Group
I
Principal Payment Amount for such Payment Date.
“High
Cost Home Loan”: A Mortgage Loan classified as (a) a “high cost” loan under the
Home Ownership and Equity Protection Act of 1994, (b) a “high cost,”
“threshold,” “covered,” “predatory” or similar loan under any other applicable
state, federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high interest rates,
points and/or fees) or (c) a “High Cost Loan” or “Covered Loan” as defined in
the current S&P LEVELS® Glossary.
“Indemnified
Party”: The meaning specified in Section 7.02 of the Trust
Agreement.
“Indenture”:
The indenture dated as of September 28, 2006, among the Issuer, the Indenture
Trustee and the Securities Administrator, relating to the Renaissance Home
Equity Loan Trust 2006-3, Home Equity Loan Asset-Backed Notes, Series
2006-3.
“Indenture
Trustee”: HSBC Bank USA, National Association, and its successors and assigns or
any successor indenture trustee appointed pursuant to the terms of the
Indenture.
“Independent”:
When used with respect to any specified Person, the Person (i) is in fact
independent of the Issuer, any other obligor on the Notes, the Seller, the
Servicer, the Master Servicer, the Depositor and any Affiliate of any of
the
foregoing Persons, (ii) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
the
Seller, the Servicer, the Master Servicer, the Depositor or any Affiliate
of any
of the foregoing Persons and (iii) is not connected with the Issuer, any
such
other obligor, the Seller, the Servicer, the Master Servicer, the Depositor
or
any Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
“Independent
Certificate”: A certificate or opinion to be delivered to the Indenture Trustee
under the circumstances described in, and otherwise complying with, the
applicable requirements of Section 10.01 of the Indenture, made by an
independent appraiser or other expert appointed by an Issuer Request, and
such
opinion or certificate shall state that the signer has read the definition
of
“Independent” in this Indenture and that the signer is Independent within the
meaning thereof.
“Initial
Deposit”: $989.20.
“Initial
Note Balance”: As set forth in Section 2.02 of the Indenture.
“Insurance
Proceeds”: Proceeds paid by any insurer pursuant to any insurance policy
covering a Mortgage Loan or Mortgaged Property, or amounts required to be
paid
by the Servicer pursuant to Section 3.05 of the Servicing Agreement, net
of any
component thereof (i) covering any expenses incurred by or on behalf of the
Servicer in connection with obtaining such proceeds, (ii) applied to the
restoration or repair of the related Mortgaged Property, (iii) released to
the
Mortgagor in accordance with the Servicer’s normal servicing procedures or (iv)
required to be paid to any holder of a mortgage senior to such Mortgage
Loan.
“Interest
Period”: With respect to the Adjustable Rate Notes, the period from the
preceding Payment Date (or in the case of the first Payment Date, from the
Closing Date) through the day preceding the applicable Payment Date, calculated
on the basis of a 360-day year and the actual number of days in the applicable
Interest Period. With respect to the Fixed Rate Notes and any Payment Date,
the
calendar month preceding the month in which such Payment Date occurs, which
such
calendar month shall be deemed to have 30 days.
With
respect to the Class N Notes and any Payment Date other than the Payment
Date in
October 2006, the period from and including the
Payment Date occurring in the
immediately
preceding
month
and
ending on the day
immediately preceding such Payment Date.
With
respect to the Class
N
Notes
and the
Payment Date in October
2006, the period from and including the Closing Date and ending on October
24,
2006.
Notwithstanding
the foregoing, each Interest Period for the Class N Notes will be calculated
on
the basis of a 360-day year comprised of twelve 30-day months, and, after
the
first Interest Period, will be deemed to be 30 days, regardless of its actual
length.
“Interest
Rate Adjustment Date”: With respect to each adjustable-rate Mortgage Loan, the
date or dates on which the Loan Rate is subject to adjustment in accordance
with
the related Mortgage Note.
“Interest
Rate Swap Agreement”: The 1992 ISDA Master Agreement (Multicurrency-Cross
Border) dated as of September 28, 2006 (together with the schedule thereto,
the
Master Agreement) between the Swap Provider and the Trust and a confirmation
of
the same date, which supplements and forms part of the Master
Agreement.
“Investment
Company Act”: The Investment Company Act of 1940, as amended, and any amendments
thereto.
“IRS”:
The Internal Revenue Service.
“Issuer”:
Renaissance Home Equity Loan Trust 2006-3, a Delaware statutory trust, or
its
successor in interest.
“Issuer
Request”: A written order or request signed in the name of the Issuer by any one
of its Authorized Officers and delivered to the Indenture Trustee.
“LIBOR
Business Day”: Any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions in the State of New York or in the city of London,
England are required or authorized by law to be closed.
“Lien”:
Any mortgage, deed of trust, pledge, conveyance, hypothecation, assignment,
participation, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC (other
than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing; provided,
however, that any assignment pursuant to Section 5.04 of the Servicing Agreement
shall not be deemed to constitute a Lien.
“Lifetime
Rate Cap”: With respect to each adjustable-rate Mortgage Loan, the maximum Loan
Rate permitted over the life of such Mortgage Loan, as provided by the terms
of
the related Mortgage Note.
“Liquidated
Mortgage Loan”: As to any Payment Date, a Mortgage Loan with respect to which
the Servicer has determined, in accordance with the servicing procedures
specified herein as of the end of the preceding related Prepayment Period,
that
all Liquidation Proceeds which it expects to recover with respect to such
Mortgage Loan (including the disposition of the related REO Property) have
been
received.
“Liquidation
Loan Losses”: For each Liquidated Mortgage Loan the amount, if any, by which the
Principal Balance thereof plus accrued and unpaid interest thereon is in
excess
of the Net Liquidation Proceeds realized with respect thereto.
“Liquidation
Proceeds”: Proceeds (including Insurance Proceeds) received in connection with
the liquidation of any Mortgage Loan or related REO Property, whether through
trustee’s sale, foreclosure sale or otherwise, other than Subsequent
Recoveries.
“Loan
Group”: Either Loan Group I or Loan Group II.
“Loan
Group I”: The Mortgage Loans identified on the Mortgage Loan Schedule as being
part of Loan Group I.
“Loan
Group II”: The Mortgage Loans identified on the Mortgage Loan Schedule as being
part of Loan Group II.
“Loan
Index”: With respect to each Interest Rate Adjustment Date for each
adjustable-rate Mortgage Loan that is identified on the Mortgage Loan Schedule
as having a LIBOR Loan Index, the average of the interbank offered rate for
six-month U.S. dollar denominated deposits in the London Market, as determined
according to the terms of the related Note.
“Loan
Rate”: With respect to any Mortgage Loan as of any day, the per annum rate of
interest applicable under the related Mortgage Note to the calculation of
interest for such day on the Principal Balance.
“Maintenance”:
With respect to any Cooperative Unit, the rent paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
“Majority
Certificateholder”: A Holder of a 50.01% or greater Certificate Percentage
Interest of the Certificates.
“Margin”:
As to any adjustable-rate Mortgage Loan, the percentage set forth as the
“Margin” for such Mortgage Loan on the Mortgage Loan Schedule.
“Master
Servicer”: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association or any
successor thereto or any successor under the Servicing Agreement.
“Master
Servicer Event of Default”: As defined in Section 6.03 of the Servicing
Agreement.
“Master
Servicing Fee”: As to each Payment Date and each Mortgage Loan, the monthly fee
payable to the Master Servicer, which is calculated as an amount equal to
the
product of one-twelfth of the Master Servicing Fee Rate and the Principal
Balance thereof at the beginning of the related Due Period.
“Master
Servicing Fee Rate”: For any Payment Date, 0.0150% per annum.
“Master
Servicing Officer”: Any officer of the Master Servicer involved in, or
responsible for, the administration and master servicing of the Mortgage
Loans
whose name and specimen signature appear on a list of master servicing officers
furnished to the Indenture Trustee and the Securities Administrator by the
Master Servicer, as such list may be amended from time to time.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”: Any Mortgage Loan registered with MERS on the MERS
System.
“MERS®
System”: The system of recording transfers of mortgages electronically
maintained by MERS.
“Mezzanine
Notes”: The Class M Notes.
“MIN”:
The Mortgage Identification Number for any MERS Mortgage Loan.
“MOM
Loan”: Any Mortgage Loan as to which MERS is acting as mortgagee, solely as
nominee for the originator of such Mortgage Loan and its successors and
assigns.
“Monthly
Advance”: An advance made by the Servicer or the Master Servicer pursuant to
Section 3.15 or Section 4.13 of the Servicing Agreement,
respectively.
“Monthly
Payment”: The scheduled monthly payment of principal and/or interest required to
be made by a Mortgagor on the related Mortgage Loan.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on an estate in fee simple interest in real property securing a Mortgage
Loan.
“Mortgage
File”: The mortgage documents listed in Section 2.1 of the Mortgage Loan Sale
and Contribution Agreement pertaining to a particular Mortgage Loan and any
additional documents required to be added to the Mortgage File pursuant to
the
Mortgage Loan Sale and Contribution Agreement.
“Mortgage
Loan Sale and Contribution Agreement”: The mortgage loan sale and contribution
agreement, dated September 28, 2006, between the Seller and the
Depositor.
“Mortgage
Loan Schedule”: With respect to any date, the schedule of Mortgage Loans
constituting assets of the Trust, which on the Closing Date shall be the
schedule set forth herein as Exhibit B, which schedule sets forth as to each
Mortgage Loan: (i) the Cut-Off Date Principal Balance, (ii) the account number,
(iii) the original principal amount, (iv) the CLTV as of the date of the
origination of the related Mortgage Loan, (v) the Due Date, (vi) the Loan
Rate
as of the Cut-Off Date, (vii) the first date on which a Monthly Payment is
or
was due under the Mortgage Note, (viii) the original stated maturity date
of the
Mortgage Note and if the Mortgage Loan is a Balloon Loan, the amortization
terms, (ix) the remaining number of months to maturity as of the Cut-Off
Date,
(x) the state in which the related Mortgaged Property is situated, (xi) the
type
of property, (xii) the lien status, (xiii) whether the Mortgage Loan is a
MERS
Mortgage Loan and, if so, its corresponding MIN, (xiv) the applicable Loan
Group
and (xv) with respect to each adjustable-rate Mortgage Loan, (a) the Periodic
Rate Cap, (b) the Margin, (c) the Lifetime Rate Cap and (d) the next Interest
Rate Adjustment Date after the Cut-Off Date. The Seller shall indicate to
the
Indenture Trustee, Master Servicer and Securities Administrator which Mortgage
Loans, if any, are Cooperative Loans. The Mortgage Loan Schedule will be
amended
by the Seller from time to time to reflect the substitution of an Eligible
Substitute Mortgage Loan for a Defective Mortgage Loan from time to time
hereunder.
“Mortgage
Loans”: The mortgage loans that are transferred and assigned to the Indenture
Trustee, on behalf of the Trust, on the Closing Date, together with the Related
Documents, and are held by the Custodian on behalf of the Indenture Trustee
as a
part of the Trust, exclusive of Mortgage Loans that are transferred to the
Seller or the Servicer, as the case may be, from time to time pursuant to
Section 2.1(f) or 3.2 of the Mortgage Loan Sale and Contribution Agreement
or
Section 3.16 of the Servicing Agreement, such mortgage loans originally so
held
being identified in the Mortgage Loan Schedule, set forth on Exhibit B hereto,
delivered on the Closing Date.
“Mortgage
Note”: With respect to a Mortgage Loan, the note pursuant to which the related
mortgagor agrees to pay the indebtedness evidenced thereby which is secured
by
the related Mortgage.
“Mortgaged
Property”: The underlying property, including real property and improvements
thereon, securing a Mortgage Loan, which, with respect to a Cooperative Loan,
is
the related Cooperative Shares and Proprietary Lease.
“Mortgagor”:
The obligor or obligors under a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan, Liquidation
Proceeds, net of unreimbursed Servicing Fees, Master Servicing Fees, Servicing
Advances and Monthly Advances with respect thereto.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case
of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Ninety
Day Delinquency Rate”: As to any Payment Date, the percentage equivalent of a
fraction, the numerator of which is the aggregate Principal Balances of (a)
Mortgage Loans that are ninety (90) or more days delinquent as of the last
day
of the related Prepayment Period, (b) all REO Property and (c) Mortgage Loans
in
foreclosure or in bankruptcy and the denominator of which is the Pool Balance
as
of the last day of the related Due Period.
“Nonrecoverable
Advances”: With respect to any Mortgage Loan, (i) any Servicing Advance or
Monthly Advance previously made and not reimbursed pursuant to Section 3.03(ii)
or Section 4.13 of the Servicing Agreement or (ii) a Servicing Advance or
Monthly Advance proposed to be made in respect of a Mortgage Loan or REO
Property which, in the good faith business judgment of the Servicer or the
Master Servicer, as applicable, as evidenced by an Officer’s Certificate
delivered to the Seller, the Master Servicer, the Securities Administrator
and
the Indenture Trustee no later than the Business Day following such
determination, would not be ultimately recoverable pursuant to Section 3.03(ii)
or Section 4.13 of the Servicing Agreement.
“Note”:
Any Offered Note or Class N Note.
“Note
Balance”: As of any date of determination, the aggregate Class Note Balance of
the Offered Notes or the Class N Notes, as applicable.
“Note
Group”: Either the Group I or the Group II Notes.
“Note
Index”: The rate for one month United States dollar deposits quoted on Telerate
Page 3750 as of 11:00 A.M., London time, on the second LIBOR Business Day
prior
to the first day of any Interest Period relating to the Adjustable Rate Notes.
“Telerate Page 3750” means the display designated as page 3750 on Bridge
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
If
such rate does not appear on such page or such other page as may replace
that
page on that service (or if such service is no longer offered, such other
service for displaying LIBOR or comparable rates as may be reasonably selected
by the Securities Administrator after consultation with the Seller), the
rate
will be the Reference Bank Rate. If no such quotations can be obtained and
no
Reference Bank Rate is available, the Note Index will be the Note Index
applicable to the preceding Payment Date. On the second LIBOR Business Day
immediately preceding each Payment Date, the Securities Administrator shall
determine the Note Index for the Interest Period commencing on such Payment
Date
and inform the Seller and the Servicer of such rate.
“Note
Margin”: As to any Adjustable Rate Note, the respective amount set forth
below:
|
Class
|
Note
Margin
|
|
|
(1)
|
(2)
|
|
|
Class
AV-1
|
0.060%
|
0.120%
|
|
Class
AV-2
|
0.150%
|
0.300%
|
|
Class
AV-3
|
0.240%
|
0.480%
|
__________
(1) On
or
before the Optional Redemption Date.
(2) After
the
Optional Redemption Date.
“Note
Owner”: The Person who is the beneficial owner of a Book-Entry
Note.
“Note
Rate”: The Note Rate for any Interest Period with respect to the Adjustable-Rate
Notes, will equal the lesser of (a) the sum of the Note Index and the Note
Margin, (b) 14.00%, and (c) the Group
I
Available Funds Rate.
The
Note Rate for any Interest Period with respect to the Fixed-Rate Notes, will
equal the applicable fixed interest rate listed in the table below.
As
to any
Class of Fixed-Rate Notes, the respective per annum rate set forth or described
below:
|
Class
|
Rate
|
|
Class
AF-1
|
5.917%
per annum(1)
|
|
Class
AF-2
|
5.580%
per annum(1)
|
|
Class
AF-3
|
5.586%
per annum(1)
|
|
Class
AF-4
|
5.812%
per annum(1)
|
|
Class
AF-5
|
6.120%
per annum(1)
|
|
Class
AF-6
|
5.731%
per annum(1)
|
|
Class
M-1
|
6.019%
per annum(1)
|
|
Class
M-2
|
6.068%
per annum(1)
|
|
Class
M-3
|
6.118%
per annum(1)
|
|
Class
M-4
|
6.217%
per annum(1)
|
|
Class
M-5
|
6.266%
per annum(1)
|
|
Class
M-6
|
6.484%
per annum(1)
|
|
Class
M-7
|
6.959%
per annum(1)
|
|
Class
M-8
|
7.157%
per annum(1)
|
|
Class
M-9
|
7.500%
per annum(1)
|
|
Class
N-1
|
6.413%
per annum(1)
|
|
Class
N-2
|
7.385%
per annum(1)
|
|
_________________
|
(1)
As
to (i)
any Payment Date on or before the Optional Redemption Date, the fixed rate
of
interest shown above and (ii) any Payment Date after the Optional Redemption
Date, the sum of the fixed interest rate shown above and 0.50%.
“Note
Register and Note Registrar”: The register maintained and the registrar
appointed pursuant to Section 4.02.
“Noteholder
or Holder”: The Person in whose name a Note is registered in the Note Register,
except that, solely for the purpose of giving any consent, direction, waiver
or
request pursuant to this Indenture, (x) any Note registered in the name of
the
Seller or the Depositor or any Person known to a Responsible Officer to be
an
Affiliate of the Seller or the Depositor and (y) any Note for which the Seller
or the Depositor or any Person known to a Responsible Officer to be an Affiliate
of the Seller or the Depositor is the Note Owner or Holder shall be deemed
not
to be outstanding (unless to the knowledge of a Responsible Officer (i) the
Seller or such Affiliate is acting as trustee or nominee for a Person who
is not
an Affiliate of such Seller or the Depositor and who makes the voting decision
with respect to such Notes or (ii) the Seller or the Depositor or such Affiliate
is the Note Owner or Holder of all the Notes of a Class, but only with respect
to the Class as to which the Seller or the Depositor or such Affiliate owns
all
the Notes) and the Percentage Interest evidenced thereby shall not be taken
into
account in determining whether the requisite amount of Percentage Interests
necessary to effect any such consent, direction, waiver or request has been
obtained.
“OC
Floor”: An amount equal to 0.50% of the Cut-Off Date Pool Balance.
“Offered
Notes”: The Senior Notes and the Mezzanine Notes.
“Officer’s
Certificate”: A certificate signed by the President, an Executive Vice
President, a Senior Vice President, a First Vice President, a Vice President,
Assistant Vice President, the Treasurer, Assistant Treasurer, Assistant
Secretary, Controller or Assistant Controller of the Servicer or the Master
Servicer and delivered to the Indenture Trustee, the Master Servicer, the
Securities Administrator or the Custodian. With respect to the Issuer, a
certificate signed by any Authorized Officer of the Issuer.
“Opinion
of Counsel”: A written opinion of counsel reasonably acceptable to the Indenture
Trustee and the Securities Administrator, who may be in-house counsel for
the
Servicer, the Master Servicer, the Depositor or the Seller and who, in the
case
of opinions delivered to each Rating Agency, is reasonably acceptable to
it.
“Optional
Redemption Date”: The Payment Date following the Due Period at the end of which
the Pool Balance is less than 10% of the Cut-Off Date Pool Balance.
“Originator”:
Delta Funding Corporation, a New York corporation, or any successor
thereto.
“Outstanding”:
With respect to the Notes, as of the date of determination, all Notes
theretofore executed, authenticated and delivered under this Indenture
except:
(i) Notes
theretofore canceled by the Note Registrar or delivered to the Securities
Administrator for cancellation; and
(ii) Notes
in
exchange for or in lieu of which other Notes have been executed, authenticated
and delivered pursuant to the Indenture unless proof satisfactory to the
Securities Administrator is presented that any such Notes are held by a holder
in due course;
“Outstanding
Class Interest Carryover Shortfall”: As to any Class of Offered Notes and any
Payment Date, the amount of Class Interest Carryover Shortfall for such Payment
Date.
“Overcollateralization
Amount”: As to any Payment Date, the excess, if any, of (i) the Pool Balance as
of the end of the related Due Period over (ii) the aggregate Class Note Balance
of the Offered Notes after giving effect to the payment of the Principal
Payment
Amount on such Payment Date.
“Ownership
Interest”: As to any Note or security interest in such Note, including any
interest in such Note as the Holder thereof and any other interest therein,
whether direct or indirect, legal or beneficial, as owner or as
pledgee.
“Owner
Trust”: The corpus of the Issuer created by the Trust Agreement which consists
of items referred to in Section 3.01 of the Trust Agreement.
“Owner
Trustee”: Wilmington Trust Company, acting not in its individual capacity but
solely as Owner Trustee, and its successors and assigns or any successor
owner
trustee appointed pursuant to the terms of the Trust Agreement.
“Paying
Agent”: Any paying agent appointed pursuant to Section 3.03 of the
Indenture.
“Payment
Account”: The account established and maintained by the Securities Administrator
pursuant to Section 3.01. The Payment Account shall be an Eligible
Account.
“Payment
Date”: The 25th
day of
each month, or, if such day is not a Business Day, then the next Business
Day,
beginning in October 2006.
“Percentage
Interest”: With respect to any Note, the percentage obtained by dividing the
Class Note Balance of such Note by the aggregate Class Note Balances of all
Notes of that Class. With respect to any Note, the percentage as stated on
the
face thereof.
“Periodic
Rate Cap”: With respect to each adjustable-rate Mortgage Loan with respect to
which the related Mortgage Note provides for a periodic rate cap, the maximum
percentage increase or decrease in the Loan Rate permitted for such Mortgage
Loan over the Loan Rate in effect as of an Interest Rate Adjustment Date,
as set
forth on the Mortgage Loan Schedule.
“Person”:
Any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or
any
agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Plan
Assets”: Assets of a Plan within the meaning of Department of Labor regulation
29 C.F.R. § 2510.3-101.
“Pool
Balance”: With respect to any date of determination, the aggregate Principal
Balance of the Mortgage Loans as of the applicable date.
“Prepayment
Charge”: As to a Mortgage Loan, any charge to be paid by a Mortgagor in
connection with certain partial prepayments and all prepayments in full made
during the related Prepayment Charge Period, the Prepayment Charges with
respect
to each applicable Mortgage Loan so held by the Trust being identified in
the
Prepayment Charge Schedule (other than any Prepayment Charge Payment
Amount).
“Prepayment
Charge Payment Amount”: The amounts payable by the Seller or the Servicer, as
the case may be, pursuant to Section 3.1 of the Mortgage Loan Sale and
Contribution Agreement and Section 3.21 of the Servicing Agreement.
“Prepayment
Charge Period”: As to any Mortgage Loan, the period of time, if any, during
which a Prepayment Charge may be imposed.
“Prepayment
Charge Schedule”: As of any date, the list of Mortgage Loans subject to
Prepayment Charges included in the Trust on such date, attached hereto as
Exhibit B (including the prepayment charge summary attached thereto). The
Prepayment Charge Schedule shall set forth the following information with
respect to each such Mortgage Loan subject to a Prepayment Charge:
(i) the
Mortgage Loan account number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
first
date on which a Monthly Payment is or was due under the related Mortgage
Note;
(iv) the
original term of the Prepayment Charge;
(v) the
Cut-Off Date Principal Balance of the related Mortgage Loan; and
(vi) the
remaining term of the Prepayment Charge.
The
Prepayment Charge Schedule shall be amended by the Seller and delivered to
the
Indenture Trustee, the Securities Administrator, the Master Servicer and
the
Servicer from time to time in accordance with the provisions of the Mortgage
Loan Sale and Contribution Agreement, and the Indenture Trustee, the Securities
Administrator, the Master Servicer and the Servicer shall have no responsibility
to recalculate or otherwise review the information set forth
therein.
“Prepayment
Interest Shortfall”: With respect to any Payment Date, for each Mortgage Loan
that was the subject during the related Prepayment Period of a voluntary
Principal Prepayment (other than Principal Prepayments in full that occur
during
the portion of the related Prepayment Period that is in the same calendar
month
as the Payment Date), an amount equal to the excess, if any, of (i) 30 days
of
accrued interest on the Principal Balance of such Mortgage Loan at the Loan
Rate
(or at such lower rate as may be in effect for such Mortgage Loan pursuant
to
application of the Civil Relief Act), net of the Servicing Fee Rate (which
shall
constitute payment of the Servicing Fee with respect to such Mortgage Loan),
with respect to the Servicer’s obligation in respect of any Prepayment Interest
Shortfall and net of the Master Servicing Fee Rate (which shall constitute
payment of the Master Servicing Fee with respect to such Mortgage Loan),
with
respect to the Master Servicer’s obligation in respect of any Prepayment
Interest Shortfall, over (ii) the amount of interest actually remitted by
the
Mortgagor in connection with such Principal Prepayment.
“Prepayment
Period”: With respect to any Payment Date and any Principal Prepayment in full,
the period from the 16th
day of
the calendar month preceding the month in which such Payment Date occurs
(or in
the case of the first Payment Date, from the related Cut-off Date) through
the
15th
day of
the month in which such Payment Date occurs. With respect to any Payment
Date
and any Curtailment, the calendar month preceding such Payment
Date.
“Principal
Balance”: With respect to any date and as to any Mortgage Loan, other than a
Liquidated Mortgage Loan, the related Cut-Off Date Principal Balance, minus
all
collections credited against the Cut-Off Date Principal Balance of such Mortgage
Loan, as of such date. For purposes of this definition, a Liquidated Mortgage
Loan shall be deemed to have a Principal Balance equal to the Principal Balance
of the related Mortgage Loan immediately prior to the final recovery of related
Liquidation Proceeds and a Principal Balance of zero thereafter.
“Principal
Payment Amount”: With respect to any Payment Date, the lesser of (1) the
aggregate Class Note Balance of the Offered Notes immediately preceding such
Payment Date and (2) the sum of (x) the Aggregate Principal Amount for such
Payment Date minus the Excess Overcollateralization Amount, if any, for such
Payment Date and (y) the Subordination Increase Amount, if any, for such
Payment
Date. On the first Payment Date, the Principal Payment Amount will also include
the Initial Deposit.
“Principal
Prepayment”: Any payment or other recovery of principal on a Mortgage Loan equal
to the outstanding principal balance thereof, received in advance of the
final
scheduled Due Date which is intended to satisfy a Mortgage Loan in full (without
regard to any Prepayment Charge that may have been collected by the Servicer
in
connection with such payment of principal).
“Proceeding”:
Any suit in equity, action at law or other judicial or administrative
proceeding.
“Proprietary
Lease”: With respect to any Cooperative Unit, a lease or occupancy agreement
between a Cooperative Corporation and a holder of related Cooperative
Shares.
“Prospectus”:
The base prospectus of the Depositor dated September 7, 2006.
“Prospectus
Supplement”: The prospectus supplement dated September 8, 2006 relating to the
offering of the Offered Notes.
“Purchase
Price”: As to any Mortgage Loan repurchased on any date pursuant to Section
2.1(f) or 3.1 of the Mortgage Loan Sale and Contribution Agreement or Section
3.16 of the Servicing Agreement, an amount equal to the sum of (i) the unpaid
Principal Balance thereof, (ii) the greater of (a) all unpaid accrued interest
thereon to the end of the Due Period preceding the Payment Date on which
such
Purchase Price is included in Available Funds and (b) thirty (30) days’ interest
thereon, computed at the applicable Loan Rate; provided, however, that if
the
purchaser is the Servicer, the amount described in clause (ii) shall be computed
at the Loan Rate net of the Servicing Fee Rate (which shall constitute payment
of the Servicing Fee with respect to such Mortgage Loan), (iii) if the purchaser
is the Seller, (x) any unreimbursed Servicing Advances with respect to such
Mortgage Loan and (y) expenses reasonably incurred or to be incurred by the
Servicer, the Master Servicer, the Securities Administrator, the Trust or
the
Indenture Trustee in respect of the breach or defect giving rise to the purchase
obligation, including costs due to any violations of any predatory or abusive
lending law and (iv) the amount of any penalties, fines, forfeitures, legal
fees
and related costs, judgments and any other costs, fees and expenses incurred
by
or imposed on the Indenture Trustee, the Servicer, the Master Servicer, the
Securities Administrator or the Trust or with respect to which any of them
are
liable arising from a breach by the Seller of its representations and warranties
in the Mortgage Loan Sale and Contribution Agreement.
“Qualified
REIT Subsidiary”: A qualified REIT subsidiary within the meaning of Section
856(i)(2) of the Code.
“Rating
Agency”: Initially ▇▇▇▇▇’▇, S&P and Fitch, and their successors and assigns.
If such agency or a successor is no longer in existence, “Rating Agency” shall
include such other statistical credit rating agency, or other comparable
Person,
designated by the Depositor, notice of which designation shall be given to
the
Indenture Trustee and the Securities Administrator. References herein to
the
highest short term unsecured rating category of a Rating Agency shall mean
“A-1”
or better in the case of S&P and “P-1” or better in the case of ▇▇▇▇▇’▇.
References herein to the highest long-term rating category of a Rating Agency
shall mean “AAA” in the case of S&P and “Aaa” in the case of
▇▇▇▇▇’▇.
“Recognition
Agreement”: With respect to any Cooperative Loan, an agreement between the
Cooperative Corporation and the originator of such Mortgage Loan, which
establishes the rights of such originator in the Cooperative
Property.
“Record
Date”: As to the Fixed Rate Notes and any Payment Date, the last Business Day
of
the month immediately preceding the month in which the related Payment Date
occurs. As to the Adjustable Rate Notes and Class N Notes and any Payment
Date,
the Business Day preceding such Payment Date (except in the case of the first
Payment Date, for which the Record Date shall be the Closing Date); provided,
however, that if the Adjustable Rate Notes or the Class N Notes are no longer
Book-Entry Notes, the “Record Date” shall be the last Business Day of the month
immediately preceding the month in which the related Payment Date
occurs.
“Redemption
Price”: As defined in Section 8.07 of the Indenture.
“Reference
Bank Rate”: As to any Interest Period relating to the Adjustable Rate Notes as
follows: the arithmetic mean (rounded upwards, if necessary, to the nearest
one
sixteenth of a percent) of the offered rates for United States dollar deposits
for one month which are offered by the Reference Banks as of 11:00 A.M.,
London
time, on the second LIBOR Business Day prior to the first day of such Interest
Period to prime banks in the London interbank market for a period of one
month
in amounts approximately equal to the aggregate Class Note Balance of the
Adjustable Rate Notes; provided that at least two such Reference Banks provide
such rate. If fewer than two offered rates appear, the Reference Bank Rate
will
be the arithmetic mean of the rates quoted by one or more major banks in
New
York City, selected by the Securities Administrator after consultation with
the
Seller, as of 11:00 A.M., New York City time, on such date for loans in U.S.
Dollars to leading European Banks for a period of one month in amounts
approximately equal to the aggregate Class Note Balance of the Adjustable
Rate
Notes. If no such quotations can be obtained, the Reference Bank Rate shall
be
the Reference Bank Rate applicable to the preceding Interest
Period.
“Reference
Banks”: Three major banks that are engaged in the London interbank market,
selected by the Seller after consultation with the Securities
Administrator.
“Registered
Holder”: The Person in whose name a Note is registered in the Note Register on
the applicable Record Date.
“Regulation
AB”: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”: The meaning specified in Section 4.06(b).
“Related
Documents”: With respect to each Mortgage Loan, the documents specified in
Section 2.1(b) of the Mortgage Loan Sale and Contribution Agreement and any
documents required to be added to such documents pursuant to the Mortgage
Loan
Sale and Contribution Agreement, the Trust Agreement, Indenture or the Servicing
Agreement.
“Released
Mortgaged Property Proceeds”: As to any Mortgage Loan, proceeds received by the
Servicer in connection with (a) a taking of an entire Mortgaged Property
by
exercise of the power of eminent domain or condemnation or (b) any release
of
part of the Mortgaged Property from the lien of the related Mortgage, whether
by
partial condemnation, sale or otherwise, which are not released to the Mortgagor
in accordance with applicable law and mortgage servicing standards the Servicer
would use in servicing mortgage loans for its own account and the Servicing
Agreement.
“Relevant
Servicing Criteria”: The Servicing Criteria applicable to the various parties,
as set forth on Exhibit J to the Servicing Agreement. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to a Servicing Function Participant engaged
by
the Servicer, the Master Servicer, the Securities Administrator, the Trustee,
and the Custodian, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
“REO
Property”: A Mortgaged Property that is acquired by the Servicer or the Master
Servicer on behalf of the Trust in foreclosure or by deed in lieu of
foreclosure.
“Reportable
Event”: The meaning set forth in Section 3.13(a)(iii) of the Servicing
Agreement.
“Reporting
Servicer”: As set forth in Section 3.13(a)(iv) of the Servicing
Agreement.
“Required
Overcollateralization Amount”: With respect to any Payment Date (a) prior to the
Stepdown Date, the product of (x) 3.00% and (y) the Cut-Off Date Pool Balance
and (b) on and after the Stepdown Date, the greater of (1) the lesser of
(x) the
product of 3.00% and the Cut-Off Date Pool Balance and (y) the product of
6.00%
and the Pool Balance as of the end of the related Due Period and (2) the
OC
Floor.
Notwithstanding
the foregoing, on each Payment Date during the continuance of (a) a Delinquency
Event (whether or not a Cumulative Loss Event is continuing), the Required
Overcollateralization Amount will equal the Required Overcollateralization
Amount in effect as of the immediately preceding Payment Date or (b) a
Cumulative Loss Event (and a Delinquency Event is not then continuing), the
Required Overcollateralization Amount will equal the lesser of (x) the Required
Overcollateralization Amount in effect as of the immediately preceding Payment
Date and (y) the product of 12.00% and the Pool Balance as of the end of
the
related Due Period; but the Required Overcollateralization Amount will never
be
less than the OC Floor.
“Residential
Dwelling”: A one- to five-family dwelling, a five- to eight-family dwelling, a
mixed use property, a unit in a planned unit development, a unit in a
condominium development, a townhouse, a unit in a cooperative or a mobile
home
treated as real property under local law.
“Responsible
Officer”: When used with respect to the Securities Administrator, any officer
assigned to the corporate trust group (or any successor thereto), including
any
executive vice president, senior vice president, first vice president, vice
president, assistant vice president, controller, assistant controller, trust
officer, any assistant secretary, any trust officer or any other officer
of the
Trustee customarily performing functions similar to those performed by any
of
the above designated officers and having direct responsibility for the
administration of this Agreement. When used with respect to the Indenture
Trustee, any officer in the Corporate Trust Office with direct responsibility
for the administration of the Basic Documents. When used with respect to
the
Depositor, the Seller, the Master Servicer or Servicer, the President or
any
Vice President, Assistant Vice President or any Secretary or Assistant
Secretary.
“Restricted
Global Security”: The meaning specified in Section 4.06(b).
“Rule
144A”: Rule 144A under the 1933 Act.
“S&P”:
Standard & Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“SAIF”:
The Savings Association Insurance Fund, as from time to time constituted,
created under the Financial Institutions Reform, Recovery and Enhancement
Act of
1989, or, if at any time after the execution of this Agreement the Savings
Association Insurance Fund is not existing and performing duties now assigned
to
it, the body performing such duties on such date.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof
by the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”: A written certification signed by an officer of the Master
Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and (ii) Exchange
Act
Rules 13a-14(d) and 15d-14(d), as in effect from time to time; provided that
if,
after the Closing Date (a) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act is amended, (b) the Rules
referred to in clause (ii) are modified or superseded by any subsequent
statement, rule or regulation of the Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published
by the
Commission from time to time pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, which in
any
such case affects the form or substance of the required certification and
results in the required certification being, in the reasonable judgment of
the
Master Servicer, materially more onerous that then form of the required
certification as of the Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification shall
be
as agreed to by the Master Servicer and the Depositor following a negotiation
in
good faith to determine how to comply with any such new
requirements.
“Securities
Act”: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association or any
successor thereto or any successor hereunder.
“Securities
Administrator Information”: As defined in Section 3.13 of the Servicing
Agreement.
“Security
Agreement”: With respect to any Cooperative Loan, the agreement between the
owner of the related Cooperative Shares and the originator of the related
Mortgage Note, which defines the terms of the security interest in such
Cooperative Shares and the related Proprietary Lease.
“Seller”:
Renaissance REIT Investment Corp.
“Senior
Note”: Any Class AV Note or Class AF Note.
“Senior
Noteholder”: The Holder of a Senior Note.
“Senior
Enhancement Percentage”: As to any Payment Date, the percentage equivalent of a
fraction, the numerator of which is the sum of (i) the aggregate Class Note
Balances of the Mezzanine Notes and (ii) the Overcollateralization Amount
(in
each case, on the prior Payment Date) and the denominator of which is the
Pool
Balance as of the last day of the prior Due Period.
“Senior
Principal Payment Amount”: With respect to (a) any Payment Date prior to the
Stepdown Date or during the continuation of a Delinquency Event, the lesser
of
(1) 100% of the Principal Payment Amount and (2) the aggregate Class Note
Balance of the Senior Notes immediately prior to such Payment Date, and (b)
any
other Payment Date, an amount equal to the lesser of (1) the Principal Payment
Amount and (2) the excess, if any, of (x) the aggregate Class Note Balance
of
the Senior Notes immediately prior to the applicable Payment Date over (y)
the
lesser of (A) 69.50% of the Pool Balance as of the last day of the related
Due
Period minus the Subordination Required Overcollateralization Amount for
such
Payment Date and (B) the Pool Balance as of the last day of the related Due
Period minus the OC Floor.
“Servicer”:
Ocwen Loan Servicing, LLC, or any successor thereto or any successor
hereunder.
“Servicer
Event of Default”: As defined in Section 6.01 of the Servicing
Agreement.
“Servicer
Information”: As defined in Section 3.13 of the Servicing
Agreement.
“Servicer
Reimbursement Amount”: As defined in Section 3.20 of the Servicing
Agreement.
“Servicer
Termination Test”: The Servicer Termination Test is failed if either (x)
Cumulative Net Losses for the Mortgage Loans exceed 5.10% of the aggregate
Original Class Note Balance of the Offered Notes or (y) the most recent Three
Month 90-Day Delinquency Rate exceeds 30%.
“Servicing
Advances”: All reasonable and customary “out of pocket” costs and expenses
incurred prior to, on or after the Cut-Off Date in the performance by the
Servicer of its servicing obligations under the Servicing Agreement, including,
but not limited to, the cost of (i) the preservation, restoration and protection
of the Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures and any litigation related to a Mortgage Loan, (iii)
the
management and liquidation of the REO Property, including reasonable fees
paid
to any independent contractor in connection therewith, (iv) compliance with
the
obligations under Section 3.04, 3.06 or 3.19 of the Servicing Agreement,
(v) in
connection with the liquidation of a Mortgage Loan, expenditures relating
to the
purchase or maintenance of the First Lien pursuant to Section 3.17 of the
Servicing Agreement, all of which reasonable and customary out-of-pocket
costs
and expenses are reimbursable to the Servicer to the extent provided in Sections
3.03(ii) and (vi) and 3.06 of the Servicing Agreement and (vi) correcting
any
outstanding title issues (i.e., any lien or encumbrance on the Mortgaged
Property that prevents the effective enforcement of the intended lien position)
not customarily processed internally by servicers in the servicing industry
reasonably necessary for the Servicer to perform its obligations under the
Servicing Agreement.
“Servicing
Agreement”: The Servicing Agreement dated as of September 28, 2006, among the
Master Servicer, the Servicer, the Issuer, the Indenture Trustee and the
Securities Administrator.
“Servicing
Certificate”: A certificate completed and executed by a Servicing Officer on
behalf of the Servicer.
“Servicing
Compensation”: The Servicing Fee and other amounts to which the Servicer is
entitled pursuant to Section 3.08 of the Servicing Agreement.
“Servicing
Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation
AB, as such may be amended from time to time.
“Servicing
Fee”: As to each Payment Date and each Mortgage Loan, the monthly fee payable
to
the Servicer, which is calculated as an amount equal to the product of
one-twelfth of the Servicing Fee Rate and the Principal Balance thereof at
the
beginning of the related Due Period.
“Servicing
Fee Rate”: For any Payment Date, 0.50% per annum, which shall not exceed 0.50%
per annum upon the Optional Redemption of the Notes and shall survive the
termination of the Servicing Agreement.
“Servicing
Function Participant”: Any Sub-Servicer, Subcontractor or any other Person,
other than the Servicer, the Master Servicer, the Trustee, the Custodian
and the
Securities Administrator, that is determined to be “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, without
regard to any threshold referenced therein.
“Servicing
Officer”: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and specimen
signature appear on a list of servicing officers furnished to the Indenture
Trustee, the Master Servicer and the Securities Administrator by the Servicer,
as such list may be amended from time to time.
“Servicing
Rights Owner”: The Servicer or an Affiliate of the Servicer that has acquired or
may acquire ownership of the servicing rights associated with the servicing
rights and obligations under the Servicing Agreement.
“Servicing
Rights Pledgee”: As defined in Section 5.04 of the Servicing
Agreement.
“Servicing
Transfer Costs”: All reasonable costs and expenses incurred by the Successor
Servicer or the Successor Master Servicer in connection with the transfer
of
servicing from a predecessor Servicer or the transfer of master servicing
from
the predecessor Master Servicer, as applicable, including, without limitation,
any reasonable costs or expenses associated with the complete transfer of
all
electronic servicing data and the completion, correction or manipulation
of such
electronic servicing data as may be required by the successor to correct
any
errors or insufficiencies in the servicing data or otherwise to enable the
successor to service or master service, as applicable, the Mortgage Loans
properly and effectively.
“Significance
Percentage”: The percentage equivalent of a fraction, the numerator of which is
the net present value of the estimated future amounts payable under the Interest
Rate Swap Agreement and the denominator of which is the aggregate Certificate
Principal Balance of the Class A and Mezzanine Notes on such Distribution
Date
(after giving effect to all distributions on such Payment Date), in each
case as
determined pursuant to the Interest Rate Swap Agreement.
“Sixty
Day Delinquency Rate”: As to any Payment Date, the percentage equivalent of a
fraction, the numerator of which is the aggregate Principal Balance of (a)
Mortgage Loans that are 60 or more days delinquent, (b) Mortgage Loans that
are
60 or more days delinquent and in bankruptcy or foreclosure and (c) all REO
Property, in each case, as of the last day of the preceding month, and the
denominator of which is the Pool Balance as of the last day of the related
Due
Period.
“Statutory
Trust Statute”: Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code §§3801
et seq., as the same may be amended from time to time.
“Stepdown
Date”: The earlier to occur of (x) the first Payment Date after the Payment Date
on which the aggregate Class Note Balance of the Senior Notes is reduced
to zero
and (y) the later to occur of (A) the Payment Date in October 2009 and (B)
the
first Payment Date on which the Senior Enhancement Percentage (calculated
for
this purpose only after taking into account payments of principal on the
mortgage loans, but prior to payment of the Principal Payment Amount to the
Offered Notes then entitled to payments of principal on such Payment Date),
is
at least equal to 36.50%.
“Stepped
Fixed Rate Loan”: A Mortgage Loan having a fixed rate throughout its term, and a
thirty year maturity without a balloon payments that is comprised of a fixed
monthly payment based on a forty-year amortization during the first ten years
of
such Mortgage Loan’s term and a fixed monthly payment based on a twenty year
amortization during the next twenty years of such Mortgage Loan’s
term.
“Strike
Rate”: 5.1775% per annum.
“Subcontractor”:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of the Servicer (or a Sub-Servicer of the Servicer),
the Master Servicer, the Trustee, the Custodian or the Securities
Administrator.
“Subordination
Deficiency”: As to any Payment Date, the excess, if any, of (i) the Required
Overcollateralization Amount for such Payment Date over (ii) the
Overcollateralization Amount for such Payment Date after giving effect to
the
payment of the Aggregate Principal Amount on such Payment Date.
“Subordination
Increase Amount”: As to any Payment Date, the lesser of (i) the Subordination
Deficiency and (ii) the Excess Interest.
“Subordination
Required Overcollateralization Amount”: As to any Payment Date on which a
Delinquency Event does not exist, the Required Overcollateralization Amount
without giving effect to the OC Floor calculation. As to any other Payment
Date,
the Required Overcollateralization Amount.
“Subsequent
Recovery”: With respect to any Liquidated Mortgage Loan, an amount received in
respect of principal on such Mortgage Loan which has previously been allocated
as an Applied Realized Loss Amount to a Class or Classes of Notes net of
reimburseable expenses.
“Subservicer”:
Any Person that services Mortgage Loans on behalf of the Servicer, and is
responsible for the performance (whether directly or through sub-servicers
or
Subcontractors) of servicing functions required to be performed under this
Agreement, the Servicing Agreement or any sub-servicing agreement that are
identified in Item 1122(d) of Regulation AB.
“Subservicing
Agreement”: Any agreement between the Servicer and any Subservicer relating to
subservicing and/or administration of certain Mortgage Loans as provided
in
Section 3.01(b) of the Servicing Agreement, a copy of which shall be delivered,
along with any modifications thereto, to the Indenture Trustee, the Master
Servicer and the Securities Administrator.
“Substitution
Adjustment”: As to any date on which a substitution occurs pursuant to Section
3.2 of the Mortgage Loan Sale and Contribution Agreement, the sum of (a)
the
excess of (i) the aggregate Principal Balances of all Defective Mortgage
Loans
to be replaced by Eligible Substitute Mortgage Loans (after application of
principal payments received on or before the date of substitution of any
Eligible Substitute Mortgage Loans as of the date of substitution) over (ii)
the
Principal Balance of such Eligible Substitute Mortgage Loans and (b) the
greater
of (x) accrued and unpaid interest on such excess through the Due Period
relating to the Payment Date for which such Substitution Adjustment will
be
included as part of Available Funds and (y) thirty (30) days’ interest on such
excess calculated on a 360-day year in each case at the Loan Rate and (c)
the
amount of any unreimbursed Servicing Advances made by the Servicer with respect
to such Defective Mortgage Loan and (d) the amount referred to in clause
(iv) of
the definition of Purchase Price in respect of such Defective Mortgage
Loan.
“Successor
Servicer”: As defined in Section 6.02 of the Servicing Agreement.
“Successor
Master Servicer”: As defined in Section 6.04 of the Servicing
Agreement.
“Swap
LIBOR”: A per annum rate equal to the floating rate payable by the Swap Provider
under the Interest Rate Swap Agreement.
“Swap
Provider”: Bank of America, N.A.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate
Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined
in the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Three
Month Delinquency Rate”: As to any Payment Date the arithmetic average of the
Sixty Day Delinquency Rates for the related Payment Date and the two immediately
preceding Payment Dates.
“Three
Month 90-Day Delinquency Rate”: As to any Payment Date, the arithmetic average
of the Ninety Day Delinquency Rates for the related Payment Date and the
two
immediately preceding Payment Dates.
“Trust”:
The Renaissance Home Equity Loan Trust 2006-3.
“Trust
Agreement”: The Trust Agreement, dated as of September 27, 2006, between the
Owner Trustee and the Depositor together with the Amended and Restated Trust
Agreement dated as of September 28, 2006, among the Owner Trustee, the Depositor
and ▇▇▇▇▇ Fargo Bank, N.A., as Certificate Registrar and Certificate Paying
Agent, relating to the Trust.
“Trust
Indenture Act” or “TIA”: The Trust Indenture Act of 1939, as amended from time
to time, as in effect on any relevant date.
“UCC”:
The Uniform Commercial Code, as amended from time to time, as in effect in
any
specified jurisdiction.
“Underwriters”:
▇.▇. ▇▇▇▇▇▇ Securities Inc., Greenwich Capital Markets, Inc., Banc of America
Securities LLC and Citigroup Global Markets Inc., or their
successors.