STANDARD PROVISIONS INDENTURE
by and between
CRSM MORTGAGE SECURITIES TRUST NO. ___
and
BANK
Dated as of _________ , 1998
CRSM Mortgage Securities Collateralized Bonds Series No. 1
____% CLASS 1-A and CLASS 1-R
TABLE OF CONTENTS
ARTICLE ONE: DEFINITIONS 1
Section 1.01. DEFINITIONS. 1
ARTICLE TWO: BOND FORM 26
Section 2.01. FORMS GENERALLY. 26
Section 2.02. FORM OF BOND. 27
ARTICLE THREE: THE BONDS 27
Section 3.01. AMOUNT UNLIMITED; BONDS ISSUABLE IN SERIES AND
CLASSES; CERTAIN RELATED PROVISIONS. 27
Section 3.02. DENOMINATIONS. 31
Section 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. 31
Section 3.04. TEMPORARY BONDS. 31
Section 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. 32
Section 3.06. MUTILATED, DESTROYED, LOST OR STOLEN BONDS. 35
Section 3.07. PAYMENT OF PRINCIPAL AND INTEREST; PRINCIPAL AND
INTEREST RIGHTS PRESERVED. 36
Section 3.08. PERSONS DEEMED OWNERS. 38
Section 3.09. CANCELLATION. 39
Section 3.10. LIMITED RIGHT TO SUBSTITUTE COLLATERAL 39
ARTICLE FOUR: AUTHENTICATION AND DELIVERY OF BONDS 42
Section 4.01. GENERAL PROVISIONS. 42
Section 4.02. SECURITY FOR BONDS. 48
ARTICLE FIVE: SATISFACTION AND DISCHARGE 54
Section 5.01. SATISFACTION AND DISCHARGE OF INDENTURE. 54
Section 5.02. APPLICATION OF TRUST MONEY. 55
ARTICLE SIX: 55
Section 6.01. EVENTS OF DEFAULT. 55
Section 6.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. 57
Section 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. 58
Section 6.04. REMEDIES. 60
Section 6.06. TRUSTEE MAY FILE PROOFS OF CLAIM. 61
Section 6.07. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
BONDS. 62
Section 6.08. APPLICATION OF MONEY COLLECTED. 63
Section 6.09. LIMITATION ON SUITS. 64
Section 6.10. UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. 65
Section 6.11. RESTORATION OF RIGHTS AND REMEDIES. 65
Section 6.12. RIGHTS AND REMEDIES CUMULATIVE. 65
Section 6.13. DELAY OR OMISSION NOT WAIVER. 65
Section 6.14. CONTROL BY BONDHOLDERS. 66
Section 6.15. WAIVER OF PAST DEFAULTS. 66
Section 6.16. UNDERTAKING FOR COSTS. 67
Section 6.17. WAIVER OF STAY OR EXTENSION LAWS. 67
Section 6.18. SALE OF TRUST ESTATE. 67
Section 6.19. ACTION ON BONDS. 68
ARTICLE SEVEN: THE TRUSTEE 68
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. 69
Section 7.02. NOTICE OF DEFAULT. 70
Section 7.03. CERTAIN RIGHTS OF TRUSTEE. 71
Section 7.05. MAY HOLD BONDS. 73
Section 7.06. MONEY HELD IN TRUST. 74
Section 7.07. COMPENSATION AND REIMBURSEMENT. 74
Section 7.08. DISQUALIFICATION; CONFLICTING INTERESTS. 75
Section 7.09. Corporate Trustee Required; Eligibility. 81
Section 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. 81
Section 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. 83
Section 7.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. 84
Section 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. 84
Section 7.14. CO-TRUSTEES AND SEPARATE TRUSTEES. 84
ARTICLE EIGHT: BONDHOLDERS' LISTS AND REPORTS
BY TRUSTEE AND ISSUER 86
Section 8.01. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
BONDHOLDERS. 86
Section 8.02. PRESERVATION OF INFORMATION; COMMUNICATION TO
BONDHOLDERS. 86
Section 8.03. REPORTS BY TRUSTEE. 88
Section 8.04. REPORTS BY ISSUER. 89
ARTICLE NINE: COVENANTS OF ISSUER 90
Section 9.01. PAYMENT OF PRINCIPAL AND INTEREST. 90
Section 9.02. MAINTENANCE OF OFFICE OR AGENCY. 91
Section 9.03. MONEY FOR BOND PAYMENTS TO BE HELD IN TRUST. 91
Section 9.04. CORPORATE EXISTENCE. 93
Section 9.05. TRUST EXISTENCE 93
Section 9.06. PROTECTION OF TRUST ESTATE. 94
Section 9.07. OPINIONS AS TO TRUST ESTATE. 94
Section 9.08. PERFORMANCE OF OBLIGATIONS;
BACK-UP SERVICING AGREEMENT. 95
Section 9.09. NEGATIVE COVENANTS. 96
Section 9.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. 97
Section 9.11. SUCCESSOR SUBSTITUTED. 98
Section 9.12. STATEMENT AS TO COMPLIANCE. 98
Section 9.13. NOTIFICATION OF RATING AGENCIES. 99
ARTICLE TEN: SUPPLEMENTAL INDENTURES 99
Section 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
BONDHOLDERS. 99
Section 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
BONDHOLDERS. 101
Section 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES 103
Section 10.04. EFFECT OF SUPPLEMENTAL INDENTURE. 103
Section 10.05. CONFORMITY WITH TRUST INDENTURE ACT. 103
Section 10.06. REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES. 103
ARTICLE ELEVEN: REDEMPTION OF BONDS 103
Section 11.01. REDEMPTION AT THE OPTION OF THE ISSUER; ELECTION TO
REDEEM. 104
Section 11.02. SPECIAL REDEMPTION. 104
Section 11.03. REDEMPTION AT THE OPTION OF BONDHOLDERS. 105
Section 11.04. NOTICE TO TRUSTEE 105
Section 11.05. NOTICE OF REDEMPTION OR SPECIAL REDEMPTION BY THE
ISSUER. 105
Section 11.06. DEPOSIT OF REDEMPTION PRICE OR SPECIAL REDEMPTION
PRICE. 106
Section 11.07. BONDS PAYABLE ON REDEMPTION DATE OR SPECIAL
REDEMPTION DATE. 106
ARTICLE TWELVE: ACCOUNTS, ACCOUNTING AND RELEASES 107
Section 12.01. COLLECTION OF MONEY. 107
Section 12.02. SUPPLEMENTAL DEBT SERVICE FUND. 108
Section 12.03. BUY-DOWN FUND. 110
Section 12.04. OVERCOLLATERALIZATION FUND. 112
Section 12.05. OTHER FUNDS. 114
Section 12.06. RESERVE FUND. 116
Section 12.07. COLLECTION ACCOUNT. 117
Section 12.08. SUPPLEMENTAL CUSTODIAL RESERVE FUND. 118
Section 12.09. PREPAYMENT RESERVE ACCOUNT. 119
Section 12.10. REPORTS BY TRUSTEE. 120
Section 12.11. ACCOUNTING. 120
Section 12.12. TRUST ESTATE. 125
Section 12.13. RELEASES OF PLEDGED LOANS WITHDRAWN BY SERVICER. 127
Section 12.14. DELIVERY OF THE LOAN DOCUMENTS PURSUANT TO BACK-UP
SERVICING AGREEMENT. 127
Section 12.15. RECORDS.
128
Section 12.16. COLLECTIONS ON THE PLEDGED LOANS. 128
Section 12.17. AMENDMENTS TO BACK-UP SERVICING AGREEMENT. 129
Section 12.18. TERMINATION OF SERVICING AGREEMENTS.
129
Section 12.19. OPINION OF COUNSEL. 129
Section 12.20. INVESTMENTS. 130
ARTICLE THIRTEEN: APPLICATION OF MONEYS 130
Section 13.01. DISBURSEMENTS OF MONEYS FROM COLLECTION ACCOUNT. 130
Section 13.02. DISBURSEMENT OF MONEYS FROM PREPAYMENT ACCOUNT 131
Section 13.03. DISBURSEMENT OF MONEYS FROM SUPPLEMENTAL CUSTODIAL
RESERVE FUND. 131
Section 13.04. TRUST ACCOUNT. 131
Section 13.05. DISBURSEMENTS OF EXCESS FUNDS; RELEASE OF
COLLATERAL. 132
ARTICLE FOURTEEN: BONDHOLDER'S MEETINGS 132
Section 14.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. 132
Section 14.02. MANNER OF CALLING MEETINGS. 133
Section 14.03. CALL OF MEETING BY ISSUER OR BONDHOLDERS. 133
Section 14.04. WHO MAY ATTEND AND VOTE AT MEETINGS. 133
Section 14.05. REGULATIONS MAY BE MADE BY TRUSTEE. 134
Section 14.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT. 135
Section 14.07. EXERCISE OF RIGHTS OF TRUSTEE AND BONDHOLDERS NOT
TO BE HINDERED OR DELAYED. 135
ARTICLE FIFTEEN: MISCELLANEOUS 135
Section 15.01. COMPLIANCE CERTIFICATES AND OPINIONS. 135
Section 15.02. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. 136
Section 15.03. ACTS OF BONDHOLDERS. 137
Section 15.04. NOTICES,ETC., TO TRUSTEE AND ISSUER. 138
Section 15.05. NOTICE TO BONDHOLDERS; WAIVER. 138
Section 15.06. CONFLICT WITH TRUST INDENTURE ACT. 139
Section 15.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS. 139
Section 15.08. SUCCESSORS AND ASSIGNS. 139
Section 15.09. SEPARABILITY. 139
Section 15.10. BENEFITS OF STANDARD PROVISIONS INDENTURE. 139
Section 15.11. LEGAL HOLIDAYS. 139
Section 15.12. GOVERNING LAW. 140
Section 15.13. COUNTERPARTS. 140
Cross-reference sheets showing the location in the Indenture of the provisions
inserted pursuant to Section 310 through 318(a) inclusive of the Trust Indenture
Act of 1939, as amended.
TIA Indenture Section
Section 310 (a)(1)................... 7.9
(a)(2)....................... 7.9
(a)(3)....................... Not Applicable
(a)(4)....................... Not Applicable
(b).......................... 7.8, 7.10
Section 311 (a)...................... 7.13
(b).......................... 7.13
(c).......................... Not Applicable
Section 312 (a)...................... 8.1
8.2(a)
(b).......................... 8.2(b)
(c).......................... 8.2(c)
Section 313 (a)...................... 8.3(a)
(b).......................... 8.3(b)
(c).......................... 8.3(a)
8.3(b)
(d).......................... 8.3(c)
Section 314 (a)...................... 8.4
(b).......................... 9.6
(c)(1)....................... 15.1
(c)(2)....................... 15.1
(c)(3)....................... Not Applicable
(d).......................... 4.1, 12.12
(e).......................... 15.1
Section 315 (a)...................... 7.1(a)
7.1(c)
(b).......................... 7.2
(c).......................... 7.1(b)
(d)(1)....................... 7.1(c)(1)
(d)(2)....................... 7.1(c)(2)
(d)(3)....................... 7.1(c)(3)
(e).......................... 6.16
Section 316 (a)...................... 1.1
a)(1)(A)..................... 6.2
6.14
(a)(1)(B).................... 6.15
(a)(2)....................... Not Applicable
(b).......................... 6.10
Section 317 (a)(1)................... 6.3
(a)(2)....................... 6.6
(b).......................... 9.3
Section 318 (a)...................... 15.6
Note: This cross-reference sheet shall not, for any purpose, be deemed to
constitute a part of the Indenture.
STANDARD PROVISIONS INDENTURE, dated as of _________ , 1998, between CRSM
Mortgage Securities Trust No. ___, a Delaware business trust (the
"Issuer") created under a deposit trust agreement dated as of _________ ,
1998, between CRSM Securities, Inc., a California corporation (the
"Depositor") and Wilmington Trust Company (the "Owner-Trustee") (the
"Deposit Trust Agreement"), and BANK N.A, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor may establish a trust (the "Trust") for the purpose of
causing such Trust to issue a series of Bonds. Such series of Bonds will
be issued under an Indenture consisting of a Terms Indenture which
incorporates by reference the Standard Provisions Indenture
(collectively, the Standard Provisions Indenture and the Terms Indenture
for such Series of Bonds are referred to as the "Indenture"), and such
series of Bonds will be limited to the amount therein prescribed. The
Terms Indenture will be duly executed and delivered by the Trust
executing the same, acting through an Owner-Trustee, and by the Trustee
under the Indenture.
ARTICLE ONE: DEFINITIONS
Section 1.01. DEFINITIONS.
Except as otherwise specified herein or in a Terms Indenture or as the
context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Standard Provisions
Indenture, and the definitions of such terms are equally applicable both
to the singular and plural forms of such terms and to the masculine,
feminine and neuter genders of such terms. All other terms used herein
which are defined in the Trust Indenture Act, as hereinafter defined,
either directly or by reference therein, have the meanings assigned to
them herein.
"ACCOUNTING REPORT": The report setting forth certain information
required by Section 12.11(b).
"ACCRETED VALUE": With respect to any Series, the original principal
amount of any Class of Compound Interest Bonds plus all accrued and
accumulated interest thereon compounded at the Bond Interest Rate for
such Class of such Series on each Payment Date for such Series and with
respect to any calculation on a date other than a Payment Date, the
Accreted Value as of the immediately preceding Payment Date or (if prior
to the first Payment Date) the original principal amount of such Class of
Compound Interest Bonds. The principal amount of any Compound Interest
Bonds at any time will be equal to their Accreted Value. Accreted Value
will be reduced by any payments of principal on such Class of Compound
Interest Bonds.
"ACCRUAL DATE": With respect to any Series, the date upon which interest
begins accruing on the Bonds of such Series, as specified in such Bonds
and the related Terms Indenture.
"ACCRUAL DISTRIBUTION AMOUNT": With respect to any Payment Date for a
Series, the aggregate amount of interest which has accrued on the
Compound Interest Bonds of such Series since the immediately preceding
Payment Date for such Series which is not then required to be paid,
payment of which having been deferred as provided herein.
"ACT" and "ACTS OF BONDHOLDERS": The meanings specified in Section 15.03.
"AFFILIATE" OF ANY SPECIFIED PERSON: Any other Person controlling or
controlled by or under common control with such specified Person. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"AGGREGATE INITIAL BOND VALUE": With respect to any Series, the sum of
the Initial Bond Values of all Mortgage Collateral securing such Series.
"AGGREGATE INITIAL COLLATERAL VALUE": With respect to any Series, the sum
of the Initial Collateral Values of all Mortgage Collateral securing such
Series.
"AGGREGATE INITIAL OVERCOLLATERALIZATION AMOUNT": With respect to any
Series, the excess of the Aggregate Initial Collateral Value over the
Aggregate Initial Bond Value.
"AGGREGATE INITIAL OVERCOLLATERALIZATION FACTOR": With respect to any
Series, a fraction (expressed as a percentage) the numerator of which is
the Aggregate Initial Overcollateralization Amount and the denominator of
which is the principal amount of the Bonds outstanding on the Issue Date.
"AGGREGATE LOAN LOSSES": With respect to the Pledged Loans securing a
Series, as of any Determination Date the sum of the Loan Losses from the
Cut-Off Date to such Determination Date.
"AGGREGATE OUTSTANDING BOND VALUE": With respect to any Series, the sum
of the Outstanding Bond Values of all Mortgage Collateral securing such
Series on the date of determination.
"APPRAISED VALUE": The value of a Mortgaged Property as set forth in an
appraisal made by or for the Originator in connection with the
origination of the Pledged Loan secured by such Mortgaged Property.
"ASSUMED REINVESTMENT RATE": With respect to any account or fund
securing the Bonds, either (i) the contractually specified interest rate
pursuant to a Reinvestment Agreement specified in the Terms Indenture or,
(ii) if no Reinvestment Agreement is entered into with respect to the
Bonds, the rate or rates of interest or other earnings as specified in
the Terms Indenture.
"AUTHORIZED OFFICER": Any officer of the Owner-Trustee who is authorized
to act for the Owner-Trustee in respect of the Issuer and whose name
appears on a list of such authorized officers furnished by the
Owner-Trustee to the Trustee as such list may be amended or supplemented
from time to time.
"AUTHORIZED OFFICER'S CERTIFICATE": A certificate signed by an Authorized
Officer on behalf of the Issuer and delivered to the Trustee. Unless
otherwise specified, any reference in this Standard Provisions Indenture
to an Authorized Officer's Certificate shall be to an Authorized
Officer's Certificate of the Owner-Trustee.
"BACK-UP SERVICER": The Person specified in the Terms Indenture, if any,
acting as back-up to the Services of the Pledged Loans securing the
Bonds, or its successors or assigns. Such Person shall be acceptable to
each Rating Agency rating the Bonds.
"BACK-UP SERVICING AGREEMENT": The agreement between the Issuer and the
Back-up Servicer relating to the Pledged Loans, if any, as such agreement
may be amended or supplemented.
"BOARD OF DIRECTORS": The Board of Directors of any corporation or any
committee of that Board duly authorized under applicable law to act on
behalf of the Board.
"BOARD RESOLUTION": A copy of a resolution certified by the Secretary or
an Assistant Secretary of any corporation to have been duly adopted by
the Board of Directors.
"BONDHOLDER" or "Holder": The Person in whose name a Bond is registered
in the Bond Register for a Series.
"BOND INTEREST RATE": With respect to any Series or Class, the annual
rate at which interest accrues on the Bonds
of such Series or Class, as specified in the related Terms Indenture.
"BOND REGISTER" and "BOND REGISTRAR": The respective meanings specified
in Section 3.05.
"BONDS": Any Bonds authorized by, and authenticated and delivered under,
this Standard Provisions Indenture or any indenture supplemental hereto.
"BOND VALUATION REPORT": The report setting forth certain information
required by Section 12.11(c).
"BOND VALUE": Unless otherwise specified in the Terms Indenture for a
Series, with respect to each item of Mortgage Collateral securing such
Series, the difference between the Collateral Value for the Mortgage
Collateral and the Overcollateralization Amount pertaining to the
Mortgage Collateral.
"BUSINESS DAY": Any day that is not a Saturday, Sunday, holiday or other
day on which commercial banking institutions in California or the city
and state in which the Trustee's Corporate Trust Office is located are
authorized or obligated by law or executive order to be closed.
"BUY-DOWN FUND": The meaning specified in Section 12.03.
"BUY-DOWN PLEDGED LOAN": A level payment Pledged Loan for which funds
have been provided by a third Person to reduce the Mortgagor's monthly
payments during the early period of such Pledged Loan.
"CERTIFICATE OF DEPOSIT": A certificate of deposit satisfying the
definition of an Eligible Investment.
"CLASS": With respect to any Series, all the Bonds of such Series having
the same Stated Maturity of principal.
"COLLATERAL": For a Series unless otherwise provided in the Terms
Indenture for such Series, the Issuer's right, title and interest in: the
Mortgage Collateral (and all substitutions therefor as provided in
Section 3.11 of this Standard Provisions Indenture), together with the
related Loan Documents for the Pledged Loans and the Issuer's interest in
any Mortgaged Property which secured a Pledged Loan but which has been
acquired by foreclosure or deed in lieu of foreclosure, and all proceeds
thereof, the Collection Account and all proceeds thereof, the Debt
Service Funds and all proceeds thereof, the Reserve Fund and all proceeds
thereof, the Overcollateralization Fund and all proceeds thereof, the
Other Funds and all proceeds thereof, the Prepayment Reserve Account and
all proceeds thereof, the Supplemental Custodial Reserve Fund and all
proceeds thereof, the Prepayment Account and all proceeds thereof, the
Insurance Policies and all proceeds thereof, the Servicing Agreements and
the Back-up Servicing Agreement (together with any guarantees thereof)
and all proceeds thereof, the Reinvestment Agreements and any
replacements thereof and all proceeds thereof, proceeds of all the
foregoing (including, but not by way of limitation, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kinds, and other forms of obligations and
receivables which at the time constitute all or part or included in the
proceeds of any of the foregoing) for such Series.
"COLLATERAL PROCEEDS": With respect to any Mortgage Collateral securing a
Series, the amount paid to the holder of such Mortgage Collateral in
accordance with the terms of such Mortgage Collateral.
"COLLATERAL VALUE": Unless otherwise specified in the Terms Indenture for
a Series, with respect to each Mortgage Certificate and Pledged Loan
securing such Series, the lesser of (i) the present value of the
regularly scheduled monthly payments of principal and interest on such
Mortgage Certificate or Pledged Loan (together with the allocable portion
of the Debt Service Funds or the Other Funds, if applicable, for such
Series) net of servicing, insurance and related fees, together with
Reinvestment Income thereon at the applicable Assumed Reinvestment Rate
for such Series, discounted at the highest Bond Interest Rate for such
Series with the same frequency as the Payment Dates for such Series, or
(ii) the Maximum Collateral Value.
"COLLECTION ACCOUNT": The meaning specified in Section 12.07.
"COMMISSION": The Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time under the Trust Indenture Act or
similar legislation replacing the Trust Indenture Act.
"COMPOUND INTEREST BOND": A Bond of a Series on which interest accrues
and is compounded and added to the principal of such Bond periodically,
but with respect to which neither interest nor principal is payable until
the entire principal amount of each Outstanding Bond of the same Series
having an earlier Stated Maturity of principal has been paid in full.
"CORPORATE TRUST OFFICE": The principal corporate trust office of the
Trustee currently located at ______________ or at such other address as
the Trustee may designate from time to time by notice to the Bondholders
and the Issuer, or the principal corporate trust office of any successor
Trustee.
CUSTODIAL P & I ACCOUNT. The custodial demand deposit account or
accounts established by each Servicer under its Servicing Agreement with
a bank or savings and loan association, fully insured by the FDIC, into
which the Servicer is to deposit or cause to be deposited all payments of
principal and interest on the Mortgage Loans (including any advances made
by any Servicer under the Servicing Agreement), Liquidation Proceeds,
Insurance Proceeds (except for those reserved for the repair or
restoration of the Mortgaged Property) and other sums which are required
to be deposited in such accounts by the Servicing Agreement.
CUSTODIAL T & I RESERVE ACCOUNT. The custodial demand deposit account
established by each Servicer under its Servicing Agreement, into which
the Servicer is to deposit or cause to be deposited all sums remitted to
the Servicer in respect of a Mortgage Loan, as reserves for real estate
taxes, governmental improvement assessments and premiums for a Primary
Mortgage Insurance Policy or FHA Certificate of Mortgage Insurance and
the Standard Hazard Insurance Policy; any advances for the foregoing
items made by the Servicer pursuant to the Servicing Agreement; and any
other sums which are required to be deposited into such account by the
Servicing Agreement.
CUSTODIAL AGREEMENT. That agreement among CRSM Mortgage Securities Trust
No. ___, _________, _____ Mortgage Servicing Center, Inc., BANK (the
"Trustee") and _____ (the "Custodian").
"CUT-OFF DATE": With respect to any Series, the date specified in the
related Terms Indenture.
"DATE OF EXECUTION": The actual date of execution of the Standard
Provisions Indenture or any Terms Indenture by the Issuer and the Trustee
as indicated by their respective acknowledgements hereto or thereto
annexed, and if the Issuer and the Trustee shall have executed this
Standard Provisions Indenture or a Terms Indenture at different dates,
the later date.
"DEBT SERVICE FUNDS": Unless otherwise specified in the Terms Indenture
for a Series, the total of the Supplemental Debt Service Fund and the
Buy-Down Fund for such Series.
"DEFAULT": Any occurrence which is, or with notice or the lapse of time
or both would become, an Event of Default.
"DEFICIENCY": With respect to each GPM GNMA Certificate or GPM Pledged
Loan securing a Series valued on a level debt service basis in
calculating Initial Bond Value, the amount by which payments of
principal and interest on such item of GPM Collateral assumed in
calculating payments due on the Bonds of such Series exceed scheduled
payments on such item of GPM Collateral according to the graduated
payment mortgage plan for the period during which such excess occurs.
The amount of the deposit to the Supplemental Debt Service Fund securing
a Series will be specified in the related Terms Indenture.
"DELIVERY DATE": The date that Bonds of a Series are delivered to the
original purchasers of such Bonds.
"DEPOSITOR": CRSM Securities, Inc..
"DEPOSIT TRUST AGREEMENT": The deposit trust agreement between CRSM
Securities, Inc., a California corporation, and the Owner-Trustee
creating the Issuer.
"DETERMINATION DATE": The date specified in the related Terms Indenture.
"DUE DATE": Each date on which a payment whether of principal or interest
or both is due on a Mortgage Certificate or Pledged Loan securing a
Series.
"DUE PERIOD": With respect to each Payment Date for a Series, the related
Due Period shall be the period beginning immediately following the
preceding Due Period (or, in the case of the Due Period which is
applicable to the first Payment Date, beginning on the Issue Date for
such Series) and ending at the close of business on the last Business Day
preceding such Payment Date.
"ELIGIBLE INVESTMENTS": Except to the extent expanded or restricted by
the Terms Indenture for the Series of which such obligations or
securities form part of the Trust Estate, any one or more of the
following obligations or securities:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith
and credit of the United States of America;
(ii) general obligations of or obligations guaranteed by any State of the
United States or the District of Columbia which have the highest rating
from each Rating Agency rating the Bonds of such Series at the time of
such investment;
(iii)(a) demand and time deposits in, certificates of deposit of,
banker's acceptances issued by, or federal funds sold by any depository
institution or trust company incorporated under the laws of the United
States of America (including the Trustee) or any State thereof and
subject to supervision and examination by federal and/or State banking
authorities so long as the commercial paper and/or debt obligations of
such depository institution or trust company (or, in the case of the
principal depository institution in a holding company system, the
commercial paper or debt obligations of such holding company) at the time
of such investment or contractual commitment providing for such
investment are then rated in the highest rating category of each Rating
Agency rating the Bonds of such Series or such lower category that will
not result in the lowering of the then rating of the Bonds of such Series
by any such Rating Agency and (b) any other demand or time deposit or
certificate of deposit which is fully insured by the Federal Deposit
Insurance Corporation;
(iv) repurchase obligations with respect to (a) any security described in
clauses (i) and (ii) above or (b) any other security issued or guaranteed
by an agency or instrumentality of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (iii)(a) above;
(v) Securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any State thereof which at the time of such investment or contractual
commitment providing for such investment are then rated in the highest
rating category of each Rating Agency rating the Bonds of such Series or
in such lower rating category that will not result in the lowering of
the then rating of the Bonds of such Series by any such Rating Agency;
provided, however, that securities issued by any particular corporation
will not be Eligible Investments to the extent that the investment
therein will cause the then outstanding principal amount of securities
issued by such corporation and held as part of the Trust Estate for a
Series to exceed 10% of the aggregate outstanding principal balances and
amounts of all the Mortgage Collateral and Eligible Investments held as
part of the Trust Estate for such Series;
(vi) commercial or finance company paper which has the highest commercial
or finance company rating of each
Rating Agency rating the Bonds of such Series at the time of such
investment or such lower rating category that will not result in the
lowering of the then rating of the Bonds of such Series by any such
Rating Agency; and
(vii) a guaranteed investment contract issued by any insurance company or
other corporation or entity acceptable to each Rating Agency rating the
Bonds of such Series and which will not result in a lowering of the then
rating of the Bonds of such Series;
provided that, unless otherwise set forth in a related Terms Indenture,
Eligible Investments for a Series shall include only such obligations or
securities that mature on the earlier of 90 days after deposit, the next
Payment Date for such Series or on or before the date on which the
Supplemental Debt Service Fund, the Buy-Down Fund, the Reserve Fund, the
Overcollateralization Fund or the Other Funds for such Series are
required or may be anticipated to be required to be holders of Bonds of
such Series in accordance with this Standard Provisions Indenture or the
relevant Terms Indenture and that Eligible Investments purchased from
funds in the Collection Account for such Series shall include only such
obligations or securities that mature on the earlier of 90 days after
deposit, the next Payment Date for such Series or on or before the date
on which the Collection Account for such Series is required to be
invested pursuant to a Reinvestment Agreement for such Series.
"EVENT OF DEFAULT": The meaning specified in Section 6.01.
"EXCESS CASH": As of any Payment Date for a Series, the excess, if any,
of the sum of (i) the distributions received on the Mortgage Collateral
securing such Series in the Due Period prior to such Payment Date, (ii)
the Reinvestment Income thereon and (iii) if applicable, the amount of
cash withdrawn from the related Debt Service Funds, the Reserve Fund, the
Overcollateralization Fund and the Other Funds for such Series of Bonds
in the Due Period preceding such Payment Date, over the sum of (a) all
interest accrued and paid or payable on the Bonds of such Series since
the preceding Payment Date; (b) the Required Principal Payment required
to be made on such Series of Bond on such Payment Date, (c) the interest,
if any, accrued but unpaid on any Compound Interest Bonds of such Series
since the immediately preceding Payment Date, (d) the amount of any
required deposits to the related Debt Service Funds, the Reserve Fund,
the Overcollateralization Fund and the Other Funds, and (e) necessary
expenses allocable to the administration of records of deposits and
disbursements.
"EXCESS COVERAGE MORTGAGE INSURANCE POLICY": With respect to a Series,
any policy of mortgage insurance (including all endorsements thereto) in
addition to the Primary Mortgage Insurance Policy issued by the Mortgage
Insurer with respect to a Pledged Loan securing such Series, or any
replacement policy.
"EXECUTIVE OFFICER": With respect to any corporation, the Chairman of the
Board of Directors, the President, any Vice President, the Secretary or
the Treasurer of such corporation; with respect to any partnership, any
general partner thereof; with respect to any bank or trust company acting
as trustee of an express trust or as custodian, any trust officer or
authorized officer thereof.
"FEDERAL BANKRUPTCY CODE": Title 11 of the United States Code, as
amended, or any successor statute.
"FHA": The Federal Housing Administration or any successor thereof.
"FHA LOANS": Mortgage loans insured by the FHA under the National Housing
Act of 1934, as amended.
"FHLMC" or "βββββββ Mac": The Federal Home Loan Mortgage Corporation or
any successor thereof.
"FINANCE COMPANY": Each of the limited purpose financing companies
organized for the purpose of borrowing proceeds of one or more Series of
Bonds issued pursuant to this Standard Provisions Indenture or other
Series of Bonds issued pursuant to another indenture from time to time.
"FIRST MANDATORY PRINCIPAL PAYMENT DATE": With respect to any Series or
Class, the Payment Date specified in the related Terms Indenture as the
Payment Date on which the Issuer must begin paying installments of
principal of the Bonds of such Series or Class if it has not already
begun making such payments.
"FNMA": The Federal National Mortgage Association or any successor
thereof.
"FNMA MBS": A guaranteed mortgage pass-through certificate consisting of
an undivided interest in a pool of mortgage loans secured by a lien on
residential property formed by FNMA, which is pledged to the Trustee
under this Standard Provisions Indenture and the related Terms Indenture
as security for a Series, and all renewals, extensions, substitutions and
replacements thereof. Each pool consists of mortgage loans of one of the
following types: (i) fixed rate level installment conventional mortgage
loans, (ii) fixed rate level installment mortgage loans that are insured
by the FHA or guaranteed by the VA or (iii) fixed rate conventional
growing equity mortgage loans that provide for scheduled annual increased
payments, with the full amount of the increase applied to principal. The
FNMA MBSs securing a Series may consist of types (i) and (ii). The term
"Outstanding FNMA MBSs" with respect to a Series as of any date means the
FNMA MBSs securing such Series with a remaining principal balance. Each
FNMA MBS pledged to the Trustee as security for a Series will be listed
in a schedule to the related Terms Indenture.
"βββββββ MAC PC": A mortgage participation certificate representing an
undivided interest in specified fixed rate, conventional residential
mortgages purchased by the βββββββ Mac, which is pledged to the Trustee
under this Standard Provisions Indenture and the related Terms Indenture
as security for a Series, and all renewals, extensions, substitutions and
replacements thereof. The term "Outstanding βββββββ Mac PCs" with
respect to a Series as of any date means the βββββββ Mac Pcs securing
such Series with a remaining principal balance. Each βββββββ Mac PC
pledged to the Trustee as security for a Series will be listed in a
Schedule to the related Terms Indenture.
"GNMA": The Government National Mortgage Association or any successor
thereof.
"GNMA CERTIFICATE": A fully-modified pass-through mortgage-backed
certificate issued by a Servicer and guaranteed by GNMA, which is pledged
to the Trustee under this Standard Provisions Indenture and the related
Terms Indenture as security for a Series, and all renewals, extensions,
substitutions and replacements thereof. Each such GNMA Certificate will
be a GNMA I Certificate or a GNMA II Certificate as referred to by GNMA.
The terms "Outstanding GNMA Certificates" with respect to a Series as of
any date means the GNMA Certificates with a remaining principal balance.
Each GNMA Certificate pledge to the Trustee as security for a Series will
be listed in a Schedule to the related Terms Indenture.
"GRADUATED PAYMENT MORTGAGE COLLATERAL": Unless otherwise specified in
the Terms Indenture for a Series, together, the GPM GNMA Certificates and
the GPM Pledged Loans securing such Series.
"GPM": Graduated Payment Mortgages.
"GPM GNMA CERTIFICATES": GNMA Certificates evidencing mortgage loans
insured by the FHA pursuant to Section 245 of the National Housing Act or
partially guaranteed by the VA pursuant to the Servicemen's Readjustment
Act of 1944, as amended, and which provided for monthly installments to
increase annually for no more than the first five years of such mortgage
loans.
"GPM PLEDGED LOANS": Pledged Loans which provide for monthly installments
during a portion of their terms which are less than the actual amount of
principal and interest which would be payable on a debt service basis.
"GRANT": To grant, bargain, sell, warrant, alienate, remise, demise,
release, convey, assign, transfer, mortgage, pledge, create and grant a
security interest in and right of set-off against, deposit, set over and
confirm. A Grant of the Mortgage Collateral or of any other instrument
shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including without
limitation the immediate and continuing right to claim for, collect,
receive and receipt for principal and interest payments in respect of the
Mortgage Collateral and all other moneys payable thereunder, to give and
receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in
the name of the
Granting party or otherwise, and generally to do and receive anything
which the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"HOLDER": An owner of any Class 1-A or Class 1-R Bonds.
"INDENTURE": With respect to a Series, the collective provisions of the
Standard Provisions Indenture and the Terms Indenture for such Series of
Bonds.
"INDEPENDENT": When used with respect to any specified Person means such
a Person, who (1) is in fact independent of the Issuer and any other
obligor upon the Bonds or an Affiliate of the Issuer or such other
obligor, (2) does not have any direct financial interest or any material
indirect financial interest in the Issuer or in any such other obligor or
in an Affiliate of the Issuer or such other obligor, and (3) is not
connected with the Issuer or any such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by Issuer Order and approved by
the Trustee in the exercise of reasonable care and such opinion or
certificate shall state that the signer has read this definition and that
the signer is independent within the meaning thereof.
"INITIAL BOND VALUE": With respect to each Mortgage Certificate or
Pledged Loan securing a Series, the Bond Value of each such Mortgage
Certificate or Pledged Loan at the date of issuance of the Bonds of such
Series.
"INITIAL COLLATERAL VALUE:" With respect to each Mortgage Certificate or
Pledged Loan securing a Series, the Collateral Value of each such
Mortgage Certificate or Pledged Loan at the date of issuance of the Bonds
of such Series.
"INITIAL OUTSTANDING GNMA CERTIFICATE AMOUNT": With respect to a GNMA
Certificate securing a Series, the Outstanding GNMA Certificate Amount as
of the Cut-off Date for such Series less the amount of the principal
payment due on such GNMA Certificate in the month in which such Cut-off
Date occurs.
"INITIAL OUTSTANDING FNMA MBS AMOUNT": With respect to a FNMA MBS
securing a Series, the Outstanding FNMA MBS Amount as of the Cut-off Date
for such Series less the amount of the principal payment due on such FNMA
MBS in the month in which such Cut-off Date occurs.
"INITIAL OUTSTANDING βββββββ MAC PC AMOUNT": With respect to a βββββββ
Mac PC securing a Series, the Outstanding βββββββ Mac PC Amount as of the
first day of the month immediately preceding the month of the Cut-off
Date for such Series less the amount of the principal payment paid in the
month immediately preceding the month in which such Cut-off Date occurs
and the amount of such payment due in such month.
"INITIAL OUTSTANDING MORTGAGE CERTIFICATE AMOUNT": Together, the Initial
Outstanding GNMA Certificate Amount, the Initial Outstanding βββββββ Mac
PC Amount, the Initial Outstanding FNMA MBS Amount and the Initial
Outstanding Other Mortgage Certificate Amount for a Series.
"INITIAL OUTSTANDING MORTGAGE COLLATERAL AMOUNT": Together, the Initial
Outstanding Mortgage Certificate Amount and the Initial Outstanding
Pledged Loan Amount for a Series.
"INITIAL OUTSTANDING OTHER MORTGAGE CERTIFICATE AMOUNT": With respect to
an Other Mortgage Certificate securing a Series, the Outstanding Other
Mortgage Certificate Amount as of the Cut-off Date for such Series or
such other date as may be specified in the related Terms Indenture.
"INITIAL OUTSTANDING PLEDGED LOAN AMOUNT": With respect to a Pledged Loan
securing a Series, the Outstanding Pledged Loan Amount as of the Cut-off
Date for such Series.
"INITIAL OVERCOLLATERALIZATION AMOUNT": With respect to each Series, the
amount specified in the related Terms Indenture.
"INITIAL OVERCOLLATERALIZATION FACTOR": With respect to each Series, the
amount equal to the Initial Overcollateralization Amount divided by the
Initial Bond Value of the Mortgage Collateral.
"INSURANCE POLICIES": With respect to a Series, any Primary Mortgage
Insurance Policies, any Excess Coverage Mortgage Insurance Policies, any
Pool Insurance Policy, and Special Hazard Insurance Policy, any Mortgagor
Bankruptcy Bond, any Repurchase Bond, any Prepayment Interest Bond, any
FHA insurance, any VA guarantees, and any other insurance policy covering
and Pledged Loan or Mortgaged Property securing such Series, including,
without limitation, any Standard Hazard Insurance Policy and any Title
Insurance Policy as specified in the related Terms Indenture.
"INSURANCE PROCEEDS": With respect to a Series, amounts paid or payable
under any Insurance Policy with respect to such Series, to the extent not
applied to the restoration or repair of the Mortgaged Property covered
thereby.
"INSURER": With respect to a Series, the Mortgage Insurer, the Pool
Insurance Insurer and the Special Hazard Insurer, when no distinction is
required by the content in which used. Each such Insurer must be rated
in the highest rating category of each Rating Agency rating any Series of
Bonds issued pursuant to this Standard Provisions Indenture unless a
lower Insurer rating will not result in the lowering of the then rating
of any Series of Bonds by any Rating Agency rating any Series of Bonds
issued pursuant to this Standard Provisions Indenture.
"ISSUE DATE": With respect to a Series, the date specified in the related
Terms Indenture.
"ISSUER": With respect to the Series No. 1 Bonds, CRSM Mortgage
Securities Trust No. ___, a Delaware business trust, unless a successor
Person shall have become the Issuer pursuant to the applicable provisions
of this Standard Provisions Indenture.
"ISSUER ORDER" and "ISSUER REQUEST": A written order or request signed in
the name of the owner-trustee of any Trust issuing Bonds by its Chairman,
President, or a Vice President, and by its Treasurer, an Assistant
Treasurer, Controller, an Assistant Controller, Secretary, or an
Assistant Secretary, and delivered to the Trustee.
"LETTER OF CREDIT": An irrevocable letter of credit issued to the Trustee
by any banking corporation incorporated under the laws of the United
States or of any state thereof provided that the unsecured senior debt
obligations of such banking corporation have been rated in the highest
category by each Rating Agency rating a Series of Bonds or issued by any
other entity acceptable to each Rating Agency rating the Bonds. Unless
otherwise specified in the Terms Indenture, any such Letter of Credit
shall provide that it is subject to termination upon not less than 60
days' prior written notice to the Trustee, in which case, unless such
Letter of Credit is renewed or a substitute Letter of Credit in the
requisite amount is provided, upon receipt of any such written notice,
the Trustee shall immediately, and in no case more than 15 days after
such notice, draw on the Letter of Credit for the entire unutilized
balance thereof and deposit such amount in the fund for which the Letter
of Credit is obtained. Unless otherwise specified in the Terms Indenture,
any such Letter of Credit also shall provide for written notice to the
Trustee of any change in the rating of the unsecured senior debt
obligations of the banking corporation or any change in the rating of any
other entity issuing the Letter of Credit, in which case upon receipt of
any such written notice the Trustee shall immediately, and in no case
more than 15 days after such notice, draw on the Letter of Credit for the
entire unutilized balance thereof and deposit such amount in the fund for
which the Letter of Credit is obtained unless such change in such rating
will not result in the lowering of the then rating of the Bonds by any
Rating Agency rating the Bonds.
"LIQUIDATION PROCEEDS": Amounts (other than Insurance Proceeds) received
and retained in connection with the liquidation of defaulted Pledged
Loans securing a Series, whether through foreclosure or otherwise.
"LOAN DOCUMENTS": The mortgage documents pertaining to a particular
Pledged Loan comprising the mortgage file reviewed and held by the
Trustee as provided in the Master Servicing Agreement covering such
Pledged
Loan.
"LOAN LOSSES": With respect to the Pledged Loans securing a Series, as of
the Determination Date, the aggregate amount of losses on such Pledged
Loans in connection with defaults, delinquencies, foreclosures and other
losses not recovered under any applicable Insurance Policies occurring
during the Due Period.
"LOAN-TO-VALUE RATIO": The outstanding principal amount of a Mortgage
Note at the time of the origination of such Mortgage Note divided by the
lesser of (i) the Appraised Value of the related Mortgaged Property or
(ii) the selling price for such Mortgaged Property.
"MATURITY": With respect to any Bond of a Series, the date on which the
unpaid principal of such Bond becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"MATURITY DATE": With respect to any item of Mortgage Collateral securing
a Series, the date on which the last payment of principal of such item of
Mortgage Collateral shall be due and payable. In determining the
Maturity Date of such item of Mortgage Collateral, all prepayments
received prior to the date of determination shall be taken into account.
"MAXIMUM COLLATERAL VALUE": Unless otherwise specified in the Terms
Indenture for a Series, with respect to each Mortgage Certificate and
Pledged Loan securing such Series, the Outstanding Mortgage Certificate
Amount or the Outstanding Pledged Loan Amount for such Mortgage
Certificate or Pledge Loan multiplied by the Maximum Collateral Value
Factor.
"MAXIMUM COLLATERAL VALUE FACTOR": With respect to any Series, the
factor calculated in accordance with a Schedule to the related Terms
Indenture.
"MINIMUM COLLATERAL VALUE": Unless otherwise specified in the Terms
Indenture for a Series, with respect to each Mortgage Certificate and
Pledged Loan securing such Series, the Outstanding Mortgage Certificate
Amount or the Outstanding Pledged Loan Amount for such Mortgage
Certificate or Pledged Loan multiplied by the Minimum Collateral Value
Factor.
"MINIMUM COLLATERAL VALUE FACTOR": With respect to any Series, the factor
calculated in accordance with a Schedule to the related Terms Indenture.
"MONTHLY REMITTANCE ADVICE": The report provided by the Servicer to the
registered holder of a GNMA Certificate summarizing the current month's
account transactions with respect to such GNMA Certificate.
"MORTGAGE": The mortgage, deed of trust or other instrument securing a
Mortgage Note.
"MORTGAGE CERTIFICATES": With respect to a Series, the GNMA Certificates,
the βββββββ Mac Pcs, the FNMA MBSs and the Other Mortgage Certificate
securing such Series.
"MORTGAGE COLLATERAL": With respect to a Series, together, the Mortgages
and the Mortgage Notes and the Pledged Loans securing such Series.
"MORTGAGE COLLATERAL REPORT": The report provided by the Issuer
pursuant to Section 12.11.(a)
"MORTGAGE INSURER": With respect to a Series, the insurance company or
companies specified in the related Terms Indenture or its subsidiaries,
successors or any Affiliate.
"MORTGAGE NOTE": The note or other evidence of indebtedness of a
Mortgagor with respect to a Pledged Loan.
"MORTGAGED PROPERTY": The real property, together with improvements
thereto, securing the indebtedness of the Mortgagor under the related
Pledged Loan.
"MORTGAGE RATE": With respect to a Pledged Loan, the annual interest rate
required to be paid by the Mortgagor under the terms of the related
Mortgage Note.
"MORTGAGE REPURCHASE BOND" With respect to a Series of Bonds, a bond
obtained and secured by one or more Pledged Loans for the purpose of
insuring the repurchase obligation of the Servicer or the Back-up
Servicer for such Series of Bonds. The amount and duration of the
coverage of such Mortgage Repurchase Bond will be determined by the
rating agency rating the Bonds of such Series and will be set forth in
the related Prospectus Supplement and in the related Terms Indenture.
"MORTGAGOR": The Person indebted under a Pledged Loan.
"MORTGAGOR BANKRUPTCY BOND": With respect to a Series, a policy of
insurance or a Letter of Credit (or any other instrument providing
comparable or greater coverage that will not result in a downgrading of
the then rating on the Bonds of such Series by any Rating Agency rating
the Bonds of such Series) to be issued by the Mortgagor Bankruptcy Bond
Issuer.
"MORTGAGOR BANKRUPTCY BOND ISSUER": With respect to a Series, the company
or companies specified in the related Terms Indenture providing coverage
with respect to each Pledged Loan securing such Series requiring such
coverage in the event of the bankruptcy of the Mortgagor.
"OPINION OF COUNSEL": A written opinion of an attorney at law admitted
to practice before the highest court of any state of the United States or
the District of Columbia or a law firm that may, except as otherwise
expressly provided in this Indenture, be counsel for the Issuer and who
shall be satisfactory to the Trustee. Such counsel will be entitled to
rely upon certificates, opinions or representations as to matters of fact
to the extent permitted by Section 15.2 and, as to matters involving the
laws of any state other than the state in which such counsel is admitted
to practice, upon the opinion of counsel satisfactory to the Trustee.
"ORIGINAL MORTGAGE COLLATERAL": An item of Mortgage Collateral which is
pledged to the Trustee under this Standard Provisions Indenture as
security for a Series of Bonds on the Delivery Date of such Bonds.
"ORIGINATOR": For a Pledged Loan, the Person that originated such Pledged
Loan.
"OTHER FUNDS": The meaning specified in Section 12.05.
"OTHER MORTGAGE CERTIFICATE": An item of Mortgage Collateral, other than
a GNMA Certificate, βββββββ Mac PC, FNMA MBS or Pledged Loan, which is
pledged to the Trustee under this Standard Provisions Indenture and the
related Terms Indenture and all renewals, extensions, substitutions and
replacements thereof. An Other Mortgage Certificate may include a
mortgage pass-through certificate or a mortgage-collateralized
obligation. The term "Outstanding Other Mortgage Certificate" with
respect to a Series of any date means an Other Mortgage Certificate with
a remaining principal balance. Each Other Mortgage Certificate pledged
to the
Trustee as security for a Series will be described and listed in a
Schedule to the related Terms Indenture.
"OUTSTANDING": With respect to a Series, as of the date of determination,
all Bonds of such Series theretofore authenticated and delivered under
this Standard Provisions Indenture except:
(i) Bonds theretofore canceled by the Bond Registrar or delivered to the
Bond Registrar for cancellation;
(ii) Bonds or portions thereof for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and
segregated in trust by the Issuer for the holders of such Bonds; provided
that, if such Bonds or portions thereof are to be redeemed, notice of
such redemption has been duly given pursuant to this Standard Provisions
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to this Standard Provisions
Indenture unless proof satisfactory to the Trustee is presented that any
such Bonds are held by a holder in due course; and
(iv) Bonds alleged to have been destroyed, lost or stolen for which
replacement Bonds have been issued as provided in Section 3.06;
provided that, in determining whether the Holders of the requisite
principal amount of the Outstanding Bonds of any Series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Bonds owned by the Issuer, any owner of a beneficial interest
in the Issuer or any other obligor upon the Bonds or any Affiliate of the
Issuer, any owner of a beneficial interest in the Issuer or of such other
obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying,
upon any such request, demand, authorization, direction, notice, consent
or waiver, only Bonds which the Trustee knows to be so owned shall be so
disregarded. Bonds so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Bonds and
that the pledgee is not the Issuer, any owner of a beneficial interest in
the Issuer of any other obligor upon the Bonds or any Affiliate of the
Issuer, any owner of a beneficial interest in the Issuer or such other
obligor.
"OUTSTANDING BOND VALUE": Unless otherwise specified in the Terms
Indenture for a Series, with respect to each Mortgage Certificate or
Pledged Loan securing such Series at any time after the issuance of the
Bonds of such Series, the Bond Value of such Mortgage Certificate or
Pledged Loan.
"OUTSTANDING FNMA MBS AMOUNT": With respect to a FNMA MBS securing a
Series, the outstanding principal amount of such FNMA MBS as provided by
the FNMA to the Trustee.
"OUTSTANDING βββββββ MAC PC AMOUNT": With respect to a βββββββ Mac PC
securing a Series, the outstanding principal amount of such βββββββ Mac
PC as provided by βββββββ Mac to the Trustee.
"OUTSTANDING GNMA CERTIFICATE AMOUNT": With respect to a GNMA Certificate
securing a Series, the outstanding principal amount of such GNMA
Certificate securing such Series as provided by the Servicer to the
registered holder in the Monthly Remittance Advice.
"OUTSTANDING MORTGAGE CERTIFICATE AMOUNT": Together, the Outstanding GNMA
Certificate Amount, the Outstanding βββββββ Mac PC Amount, the
Outstanding FNMA MBS Amount and the Outstanding Other Mortgage
Certificate Amount.
"OUTSTANDING MORTGAGE COLLATERAL AMOUNT": Together, the Outstanding
Mortgage Certificate Amount and the Outstanding Pledged Loan Amount.
"OUTSTANDING OTHER MORTGAGE CERTIFICATE AMOUNT": With respect to an Other
Mortgage Certificate securing a
Series, the outstanding principal amount of such Other Mortgage
Certificate as provided by the Servicer thereof to the Trustee.
"OUTSTANDING PLEDGED LOAN AMOUNT": With respect to a Pledged Loan
securing a Series, the outstanding principal amount less any principal
advances on such Pledged Loan as reported by the Manager to the Trustee
in the Accounting Report.
"OVERCOLLATERALIZATION AMOUNT": With respect to any Series, the
difference between the Aggregate Initial Overcollateralization Amount for
such Series and the Aggregate Loan Losses for such Series.
"OVERCOLLATERALIZATION FUND": The meaning specified in Section 12.04.
"OWNER-TRUSTEE": The owner trustee of any Trust issuing Bonds under this
Standard Provisions Indenture and a Terms Indenture.
"PAYING AGENT": Any Person authorized by the Issuer to pay the principal
of or interest on any series of Bonds on behalf of the Issuer as
specified in the related Terms Indenture.
"PAYMENT DATE": With respect to any Series or Class, each date specified
as a "Payment Date" for the Bonds of such Series or Class in the related
Terms Indenture.
"PERMITTED ENCUMBRANCE": With respect to any Mortgage Collateral securing
a Series, (i) the lien created by this Standard Provisions Indenture,
(ii) liens for taxes, assessments, levies, fees and other governmental
and similar charges either not yet due or being contested in an
appropriate Proceeding which shall suspend the collection thereof, shall
not expose any part of the Trust Estate securing such Series to loss,
sale or forfeiture and shall not affect the payments to the Trustee of
any amounts payable under this Standard Provisions Indenture to the
Trustee and (iii) the exceptions to title set forth in any Title
Insurance Policy or title report which exceptions are acceptable to the
Issuer.
"PERSON": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"PLEDGED LOANS": The mortgage loans, including any FHA and VA Loans,
pledged to the Trustee as security for a Series, and all renewals,
extensions, substitutions and replacements thereof. The term
"Outstanding Pledged Loans" as of any date means the Pledged Loans
securing a Series with a remaining principal balance. Each Pledged Loan
pledged to the Trustee as security for a Series shall be listed in a
Schedule to the related Terms Indenture.
"PREPAYMENT ACCOUNT": The account established with the Trustee in which
shall be deposited the proceeds of an prepayments received by the Trustee
pursuant to Section 3.10.
"PREPAYMENT INTEREST BOND": With respect to a Series, a Letter of Credit
(or any other instrument providing comparable or greater coverage that
will not result in a downgrading of the then rating on the Bonds of such
Series by any Rating Agency rating the Bonds of such Series) respecting
Pledged Loans that do not require the underlying borrower to pay
interest to the end of the month on principal prepayments of such Pledged
Loans.
"PREPAYMENT INTEREST BOND ISSUER": With respect to a Series, the company
or companies specified in the related Terms Indenture proving the
Prepayment Interest Bond.
"PREPAYMENT RESERVE ACCOUNT": The account established with the Trustee
with respect to a Series in which shall be deposited the portion
specified in the related Terms Indenture of the Excess Cash pursuant to
Section 12.09.
"PRIMARY MORTGAGE INSURANCE POLICY": The policy of primary mortgage
insurance (including all endorsements
thereto) issued by the Mortgage Insurer with respect to a Pledged Loan,
or any replacement policy.
"PRINCIPAL PREPAYMENT": With respect to any Pledged Loan or Mortgage
Certificate securing a Series, a payment of principal on such Pledged
Loan or the mortgage loans underlying such Mortgage Certificate in excess
of the scheduled principal payments, such excess resulting from
prepayment, partial prepayment, Liquidation Proceeds and Insurance
Proceeds and guarantees with respect to such Pledged Loan, such Mortgage
Certificate or the mortgage loans underlying such Mortgage Certificate.
"PRINCIPAL PRIORITY SCHEDULE": The order of principal payments on the
Classes of Bonds of a Series as set forth in the related Terms Indenture.
"PROCEEDING": Any suit in equity, action at law or other judicial or
administrative proceeding.
"PROSPECTUS"" The Prospectus filed on _________, with the Securities
wand Exchange Commission under Rule 424(b).
"PROSPECTUS SUPPLEMENT": the Prospectus Supplement filed on ___________
under Rule 424(b).
"RATING AGENCY": ____________. or any other nationally recognized rating
agency rating a Series at the time of the issuance of such Series.
"RECORDS": All of the books, ledgers, documents, communications,
writings, schedules, reconciliations, controls, computer data, printouts,
programs, tapes and other electronic data processing storage devices, and
all other data relating to or maintained in connection with the Pledged
Loans, excluding, however, the Loan Documents.
"REDEMPTION DATE": With respect to any Series, the date specified for a
redemption for Bonds of such Series pursuant to Section 11.01.
"REDEMPTION PRICE": With respect to any Bond of a particular Series and
Class to be redeemed pursuant to Article Eleven hereof, the Redemption
Price specified in the related Terms Indenture.
"REDEMPTION RECORD DATE": With respect to any redemption for Bonds of a
Series, a date fixed pursuant to Section 11.01.
"REGISTERED HOLDER": The Person whose name appears on the Bond Register
on the applicable Regular Record Date or Special Record Date, as the case
may be.
"REGULAR RECORD DATE": With respect to any Payment Date for a Series of
Bonds, the close of business on the day specified as the Regular Record
Date for such Series in the related Terms Indenture, or if such day is
not a Business Day, the Business Day immediately preceding such day.
"REINVESTMENT AGREEMENTS": With respect to a Series, one or more
reinvestment agreements listed in a Schedule to the related Terms
Indenture or one or more replacement reinvestment agreements on
substantially the same terms, from a bank, insurance company or other
corporation meeting the requirements (or whose parent company meets the
requirements) set forth in the definition of Eligible Investments or
otherwise acceptable to each Rating Agency rating the Bonds.
"REINVESTMENT INCOME": Any interest or other earnings on all or part of
the Trust Estate for a Series.
"REMITTANCE DATE": Each date on which payments of principal and interest
on an item of Mortgage Collateral are required to be deposited by the
Trustee into the Collection Account.
"REPURCHASE BOND": With respect to a Series, a repurchase bond (or any
other instrument providing comparable or greater coverage that will not
result in a downgrading of the then rating on the Bonds of such Series by
any
Rating Agency rating the Bonds of such Series) issued by a surety
company (or any other entity acceptable to any Rating Agency rating the
Bonds of such Series) respecting defenses to or claims under any Primary
Mortgage Insurance Policy or Pool Insurance Policy.
"REPURCHASE BOND ISSUER": With respect to a Series, the company or
companies specified in the related Terms Indenture providing the
Repurchase Bond.
"REQUIRED PRINCIPAL PAYMENT": Unless otherwise provided in the related
Terms Indenture, for any Payment Date for a Series of Bonds, an amount
equal to the difference between (i) the sum of (A) the principal amount
of Bonds Outstanding as of the close of business on the preceding Payment
Date (or the latest Redemption Date or Special Redemption Date in the
event a redemption or special redemption has been effected since such
Payment Date) or, with respect to the first Payment Date, the principal
amount of Bonds Outstanding at the Issue Date plus the amount deposited
in the Collection Account pursuant to Section 4.02(17) for such Series
and (B) the Accrual Distribution Amount included in such Series on the
Payment Date and (ii) the Aggregate Outstanding Bond Value of the
Mortgage Collateral as of the Payment Date.
"RESERVE FUND": The meaning specified in Section 12.06.
"RESPONSIBLE OFFICER": With respect to the Trustee, any officer within
the Corporate Trust and agency Group (or any successor group of the
Trustee) including any vice president, assistant vice president,
assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officer, respectively, or to
whom any corporate trust matter is referred at the Trustee's Corporate
Trust office because of his knowledge of and familiarity with the
particular subject.
"SALE": The meaning specified in Section 6.18.
"SCHEDULE OF MORTGAGE COLLATERAL": The Mortgage Collateral securing a
Series listed in a Schedule or Schedules to the related Terms Indenture.
"SERIES": A separate Series of Bonds issued pursuant to this Standard
Provisions Indenture which Series may, as provided in the related Terms
Indenture, be divided into one or more Classes which may include one or
more Classes of Compound Interest Bonds.
"SERVICER": For each GNMA Certificate, the issuer of such GNMA
Certificate, for each βββββββ Mac PC, βββββββ Mac or a seller of
mortgages supervised by βββββββ Mac; for each FNMA MBS, FNMA or an
eligible servicing institution supervised by FNMA; for each Other
Mortgage Certificate, the Person specified as such with respect thereto;
and for each Pledged Loan, a Person approved by the Issuer, by _____
Mortgage Servicing Center, Inc. and by FNMA or βββββββ Mac, and in the
case of FHA Loans by the United States Department of Housing and Urban
Development, as an eligible originator-servicer of mortgage loans.
"SERVICING AGREEMENTS": With respect to a Series, each Servicing
Agreement and all attachments thereto pursuant to which the Servicer of
such Pledged Loan has agreed to perform all the duties incident to the
servicing of such Pledged Loan, as such agreement may be amended or
modified, provided, however, that any such amendment or modification
shall not materially adversely affect the interests and rights of
Bondholders.
"SHORTFALL": With respect to a Buy-Down Pledged Loan securing a Series,
the monthly differences by which required payments on such Buy-Down
Pledged Loan exceed the scheduled monthly payment to be received from the
Mortgagor pursuant to an agreement between the Mortgagor and the lender
of the Mortgaged Property securing such Buy-Down Pledged Loan or another
Person.
"SPECIAL RECORD DATE": With respect to the payment of any defaulted
interest and principal for Bonds of a Series, a date fixed by the
Trustee.
"SPECIAL REDEMPTION BOND VALUE": With respect to a Series, the Special
Redemption Bond Value calculated in accordance with a Schedule to the
related Terms Indenture.
"SPECIAL REDEMPTION DATE": With respect to a Series, the date each month
(other than any month in which a Payment Date Occurs) specified in the
related Terms Indenture on which Bonds of such Series may be redeemed
pursuant to Section 11.02.
"SPECIAL REDEMPTION DETERMINATION REPORT": The report prepared by the
Issuer pursuant to Section 12.11(d).
"SPECIAL REDEMPTION PRICE": For any Bond of a Series to be redeemed
pursuant to a special redemption, a redemption price equal to 100% of the
outstanding principal amount of such Bonds or portion thereof (or the
unpaid Accreted Value in the case of a Compound Interest Bond) to be
redeemed together with accrued and unpaid interest thereon at the
applicable Bond Interest Rate from the immediately preceding Payment Date
specified in the Terms Indenture for a Series.
"SPECIAL REDEMPTION RECORD DATE": With respect to any special redemption
for Bonds of a Series, a date set forth in the Terms Indenture.
"STANDARD HAZARD INSURANCE POLICY": With respect to a Pledged Loan, the
hazard insurance policy issued by a company authorized to issue such
policies in the state in which the Mortgaged Property securing such
Pledged Loan is located.
"STANDARD PROVISIONS INDENTURE": This instrument as originally executed.
All references in this instrument designated "Articles," "Sections,"
"Subsections" and other subdivisions are to the designated Articles,
Sections, Subsections and other subdivisions of this instrument as
originally executed. The words "herein," "hereof," "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section, Subsection or other subdivision.
"STATED MATURITY": With respect to any Bond of a Series, the date
specified in such Bond as the fixed date on which the final installment
of the principal of such Bond is due and payable.
"SUBSTITUTE MORTGAGE COLLATERAL": An item of Mortgage Collateral which is
pledged to the Trustee pursuant to Section 3.11 of this Standard
Provisions Indenture as security for a Series of Bonds.
"SUBSEQUENT DELIVERY DATE": A date fixed by the Issuer for the
substitution of an item of Substitute Mortgage Collateral for an item of
Original Mortgage Collateral or another item of Substitute Mortgage
Collateral.
"SUPPLEMENTAL CUSTODIAL RESERVE FUND": The meaning specified in Section
12.08.
"SUPPLEMENTAL DEBT SERVICE FUND": The meaning specified in Section 12.02.
"TERMS INDENTURE": An indenture supplemental to this Standard Provisions
Indenture that authorizes a particular Series.
"TITLE INSURANCE POLICY": With respect to a Pledged Loan, the policy of
mortgagee's title insurance issued in respect of the Mortgaged Property
securing such Pledged Loan.
"TRUST ESTATE": With respect to a Series, the meaning specified in the
Granting Clause of the related Terms Indenture.
"TRUST INDENTURE ACT" or "TIA": The Trust Indenture Act of 1939, as
amended, as in force at the Date of Execution, unless otherwise
specifically provided.
"TRUSTEE": BANK, unless a successor Person shall have become the Trustee
pursuant to the applicable
provisions of this Standard Provisions Indenture, and thereafter
"Trustee" shall mean such successor Person.
"VA": The U.S. Veterans Administration or any successor thereof.
"VA LOANS": Mortgage loans partially guaranteed by the VA under the
Servicemen's Readjustment Act of 1944, as amended.
"VOTING STOCK": Capital stock of a corporation of any class or classes
(however designated) having ordinary voting power for the election of a
majority of the members of the board of directors (or other governing
body) of such corporation, other than capital stock having such power
only by reason of the happening of a contingency.
ARTICLE TWO: BOND FORM
Section 2.01. FORMS GENERALLY.
The Bonds of a Series and the Trustee's certificate of authentication
shall be in substantially the forms set forth in the related Terms
Indenture, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Standard Provisions
Indenture, or any Terms Indenture, and may have such letter, numbers or
other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with the rules of any securities
exchange on which the Bonds may be listed, or as may, consistently
herewith, be determined by the officers of the Issuer executing such
Bonds, as evidenced by their execution of such Bonds. Any portion of the
text of any Bond may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Bond.
The definitive Bonds shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or
may be produced in any other manner permitted by any Terms Indenture or
the rules of any securities exchange on which the Bonds may be listed,
all as determined by the officers of the Issuer executing such Bonds, as
evidenced by their execution of such Bonds.
Section 2.02. FORM OF BOND.
The form of each Class of Bonds for a Series shall be that specified in
the Terms Indenture for such Series.
ARTICLE THREE: THE BONDS
Section 3.01. AMOUNT UNLIMITED; BONDS ISSUABLE IN SERIES AND CLASSES;
CERTAIN RELATED PROVISIONS.
The aggregate principal amount of Bonds which may be authenticated and
delivered under this Standard Provisions Indenture is unlimited.
The Bonds may, pursuant to the Standard Provisions Indenture and the
Terms Indenture, be issued in one or more Series, each of which Series
may be issued in one or more Classes which may include one or more
Classes of Compound Interest Bonds, and shall be designated generally as
the "Mortgage-Collateralized Bonds" of the Issuer, with such further
particular designations added or incorporated in such title for the Bonds
of any particular Series or Class as the Owner-Trustee may determine.
Each Bond shall bear upon the face thereof the designation so selected
for the Series to which it belongs. All Bonds of the same Series and
Class shall be identical in all respects except for the denominations
thereof. All Bonds of all Classes within one Series at any time
Outstanding (other than Compound Interest Bonds in such Series) shall be
identical except for differences among the Bonds of the different Classes
within such Series in Bond Interest Rates, priorities as to repayment of
principal, First Mandatory Principal Payment Dates and Stated Maturities.
All Bonds of a particular Series
issued under this Standard Provisions Indenture shall be in all respects
equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of
authentication and delivery all in accordance with the terms and
provisions of this Standard Provisions Indenture.
Each Series of Bonds shall be created by a Terms Indenture authorized by
the Owner-Trustee and establishing the terms and provisions of such
Series. The several Series may differ as between Series, in respect of
any of the following matters:
(1) designation of the Series;
(2) Accrual Date;
(3) the number of Classes and the maximum aggregate principal
amount of Bonds of each such Class which may be issued;
(4) the Bond Interest Rate for each Class;
(5) the First Mandatory Principal Payment Dates and the Stated
Maturities for each Class;
(6) the respective percentage of the Excess Cash (a) payable as
principal on the Bonds of such Series on each Payment Date and (b)
payable to the Issuer on each such Payment Date.
(7) Principal Priority Schedule and the basis for principal
payments on the Bonds of a Class;
(8) place or places for the payment of principal;
(9) denominations;
(10) Payment Dates;
(11) the Mortgage Collateral that will be included as part of
the Collateral;
(12) the amount, if any, to be deposited on the Delivery Date in
the Collection Account for such Series;
(13) the amount, if any, to be deposited on the Delivery Date in
the Supplemental Debt Service Fund for such Series;
(14) the amount, if any, to be deposited on the Delivery Date in
the Buy-Down Fund for such Series;
(15) the manner in which the Reserve Fund, if any, is to be
funded and the amount, if any, to be deposited on the Delivery
Date in the Reserve Fund for such Series;
(16) the amount, if any, to be deposited on the Delivery Date in
the Overcollateralization Fund for such Series;
(17) the manner in which the Other Funds, if any, are to be
funded and the amount, if any, to be deposited on the Delivery
Date in such Other Funds for such Series;
(18) the applicability of the special redemption provisions of
Article Eleven;
(19) the types of Insurance Policies required for the Pledged
Loans, if any, to be included as part of the Collateral for such
Series;
(20) the provisions for optional redemption of the Bonds of such
Series by the Issuer;
(21) the provisions, if any, for optional redemption of the
Bonds of such Series by the Bondholders;
(22) provisions with respect to the following terms for which
the definitions set forth in Article One hereof require or permit
further specification in the related Terms Indenture:
(a) "Assumed Reinvestment Rate";
(b) "Bonds which are not Compound Interest Bonds";
(c) "Bond Value";
(d) "Buy-Down Pledged Loans";
(e) "Collateral";
(f) "Collateral Value";
(g) "Compound Interest Bonds";
(h) "Cut-off Date";
(i) "Debt Service Funds";
(j) "Eligible Investments";
(k) "First Mandatory Principal Payment Date";
(l) "GPM Collateral";
(m) "GPM GNMA Certificate";
(n) "GPM Pledged Loans";
(o) "Initial Bond Value";
(p) "Initial Collateral Value";
(q) "Initial Overcollateralization Amount";
(r) "Maximum Collateral Value Factor";
(s) "Minimum Collateral Value Factor";
(t) "Mortgage Insurer";
(u) "Mortgage Bankruptcy Bond";
(v) "Other Mortgage Certificate";
(w) "Outstanding Bond Value";
(x) "Paying Agent";
(y) "Pool Insurance Insurer";
(z) "Prepayment Interest Bond";
(aa) "Principal Priority Schedule";
(bb) "Redemption Price";
(cc) "Regular Record Date";
(dd) "Reinvestment Income";
(ee) "Repurchase Bond";
(ff) "Schedule of Mortgage Collateral";
(gg) "Special Hazard Insurer";
(hh) "Special Redemption Bond Value";
(ii) "Special Redemption Date";
(jj) "Special Redemption Record Date"; and
(kk) "Trust Estate";
(23) any other provisions expressing or referring to the terms
and conditions upon which the Bonds of that Series are to be
issued under this Standard Provisions Indenture which are not in
conflict with the provisions of this Standard Provisions
Indenture.
In authorizing the issuance of any Series, the Issuer shall determine and
specify all matters in respect of the Bonds of such Series set forth in
clauses (1) through (23) inclusive, and shall also determine and specify
the forms of Bonds of such Series.
Section 3.02. DENOMINATIONS.
The Bonds of each Series shall be issuable as registered Bonds in the
denominations set forth in the related Terms Indenture and one Bond of
each Class of such Series in such denomination as may be necessary to
represent the remainder of the initial aggregate principal amount of the
Bonds of such Class of such Series.
Section 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Bonds shall be executed on behalf of the Issuer by the Owner-Trustee
not in its individual capacity but solely as owner-trustee under the
Deposit Trust Agreement.
Bonds bearing the manual or facsimile signatures of persons who were
Authorized Officers at any time the Authorized Officers of the
Owner-Trustee shall bind the Owner-Trustee, notwithstanding that such
individuals or any of them have ceased to be Authorized Officers prior to
the authentication and delivery of such Bonds or were not Authorized
Officers at the date of such Bonds.
At any time and from time to time after the execution and delivery of
this Standard Provisions Indenture and the
applicable Terms Indenture, the Issuer may deliver Bonds executed by the
Issuer to the Trustee for authentication; and the Trustee shall
authenticate and deliver such Bonds as provided in and subject to the
conditions set forth in this Standard Provisions Indenture and the
related Terms Indenture and not otherwise.
Unless otherwise provided in the applicable Terms Indenture, each Bond
shall be dated as of the date of its authentication, except that those
Bonds delivered on the Delivery Date shall be dated as of the Issue Date.
No Bond shall be entitled to any benefit under this Standard Provisions
Indenture or be valid or obligatory for any purpose, unless there appears
on such Bond a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of
one of its authorized officers, and such certificate upon any Bond shall
be conclusive evidence, and the only evidence, that such Bond has been
duly authenticated and delivered hereunder.
Section 3.04. TEMPORARY BONDS.
Pending the preparation of definitive Bonds, the Issuer may execute, and
upon Issuer Order, the Trustee shall authenticate and deliver temporary
Bonds which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any denomination, substantially of the tenor of
the definitive Bonds in lieu of which they are issued and with such
variations as the Authorized Officers executing such Bonds may determine,
as evidenced by their execution of such Bonds.
If temporary Bonds are issued, the Issuer will cause definitive Bonds to
be prepared without unreasonable delay. After the preparation of
definitive Bonds, the temporary Bonds shall be exchangeable for
definitive Bonds upon surrender of the temporary Bonds at the office or
agency of the Issuer to be maintained as provided in Section 9.02,
without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Bonds, the Issuer shall execute and the Trustee, at the
cost of the Issuer, shall authenticate and deliver in exchange therefor a
like principal amount of definitive Bonds of the same Series and Class of
authorized denominations. Until so exchanged the temporary Bonds shall
in all respects be entitled to the same benefits under this Standard
Provisions Indenture as definitive Bonds of the same Series and Class.
Section 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept a Bond Register in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide
for the registration of Bonds and the registration of transfers of
Bonds. The Trustee is hereby appointed "Bond Registrar" for the purpose
of registering Bonds and transfers of Bonds as herein provided.
If a Person other than the Trustee is appointed by the Issuer as Bond
Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of a Bond Registrar and of the location, and any change in
the location, of the Bond Register, and the Trustee shall have the right
to inspect the Bond Register at all reasonable times and to obtain copies
thereof and the Trustee shall have the right to rely upon a certificate
executed on behalf of the Bond Registrar by an Authorized Officer thereof
as to the names and addresses of the Holders of the Bonds and the
principal amounts and numbers of such Bonds.
Upon surrender for registration of transfer of any Bond at the office or
agency of the Issuer to be maintained as provided in Section 9.02, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferee, one or more new
bonds of any authorized denominations of the same Series and Class and of
a like aggregate principal amount.
No transfer, sale, pledged or other disposition of a Bond shall be made
to any employee benefit plan that is subject to the Employee Retirement
Income Securities Act of 1974, as amended ("ERISA"), or described in
Section 4975(e)(1) of the Code, or an entity whose underlying assets
include the assets of any such plan, unless the Holder and the Trustee
are provided with a certification and Opinion of Counsel which establish
to the
satisfaction of the Holder and the Trustee that such disposition will
not constitute a prohibited transaction under ERISA or Section 4975 of
the Code. The Seller or the Trustee may require that the prospective
transferee of a Holder of a Bond desiring to transfer any such Bond
certify to the Seller and the Trustee in writing the facts establishing
that such transferee is not a plan subject to ERISA or described in
Section 4975(e)(1) of the Code.
No transfer or sale of any Bond shall be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933,
as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is
to be made, the Seller may, and the Trustee shall, require an Opinion of
Counsel, which counsel may, if otherwise acceptable, be an employee of
the transferee or transferor, in form and substance satisfactory to the
Holder and the Trustee that such transfer may be made pursuant to an
exemption from said Act and laws or is being made pursuant to said Act
and laws; PROVIDED, HOWEVER, that no such Opinion of Counsel shall be
required in relation to transferee taking directly from the Issuer in
connection with the initial sale by the Bonds purchased by it from the
Holder. The costs of any of the foregoing certifications or Opinions of
Counsel shall not be charged to any of the Holder, the Trustee or the
Issuer.
(c) Each Person who has or who acquires an beneficial or other
interest in a Bond shall be deemed by the acceptance or acquisition of
such interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Trustee or its designee as its
attorney-in-fact to execute all instruments of transfer and to do all
other things necessary, and the rights of each Person acquiring such
interest in a Class 1-R Bond are expressly subject to the following
provisions:
(i) Each Person holding or acquiring such interest in a Class
1-β. ββββ shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No such interest in a Class 1-R Bond may be transferred
without the express written consent of the Trustee. The Trustee shall
consent to a proposed transfer of such interest in a Class 1-R Bond only
if the Trustee has been provided, in form and substance satisfactory to
it, the following:
(A) a statement under penalty of perjury proposed
transferee that such transferee is a Permitted Transferee and that
no purpose of the transfer is to impede the assessment or
collection of tax; and
(B) an express covenant by the proposed Transferee to be
bound by and to abide by the provisions of this Standard
Provisions Indenture and the related restrictions set forth on the
face of the Class 1-R Bond as the case may be.
In addition to requiring the above, the Trustee shall require an Opinion of
Counsel stating that the transfer will not result in the transfer of the Class
1-R bond to someone other than a Permitted Transferee.
(iii) Any attempted or purported transfer of such interest in a Class
Bond in violation of the provisions of this Section shall be absolutely null and
void and shall vest no rights in the purported transferee. The Trustee shall be
entitled to recover from any purported transferee of a Class 1-R Bond that was
in fact not a Permitted Transferee at the time such Class 1-R Bond was
registered in its name on the Certificate Register all payments made on such
Class 1-R Bond. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the prior Holder of Class 1-R Bond.
The Trustee is hereby authorized and directed to provide to the Internal Revenue
Service and to any Holder or transferor of a Class R Bond or any such other
person specified in Section 860E(e)(3) or (e)(6), a computation showing the
present value of the total anticipated excess inclusions with respect to the
Class 1-R Bond for periods after the transfer, to make available any other
information necessary for compliance with Section 860E(e) of the Code, and to
maintain records and information sufficient to make any calculations that maybe
be required pursuant to such section.
At the option of the Holder, Bonds may be exchanged for other Bonds of any
authorized denominations of the same Series
and Class and of the like aggregate principal amount, upon surrender of the
Bonds to be exchanged at such office or agency. Whenever any Bonds are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Bonds which the Bondholder making the exchange is
entitled to receive.
All Bonds issued upon any registration of transfer or exchange of Bonds shall be
the valid obligations of the Issuer, evidencing the same debt and entitled to
the same benefits under this Standard Provisions Indenture as the Bonds
surrendered upon such registration of transfer or exchange.
Every Bond presented or surrendered for registration of transfer or exchange
shall (if so required by the Issuer or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing with such signature guaranteed by a commercial bank or
trust company or by a member firm of a national securities exchange, and such
other documents as the Trustee may require.
No service charge shall be made to a Holder for any registration of transfer or
exchange of Bonds, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Bonds, other than exchanges
pursuant to Sections 3.04 and 10.06 not involving any transfer.
Section 3.06. MUTILATED, DESTROYED, LOST OR STOLEN BONDS.
If (i) any mutilated Bond is surrendered to the Trustee, or the Issuer
and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Bond, and (ii) there is delivered to
the Issuer and the Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to
the Issuer or the Bond Registrar that such Bond has been acquired by a
bona fide purchaser, the Issuer shall execute and upon its request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Bond, a new Bond of the same
Series, Class, tenor and principal amount, bearing a number not
contemporaneously outstanding; provided, however, that if any such
mutilated, destroyed, lost or stolen Bond shall have become or shall be
about to become due and payable, or shall have been selected or called
for redemption, instead of issuing a new Bond, the Issuer may pay such
Bond without surrender thereof, except that any mutilated Bond shall be
surrendered.
Upon the issuance of any new Bond under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Bond issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Bond shall constitute an original additional
contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Bond shall be at any time enforceable by
anyone, and shall be entitled to all of the benefits of this Standard
Provisions Indenture equally and proportionately with any and all other
Bonds of the same Series and Class duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Bonds.
Section 3.07. PAYMENT OF PRINCIPAL AND INTEREST; PRINCIPAL AND INTEREST
RIGHTS PRESERVED.
(a) Except for any Compound Interest Bonds included in a Series, the
Bonds of each Class of such Series shall bear interest at the Bond
Interest Rate for the Bonds of such Class of such Series, which interest
shall be due and payable on each Payment Date on the unpaid principal
amount of the Bonds of such Class of such Series determined as of the
close of business on the date specified in the related Terms Indenture,
commencing on the date specified in the related Terms Indenture and
continuing on each Payment Date thereafter until the entire unpaid
principal amount of the Bonds of such Class of such Series is paid,
whether by acceleration or otherwise, and (to the extent lawful and
enforceable) shall bear interest on overdue interest at the Bond Interest
Rate for the
Bonds of such Class of such Series.
(b) Until there is paid the entire unpaid principal amount of each Class
of Bonds of a Series which is not a Compound Interest Bond having an
earlier Stated Maturity than a particular Class of Compound Interest
Bonds, interest on such Compound Interest Bonds of such Series shall be
compounded at the Bond Interest Rate of such Compound Interest Bonds on
each Payment Date on the unpaid Accreted Value of such Compound Interest
Bonds determined as of the close of business on the date specified in the
related Terms Indenture, commencing on the date specified in the related
Terms Indenture, and continuing on each Payment Date thereafter. On the
Payment Date on which the entire unpaid principal amount of each Class of
Bonds of such Series having an earlier Stated Maturity than a particular
Class of Compound Interest Bonds is paid in full, any remaining portion
of the amount then payable on such Payment Date shall be paid as
interest on such Compound Interest Bonds of such Series and, to the
extent such amount is less than the amount of the interest accrued on
such Compound Interest Bonds since the immediately preceding Payment
Date, the difference shall be added to the Accreted Value of the Bonds of
such Class of such Series. Thereafter, such Compound Interest Bonds
shall bear interest at the Bond Interest Rate for such Compound Interest
Bonds which interest shall be due and payable on each Payment Date as
specified in the related Terms Indenture on the unpaid Accreted Value of
such Compound Interest Bonds determined as of the close of Business on
the date specified in the related Terms Indenture, until the entire
unpaid Accreted Value of such Compound Interest Bonds is paid, whether by
acceleration or otherwise, and (to the extent lawful and enforceable)
shall bear interest on overdue interest as the Bond Interest Rate for the
Bonds of such Class of such Series. Notwithstanding the foregoing, in
the event that each Class of Bonds of such Series having an earlier
Stated Maturity than a particular Class of Compound Interest Bonds are
paid in full and that the payment of principal and interest on the
Mortgage Collateral securing such Series is insufficient at that time to
pay the full amount of required interest on any Compound Interest Bond on
any Payment Date, the amount of interest which is not available shall be
added to the Accreted Value of such Compound Interest Bonds.
(c) Unless otherwise provided in the related Terms Indenture, the
principal of the Bonds of a Series shall be payable commencing on the
date specified in the related Terms Indenture, and continuing on each
Payment Date thereafter until the entire unpaid principal amount of the
Bonds of such Series is paid, in an amount equal to the sum of (i) the
Required Principal Payment and (ii) percentage, if any, of the Excess
Cash specified in the related Terms Indenture. All payments of principal
on the Bonds of a Series shall be applied to the Classes of such Bonds as
specified in the related Terms Indenture and shall be allocated on a
random lot, pro rata or other selection basis as specified in such Terms
Indenture. Monies in the Reserve Fund, the Overcollateralization Fund or
the Other Funds for such Series shall be withdrawn to the extent required
to make required payments of principal of and interest on the Bonds of
such Series and to pay in full any Class of Bonds of such Series by its
Stated Maturity.
(d) Interest and principal shall be payable by electronic transfer or by
check (subject to collection) mailed to the Person entitled thereto at
his address as it appears on the Bond Register, except for the final
payment due on Maturity of a Bond of a Series, which shall be made only
upon presentation and surrender of the Bond at the office or agency of
the Issuer maintained for that purpose as provided in Section 9.02. In
the case of any Bond upon which the final payment is due on the Maturity
of such Bond, the Issuer or, at the Issuer's request, the Trustee in the
name and at the expense of the Issuer, shall notify the Person entitled
thereto at his address as it appears on the Bond Register that such Bond
is to be paid in full. Such notice shall be mailed 10 days, and in any
event not later than five days, prior to the Payment Date on which the
final payment is to be made on such Bond and shall specify the place
where such Bond may be presented and surrendered for final payment.
(e) Interest and principal on the Bonds of a Series shall be payable
solely from the proceeds of the Trust Estate Granted in the related Terms
Indenture unless otherwise provided in such Terms Indenture Interest on
the Bonds of a Series will be computed on the basis of a 360-day year
consisting of 12 months of 30 days each.
(f) The Holders of the Bonds of a Class as of the Regular Record Date in
respect of a Payment Date shall be entitled to the interest accrued and
payable and principal payable on such Payment Date with respect to the
Bonds of such Class. Payments to such Holders shall be made in the
proportion which the unpaid principal
balance of the Bonds of such Class registered in the name of each such
Holder on such Regular Record Date bears to the aggregate unpaid
principal balance of all Bonds of such Class on such Regular Record Date.
Any such payments that are mailed and returned to the Paying Agent shall
be held for payment as herein provided at the office or agency of the
Trustee.
(g) If any Bond of a Series or portion thereof is called for redemption
on a Redemption Date or Special Redemption Date after the Regular Record
Date in respect of a Payment Date and on or before such Payment Date, and
notice of redemption has been mailed and funds for such redemption have
been duly provided, interest accrued to the date specified in the related
Terms Indenture for such Bonds shall be paid only against surrender of
the Bonds for redemption in accordance with said notice.
(h) Subject to the foregoing provisions of this Section, each Bond of a
Series delivered under this Standard Provisions Indenture and its related
Terms Indenture upon registration of transfer of or in exchange for or in
lieu of any other Bond shall carry the rights to unpaid interest and
principal that were carried by such other Bond.
Section 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Bond, the
Issuer, the Trustee and any agent of the Issuer or of the Trustee may
treat the Person in whose name any Bond is registered as the owner of
such Bond for the purpose of receiving payments of principal, premium, if
any, and interest on such Bond and for all other purposes whatsoever
(whether or not such Bond is overdue), and neither the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by
notice to the contrary.
Section 3.09. CANCELLATION.
All Bonds surrendered for payment, registration or transfer, exchange or
redemption shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The
Issuer may at any time deliver to the Trustee for cancellation any Bonds
previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and all Bonds so delivered shall
be promptly canceled by the Trustee. No Bonds shall be authenticated in
lieu of or in exchange for any Bonds canceled as provided in this
Section, except as expressly permitted by this Standard Provisions
Indenture. All canceled Bonds held by the Trustee shall be destroyed
unless the Issuer shall direct by an Issuer Order that they be returned
to it.
Section 3.10. LIMITED RIGHT TO SUBSTITUTE COLLATERAL
(a) On any Subsequent Delivery Date for any Series, the Issuer shall have
the right to pledge to the Trustee under this Standard Provisions
Indenture as security for the Bonds of such Series, in substitution for
any one or more items of Original Mortgage Collateral or Substitute
Mortgage Collateral securing such Series, one or more items of Substitute
Mortgage Collateral as long as each such item of Substitute Mortgage
Collateral has (i) an Outstanding Bond Value at least equal to the
Outstanding Bond Value of the item of Original Mortgage Collateral or
Substitute Mortgage Collateral for which such item of Substitute Mortgage
Collateral is substituted, in each case determined on the last preceding
Due Date with respect to such item of Mortgage Collateral before taking
into account payments received by the Trustee on such Due Date, and (ii)
an interest rate within one percentage point of, and a Maturity Date not
later than, the item of Original Mortgage Collateral securing such Series
as of the Delivery Date for such Series; provided, however, that only
GNMA Certificates may be substituted for GNMA Certificates; βββββββ Mac
PCs, FNMA MBSs or GNMA Certificates may be substituted for βββββββ Mac
PCs or FNMA MBSs; Mortgage Certificates and Pledged Loans may be
substituted for Pledged Loans; and Other Mortgage Certificates of equal
or better quality as the Other Mortgage Certificate for which it is
substituted may be substituted for Other Mortgage Certificates.
(b) The Issuer shall, to secure the Bonds of such Series, in exchange for
each such item of Original Mortgage Collateral or Substitute Mortgage
Collateral:
(1) deliver to the Trustee the Substitute Mortgage Collateral
which pursuant to such delivery shall become subject to the lien
of this Standard Provisions Indenture following the Subsequent
Delivery Date; and
(2) deliver to the Trustee cash, to be deposited by the Trustee in
the Collection Account with respect to such Series, in an amount
determined according to the following:
(A) determine the difference between (i) the Bond Value of
such Original Mortgage Collateral or Substitute Mortgage
Collateral being released from the lien of this Standard
Provisions Indenture and (ii) the Bond Value of such
Substitute Mortgage Collateral as of the Subsequent
Delivery Date; provided, however, that if such difference
is negative, the amount determined pursuant to this clause
(A) shall be zero;
(B) calculate the interest on the amount determined
pursuant to clause (A) which would have been earned, at the
rate equal to (i) the highest Bond Interest Rate minus (ii)
the Assumed Reinvestment Rate, from the Subsequent Delivery
Date to the immediately succeeding Due Date; and
(C) determine the amount equal to the sum of the amounts
determined pursuant to clauses (A) and (B), which amount is
the amount to be delivered to the Trustee pursuant to this
Section 3.10.
(c) Upon substitution in accordance with Sections 3.10(a) and 3.10(b),
all of the Issuer's right, title and interest to the item of
Substitute Mortgage Collateral shall be assigned to the Trustee
pursuant to Section 4.02(3) of this Standard Provisions Indenture, and
the Issuer shall receive (1) the item of Original Mortgage Collateral
or Substitute Mortgage Collateral for which the item of Substitute
Mortgage Collateral was substituted, (2) all Collateral Proceeds
received by the Trustee on such item of Original Mortgage Collateral
or Substitute Mortgage Collateral on the Due Date immediately prior to
the Subsequent Delivery Date, (3) all amounts deposited in the
Collection Account with the Trustee with respect to such item of
Mortgage Collateral on the Delivery Date of such item of Original
Mortgage Collateral or Substitute Mortgage Collateral if the
Subsequent Delivery Date is prior to the first Payment Date and (4)
any investment earnings on such Collateral Proceeds and such amounts
deposited in the Collection Account. The Issuer also shall deposit
any required amounts relating to the item of Substitute Mortgage
Collateral into the Debt Service Funds, the Reserve Fund, the
Overcollateralization Fund or the Other Funds hereunder and shall be
entitled to receive any amounts on deposit in any such fund or account
relating to the item of Original Mortgage Collateral or Substitute
Mortgage Collateral for which the item of Substitute Mortgage
Collateral is being substituted.
(d) The Trustee shall also receive, not later than the time of delivery
of the item of Substitute Mortgage Collateral, a certificate of a firm of
Independent certified public accountants of national reputation
acceptable to the Trustee, pursuant to Section 4.01(6) of this Standard
Provisions Indenture, stating the fair value of the item of Substitute
Mortgage Collateral, verifying the calculation of the Outstanding Bond
Value of such item of Substitute Mortgage Collateral and the Outstanding
Mortgage Collateral Amount of Substitute Mortgage Collateral or Original
Mortgage Collateral for which it is substituted, and the amount of
Principal Prepayments, if any, with respect to such item of Substitute
Mortgage Collateral since the immediately prior Due Date and verifying
the amount, if any, required to be deposited in the Debt Service Funds,
the Reserve Fund, the Overcollateralization Fund or the Other Funds for
such Series as the result of such substitution and that such substitution
will not lengthen the Stated Maturity of any Class of Bonds of such
Series; an Authorized Officer's Certificate of the Issuer pursuant to
Section 4.02(9) of this Standard Provisions Indenture; an Opinion of
Counsel, dated the date of delivery of the item of Substitute Mortgage
Collateral, pursuant to Section 4.02(16) of this Standard Provisions
Indenture; and, to the extent that any item of Substitute Mortgage
Collateral substituted for an item of Original Mortgage Collateral is an
item of GPM Collateral, a certificate of a firm of Independent certified
public accountants of national reputation acceptable to the Trustee
stating that such firm has verified that the Issuer's calculations show
that, in the event of Principal Prepayments on all Mortgage Collateral
securing such Series which is not GPM Collateral, the principal and
interest payments on the remaining
Mortgage Collateral securing such Series will be sufficient to pay the
principal and interest on the Bonds of such Series in accordance with
Section 3.07. The documents required pursuant to the above-referenced
Standard Provisions Indenture provisions are hereby deemed qualified
to the extent said provisions are inapplicable to the substitution of
the item of Substitute Mortgage Collateral.
(e) Notwithstanding any other provision of this Section to the contrary,
any item of Substitute Mortgage Collateral which is a Pledged Loan and
which is substituted for an item of Mortgage Collateral which is a
Pledged Loan shall meet the following additional conditions: (1) such
Pledged Loan must have a Loan-to-Value Ratio which is equal to or lower
than the Loan-to-Value Ratio of the Pledged Loan for which it is
substituted; (2) the Mortgaged Property securing such Pledged Loan must
be the primary residence of the Mortgagor unless the Mortgaged Property
securing the Pledged Loan for which it is substituted is either investor
owned or a second residence in which case such Pledged Loan may be
secured by a Mortgaged Property of comparable status; (3) such Pledged
Loan may not be a Buy-Down Pledged Loan if substituted for a Pledged Loan
which is a Pledged Loan on which principal and interest is paid on a
level debt service basis; (4) such Pledged Loan must be covered by a
Primary Mortgage Insurance Policy and an Excess Coverage Mortgage
Insurance Policy securing such Pledged Loan 100% against any loss
sustained by reason of nonpayment the Mortgagor if the Pledged Loan for
which is it substituted has similar coverage; (5) such Pledged Loan may
not be secured by a mortgage or deed of trust on a condominium if
substituted for a Pledged Loan secured by a mortgage or deed of trust on
a single family attached or single family detached home; (6) such Pledged
Loan may not be secured by a mortgage or deed of trust on a single-family
attached home if substituted for a Pledged Loan secured by a mortgage or
deed of trust on a single-family detached home; and (7) such Pledged Loan
must be covered by a Primary Mortgage Insurance Policy or a combination
of a Primary Mortgage Insurance Policy and an Excess Coverage Mortgage
Insurance Policy insuring such Pledged Loan 100% against any loss
sustained by reason of non-payment by the Mortgagor if the Pledged Loan
for which it is substituted has similar coverage. An Authorized Officer
shall certify to the Trustee that these additional conditions are
satisfied.
ARTICLE FOUR: AUTHENTICATION AND DELIVERY OF BONDS
Section 4.01. GENERAL PROVISIONS.
At any time after the execution and delivery of this Standard Provisions
Indenture, Series 1 Bonds may from time to time be executed by the Issuer
and delivered to the Trustee for authentication and thereupon the same
shall be authenticated and delivered by the Trustee upon Issuer Request
and upon compliance with the conditions of Section 4.02, and upon receipt
by the Trustee of the following:
(1) an Issuer Order authorizing the execution, authentication
and delivery of the Bonds and specifying the Classes of the Bonds
and their respective Stated Maturities of principal and the
principal amounts and Bond Interest Rates of each Class of the
Bonds to be authenticated and delivered;
(2) the Terms Indenture, accompanied by an Issuer order
authorizing the Terms Indenture, designating the Bonds to be
created and prescribing, consistent with the applicable provisions
of this Indenture, the terms and provisions relating to the Bonds;
(3) either (i) an officer's certificate of the Depositor
attesting to the due authorization, approval or consent of any
governmental body or bodies, at the time having jurisdiction in
the premises, together with an Opinion of Counsel that the Trustee
is entitled to rely thereon and that the authorization, approval
or consent of no other governmental body is required for the valid
issuance of the Bonds, or (ii) an opinion of Counsel that no such
authorization, approval or consent of any governmental body is
required except for such registrations as are required under the
Securities Act of 1933 and the "Blue Sky", securities and real
estate syndication laws of any State;
(4) an Opinion of Counsel addressed to the Trustee to the effect
that:
(i) all instruments furnished to the Trustee in connection
with such Bonds conform in all material respects to the
requirements of this Standard Provisions Indenture and
constitute sufficient authority hereunder for the Trustee
to authenticate and deliver the Bonds then applied for;
(ii) all conditions precedent provided for in this
Standard Provisions Indenture relating to the
authentication and delivery of the Bonds then applied
for have been complied with by the Issuer in accordance
with the provisions of the related Terms Indenture;
(iii) all laws and requirements with respect to the form
and execution by the Issuer of the related Terms Indenture
and the execution and delivery by the Issuer of the Bonds
then applied for have been complied with;
(iv) the Owner-Trustee has the corporate power to execute
and deliver the Deposit Trust Agreement and has duly taken
all necessary corporate action for those purposes;
(v) the Deposit Trust Agreement is the valid, legal and
binding agreement of the Owner-Trustee (in its individual
capacity), enforceable in accordance with its terms,
subject to bankruptcy, reorganization, insolvency and other
laws affecting the enforcement of creditors rights
generally and general principles of equity (regardless of
whether such enforceability is considered in a Proceeding
in equity or at law); the Trust is a trust created under
the laws of the state specified in the Deposit Trust
Agreement; and the issuance of the Bonds is in conformity
with the terms of and duly authorized by the Deposit Trust
Agreement;
(vi) the Owner-Trustee has the power under the Deposit
Trust Agreement to execute and deliver the related Terms
Indenture (and, in the case of the first Series to be
authenticated and delivered hereunder, this Standard
Provisions Indenture), and to issue such Bonds and has
duly taken all necessary action for those purposes; and
(vii) this Standard Provisions Indenture is, and the
related Terms Indenture as executed and delivered and the
Bonds then applied for, when issued, delivered,
authenticated and paid for, will be the valid legal and
binding obligations of the Issuer enforceable in accordance
with their terms, subject to bankruptcy, reorganization,
insolvency and other laws affecting the enforcement of
creditors' rights generally and to general principles of
equity (regardless of whether such enforceability is
considered in a Proceeding in equity or at law);
(5) an Authorized Officer's Certificate stating that the Issuer is
not in default under this Standard Provisions Indenture and that
the issuance of the additional Bonds applied for will not result
in a breach of any of the terms, conditions or provisions of, or
constitute a default under, the Deposit Trust Agreement,
indenture, mortgage, deed of trust or other agreement or
instrument to which the Issuer is a party or by which it is bound,
or any order of any court or administrative agency entered in any
Proceeding to which the Issuer is a party or by which it may be
bound or to which it may be subject; and that all conditions
precedent provided in this Standard Provisions Indenture relating
to the authentication and delivery of the additional Bonds applied
for have been complied with;
(6) a certificate of a firm of Independent certified public
accountants of national reputation acceptable to the Trustee (i)
stating the fair value of the Mortgage Collateral securing such
Series and any securities contributed to the Supplemental Debt
Service Fund, the Buy-Down Fund, the Reserve Fund,
the Overcollateralization Fund or the Other Funds for such
Series assigned to the Trustee as the basis for the
authentication and delivery of the Bonds, (ii) stating that
they have confirmed the accuracy of certain data set forth by
them in such certificate contained on the computer tape or
written copy furnished by the Issuer for the Pledged Loans and
the Mortgage Certificates (the "Mortgage Collateral Data") by
comparing such data to information contained in mortgage loan
files furnished by the Issuer and in such other sources as
shall be specified by them in such certificate (iii) confirming
the Initial Outstanding Mortgage Collateral Amount for each
item of the Mortgage Collateral securing such Series by
reference to such sources as shall be specified by them, and
(v) confirming that they have performed the following
procedures (which do not constitute an examination in
accordance with generally accepted auditing standards):
(A) they have verified that the data used in the calculations
described in (B) through (J) below was accurately taken from the
Mortgage Collateral Data file referred to in (ii) above;
(B) using the assumptions and methodology derived from the
definition of "Initial Bond Value" in this Standard Provisions
Indenture and set forth in detail in such certificate, they have
recomputed the Initial Bond Value for each item of Mortgage
Collateral securing such Series and found each recomputation to be
in agreement with the Issuer's calculation thereof;
(C) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have recomputed the required amount to be
deposited on the Delivery Date in the Supplemental Debt Service
Fund for such Series and found such recomputation to be in
agreement with the Issuer's calculation thereof;
(D) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have recomputed the required amount to be
deposited on the Delivery Date in the Buy-Down Fund for such
Series and found such recomputation to be in agreement with the
Issuer's calculation thereof;
(E) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have tested the clerical accuracy and
methodology of the Issuer's calculations used in calculating the
required amounts to be deposited, if any, on the Delivery Date in
the Overcollateralization Fund for such Series;
(F) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have tested the clerical accuracy and
methodology of the Issuer's calculations used in calculating the
required amounts to be deposited on the Delivery Date in the Other
Funds for such Series;
(G) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have tested the clerical accuracy and
methodology of the Issuer's calculations used in calculating the
amount to be deposited in the Collection Account for such Series
during each Due Period with respect to (i) the principal and
interest due and payable on the Mortgage Collateral securing such
Series, and (ii) transfers from the Supplemental Debt Service
Fund, the Buy-Down Fund, the Reserve Fund, the
Overcollateralization Fund and the Other Funds for such Series
(based on the assumptions set forth in such certificate) on or
prior to each Payment for such Series;
(H) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have recomputed the amount to be deposited, if
any, in the Collection Account for such Series on the Delivery
Date pursuant to Section 4.02(17) below and found such
recomputation to be in agreement with the Issuer's calculation
thereof;
(I) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have recomputed the Reinvestment Income on each
portion of the Trust Estate for such Series which can be earned in
each Due Period through the investment of the amounts described in
paragraphs (G) and (H) above at the applicable Assumed
Reinvestment Rates and based upon such assumptions with respect to
the date of receipt and investment of payments on the Mortgage
Collateral securing such Series as shall be specified in such
certificate;
(J) using the assumptions and methodology derived from this
Standard Provisions Indenture and described in detail in such
certificate, they have recomputed the amount of principal of and
interest on the Bonds of such Series which would be payable on
each Payment Date in accordance with the terms hereof and of such
Bonds (assuming no Principal Prepayments on the Mortgage
Collateral securing such Series and receipt of payments and the
reinvestment thereof as shown in the Issuer's calculations
described in paragraphs (G), (H) and (I) above); and
(vi) based upon the above-specified procedures, such firm has
determined that:
(A) the Initial Bond Value for each category of the Mortgage
Collateral securing such Series specified in such certificate does
not exceed the maximum amount thereof permitted by the terms of
this Standard Provisions Indenture and the related Terms Indenture
and the aggregate Initial Bond Values for the Mortgage Collateral
securing such Series, together with the amount required to be
deposited to the Collection Account for such Series pursuant to
Section 4.02(17)(c) hereof, are at least equal to the principal
amount of the Bonds of such Series being issued on the Delivery
Date;
(B) for each Due Period, the aggregate of the amounts set forth in
the Issuer's calculations described in clauses (v)(G), (v)(H) and
(v)(I) above equals or exceeds, without giving effect to the
Excess Cash, the aggregate amount of principal of and interest on
the Bonds of such Series payable on the following Payment Date, as
set forth in the Issuer's calculations described in clause (v)(J)
above;
(C) the calculations set forth in clauses (v)(A) through (v)(J)
above, inclusive, show the Bonds of such Series will be retired by
their Stated Maturity assuming no Principal Prepayment and without
giving effect to the Excess Cash;
(D) to the extent GPM Collateral is not valued on a level debt
service basis, the calculations set forth in clauses (iv)(A)
through (iv)(J) above show that, in the event of Principal
Prepayments on all Mortgage Collateral securing such Series which
is not GPM Collateral so valued, the principal and interest
payments on the remaining Mortgage Collateral securing such Series
will be sufficient to pay the principal and interest on the Bonds
of such Series in accordance with the terms of this Standard
Provisions Indenture and the related Terms Indenture; and
(7) such other documents as the Trustee may reasonably require.
Section 4.02. SECURITY FOR BONDS.
Series No. 1 Bonds may be executed by the Issuer and delivered to the
Trustee for authentication and thereupon the same shall be authenticated
and delivered to the Issuer by the Trustee upon Issuer Order and upon
delivery by the Issuer to the Trustee, and receipt by the Trustee of the
following:
(1) Back-up Servicing Agreement. Evidence of the execution of the Back-up
Servicing Agreement, if any, with respect to such Series.
(2) Assignment of Mortgage Certificates. The assignment of all of the
Issuer's right, title and interest in and to Mortgage Certificates
securing such Series having aggregate Initial Bond Values, together with
the aggregate Initial Bond Values of the Pledged Loans securing such
Series, which, when taken together with the deposit required pursuant to
Section 4.02(17)(c), are at least equal to the original principal amount
of the Bonds of such
Series. The Trustee shall use its best efforts to cause each such
Mortgage Certificate to be registered in the name of the Trustee so that
the Trustee shall be the holder of record thereof on or prior to the last
Business Day of the month immediately preceding the Issue Date. In the
event the Trustee is not the holder of record on such date, the Trustee
shall cause each such Mortgage Certificate to be registered in the name
of the Trustee on or prior to the last Business Day of the month in which
the Issue Date occurs and the Issuer shall cause a deposit to be made in
the Collection Account in accordance with Section 4.02(17)(b).
(3) Assignment of Pledged Loans. The assignment of all of the Issuer's
right, title and interest in and to the Pledged Loans securing such
Series having aggregate Initial Bond Values, together with the aggregate
Initial Bond Values of the Mortgage Certificates securing such Series,
which, when taken together with the deposit required pursuant to Section
4.02(17)(c), are at least equal to the principal amount of the Bonds of
such series together with the related Loan Documents. Unless otherwise
set forth in the Terms Indenture, the Trustee shall cause each such
Pledged Loan to be recorded in the name of the Trustee (or its nominee)
on or prior to the last Business Day of the month immediately preceding
the Issue Date for such Series.
(4) Supplemental Debt Service Fund. With respect to each item of GPM
Collateral securing such Series valued on a level debt service basis in
calculating its Initial Bond Value, evidence of funding of the
Supplemental Debt Service Fund for such Series in the form of cash,
Certificates of Deposit or Letters of Credit in an amount, if any,
together with Reinvestment Income thereon at the applicable Assumed
Reinvestment Rate with respect to such item of GPM Collateral, sufficient
to pay the greater of (a) the aggregate remaining Deficiency with respect
to such item of GPM Collateral together with Reinvestment Income thereon
at the applicable Assumed Reinvestment Rate (computed on a Due Period
basis) or (b) the amount,if any, by which the Initial Bond Value of such
item of GPM Collateral (calculated by valuing the scheduled payments on
such item of GPM Collateral on a level debt service basis) exceeds the
Initial Outstanding Mortgage Collateral Amount of such item of GPM
Collateral. The Issuer will be required to value all or a portion of the
GPM Collateral securing such Series on a level debt service basis if it
is determined that the payments of principal and interest on the Mortgage
Collateral securing such Series may be insufficient to meet debt service
requirements on each Class of Bonds of such Series which is not a
Compound Interest Bond in accordance with Section 3.07. Such
determination shall be made prior to the Delivery Date for such Series.
(5) Buy-Down Fund. Evidence of funding of the Buy-Down Fund for such
Series in the form of cash, Certificates of Deposit or Letters of Credit
in an amount, together with Reinvestment Income thereon at the applicable
Assumed Reinvestment Rate, sufficient to pay the aggregate remaining
Shortfall with respect to each Buy-Down Pledged Loan securing such Series
together with Reinvestment Income thereon at the applicable Assumed
Reinvestment Rate (computed on a Due Period basis).
(6) Reserve Fund. Evidence of funding the Reserve Fund for such Series in
the form of cash, Certificates of Deposit or Letters of Credit in an
amount specified in the related Terms Indenture.
(7) Overcollateralization Fund. Evidence of funding of the
Overcollateralization Fund for such Series in the form of cash,
Certificates of Deposit or Letters of Credit in an amount specified in
the related Terms Indenture.
(8) Other Funds. Evidence of funding of the Other Funds for such Series
described in the related Terms Indenture in the form of cash,
Certificates of Deposit or Letters of Credit in an amount specified in
the related Terms Indenture.
(9) Certificate of the Issuer. An Authorized Officer's Certificate from
the Issuer, dated as of the date of the Issuer Order, to the effect that,
in the case of each Mortgage Certificate or Pledged Loan securing such
Series and immediately prior to the delivery thereof on the Delivery Date
for such Series:
(a) The Issuer is the pledgee or owner of such Mortgage
Certificate or Pledged Loan;
(b) The Issuer has acquired, or acquired its security interest in,
such Mortgage Collateral in good faith without notice of any
adverse claim;
(c) The Issuer has not assigned any interest or participation in
such Mortgage Collateral (or, if any such interest or
participation has been assigned, it has been released);
(d) The Issuer has full right, and the Deposit Trust Agreement
authorizes the Owner-Trustee on behalf of the Issuer, to Grant a
security interest in and assign and pledge such Mortgage
Collateral to the Trustee;
(e) The Special Hazard Insurance Policy, if required, is in effect
with respect to such Pledged Loan;
(f) The Mortgage Bankruptcy Bond, if required, is in effect with
respect to such Pledged Loan;
(g) The Prepayment Interest Bond, if required, is in effect with
respect to such Pledged Loan;
(h) The Repurchase Bond, if required, is in effect with respect to
such Pledged Loan;
(i) With respect to each such βββββββ Mac PC, FNMA MBS or Other
Mortgage Certificate, all payments of principal of and interest on
such βββββββ Mac PC, FNMA MBS or Other Mortgage Certificate
required to be made through the month preceding the month in which
the Delivery Date occurs have been made;
(j) With respect to each such βββββββ Mac PC, FNMA MBS or Other
Mortgage Certificate the information set forth with respect to
such βββββββ Mac PC, FNMA MBS or Other Mortgage Certificate in the
Schedule of Mortgage Collateral for the Bonds of such Series is
correct; and
(k) With respect to each such Pledged Loan, each of the
requirements for Pledged Loans securing such Series set forth in
the Terms Indenture for such Series is satisfied.
(10) Certificate of the Servicer of a Pledged Loan. To the extent
requested by the Issuer, an Officers' Certificate from each Servicer of a
Pledged Loan securing such Series, dated as of the date of the Issuer
Order for such Series, as required by the applicable Servicing Agreement.
(11) Certificate as to the Servicer of a GNMA Certificate. An Authorized
Officer's Certificate of the Issuer, or the Servicer, dated as of the
date of the Issuer Order, to the effect that, in the case of each GNMA
Certificate securing such Series and immediately prior to the delivery
thereof to the Trustee:
(a) There are no defaults by the Servicer in complying with the
terms of such GNMA Certificate, and all payments of principal of
and interest on such GNMA Certificate theretofore required to be
made through the month preceding the month in which the Delivery
Date occurs have been made;
(b) The information set forth with respect to such GNMA
Certificate in the Schedule of Mortgage Collateral for such Series
is correct; and
(c) No event of default by the Servicer has occurred under the
guaranty agreement between the Servicer and GNMA pursuant to which
such GNMA Certificate was issued and all preconditions to issuance
of such GNMA Certificate pursuant to such guaranty agreement were
met prior to its issuance.
(12) Deposit to the Supplemental Custodial Reserve Fund. Evidence of a
deposit to the Supplemental Custodial Reserve Fund for such Series equal
to the amount required by Section 12.08 if the Delivery Date of the Bonds
of such Series is after the day of the month on which the Trustee
receives the monthly deposits from the Pledged Loans securing such
Series.
(13) Certificate of Mortgage Insurer. An Officers' Certificate from the
Mortgage Insurer, dated as of the Issuer Order, to the effect that, a
Primary Mortgage Insurance Policy is in effect with respect to each
Pledged Loan
securing such Series requiring such coverage (indicating the coverage
afforded by each such policy), and an Excess Coverage Mortgage Insurance
Policy, is in effect with respect to each Pledged Loan securing such
Series requiring such coverage.
(14) Certificate of Depositor. An Officer's Certificate from the
Depositor, dated as of the date of the Issuer Order, to the effect that,
in the case of each item of Mortgage Collateral owned by the Depositor,
immediately prior to the delivery thereof to the Trustee:
(a) the Depositor is the owner or pledgee of such mortgage
collateral;
(b) the Depositor has not assigned any interest or
participation in such Mortgage Collateral other than to the Issuer
(or, if any such interest or participation has been assigned, it
has been released); and
(c) the Depositor has the full right to Grant a security
interest and assign and pledge such Mortgage Collateral to the
Issuer.
(15) Opinion of Counsel. An Opinion of Counsel of the Issuer, dated not
earlier than the date of the Issuer Order, to the effect that:
(a) This Standard Provisions Indenture and the Terms Indenture for
such Series have been duly qualified under the Trust Indenture Act
or that no qualification of such Terms Indenture under the Trust
Indenture Act is necessary;
(b) The documents which have been or are therewith delivered to
the Trustee with respect to such Series conform to the
requirements of this Standard Provisions Indenture and the related
Terms Indenture and the Bonds applied for may be lawfully
authenticated and delivered and all conditions precedent provided
for herein or therein relating to such authentication and delivery
have been complied with;
(c) The Issuer has the power and authority under the Deposit Trust
Agreement to assign, pledge and deposit the Trust Estate with the
Trustee as security for such Series; and
(d) Each Mortgage Certificate or Pledged Loan constituting part of
the Trust Estate for such Series has been duly and validly
assigned to the Trustee and each Mortgage Certificate either has
been registered in the name of the Trustee or has been delivered
to the Trustee for registration in the name of the Trustee and all
steps required by the applicable rules of GNMA, βββββββ Mac, FNMA
or the issuer of the Other Mortgage Certificates other than
registration by the applicable transfer agent thereof, necessary
to permit the Mortgage Certificates that constitute a part of the
Trust Estate for such Series to be duly and validly registered in
the name of the Trustee have been taken.
(16) Deposits to Collection Account. With respect to such Series unless
otherwise provided in the related Terms Indenture: (a) evidence of a
deposit to the Collection Account for such Series in an amount equal to
one month's interest payments on the βββββββ Mac PCs securing such Series
at the interest rate thereon for the unpaid principal amount thereof plus
the applicable number of days' interest on such amount at the Assumed
Reinvestment Rate for the Collection Account if the Delivery Date is
after the 20th day of the month; (b) in the event that the Trustee is not
the holder of record of any Mortgage Certificate on or prior to the last
Business Day of the month immediately preceding the Issue Date for such
Series as described under subparagraph (2) of this section, evidence of a
deposit to the Collection Account in an amount equal to (i) with respect
to Mortgage Certificates other than βββββββ Mac PCs, the principal and
interest payment on such Mortgage Certificate on the Due Date thereof in
the month in which the Issue Date occurs and (ii) with respect to βββββββ
Mac PCs, an amount equal to the principal and interest payment on the Due
Date in the month immediately following the month in which the Issue Date
occurs, plus in each case the applicable number of days' interest thereon
at the
applicable Assumed Reinvestment Rate for the Collection Account; (c)
evidence of a deposit sufficient, when taken together with Reinvestment
Income thereon at the applicable Assumed Reinvestment Rate, to pay on the
first Payment Date any amount required to be paid based upon the
difference between the aggregate amount of Bonds of such Series issued on
the Delivery Date and the aggregate Initial Bond Values of the Mortgage
Collateral securing such Series plus interest thereon at the highest Bond
Interest Rate of such Series to such first Payment Date; and (d) evidence
of the deposit to the Collection Account of all amounts received by the
Trustee in respect of the Mortgage Collateral prior to the Delivery Date
(less any amounts representing servicing fees, insurance premiums and
other fees to be deposited into the Supplemental Custodial Reserve Fund
or otherwise applied), provided such amounts have been pledged to secure
the Bonds of such Series hereunder plus the applicable number of days'
interest thereon at the Assumed Reinvestment Rate for the Collection
Account if the Delivery Date is after the day of the month that
Reinvestment Income is to begin to accrue.
(17) Reinvestment Agreements. Delivery to the Trustee of any Reinvestment
Agreements with respect to such Series specified in a Schedule to the
related Terms Indenture or one or more replacement reinvestment
agreements having substantially the same terms as the reinvestment
agreement it replaces.
(18) Mortgagor Bankruptcy Bond, Prepayment Interest Bond, Repurchase
Bond, Pool Insurance Policy and Special Hazard Insurance Policy. Evidence
of the execution and delivery of the Mortgagor Bankruptcy Bond, the
Prepayment Interest Bond and the Repurchase Bond, if any, and of the
issuance of the Pool Insurance Policy and Special Hazard Insurance
Policy, if any, with respect to such Series.
(19) Deposit to the Prepayment Reserve Account. Evidence of a deposit to
the Prepayment Reserve Account for such Series, in an amount required by
each Rating Agency rating the Bonds of such Series.
(20) Other Documents. Such other documents, certificates, instruments or
opinions as may be required by the terms of the Terms Indenture creating
such Series of Bonds.
ARTICLE FIVE: SATISFACTION AND DISCHARGE
Section 5.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Standard Provisions Indenture shall cease to be of further effect
with respect to a Series except as to (i) rights of registration of
transfer and exchange, (ii) substitution of apparently mutilated,
destroyed, lost or stolen Bonds, (iii) rights of Bondholders of such
Series to receive payments of principal thereof and interest thereon,
(iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of Bondholders of such Series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or
any of them, and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Standard Provisions Indenture with respect to such
Series, when:
(1) either:
(a) all Bonds of such Series theretofore authenticated and
delivered (other than (i) Bonds which have been destroyed,
lost or stolen, and which have been replaced, or paid as
provided in Section 3.06, and (ii) Bonds for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in
Section 9.03) have been delivered to the Trustee for
cancellation; or
(b) all Bonds of such Series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice for redemption by the
Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee, in trust for
such purpose, an amount sufficient to pay and discharge the entire
indebtedness on such Bonds not theretofore delivered to the
Trustee for cancellation, for principal, for premium, if any, and
for interest to the date of such deposit (in the case of Bonds
which have become due and payable), or to the Maturity or to the
date specified in the event of Redemption or Special Redemption,
as the case may be, provided, however, that (i), (ii) and (iii)
above shall be inapplicable if an election to act in accordance
with the provisions of Section 6.05 shall have been made and not
rescinded;
(2) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer with respect to such Series; and
(3) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Standard Provisions Indenture
with respect to the Bonds of such Series have been complied with.
Notwithstanding the satisfaction and discharge of this Standard
Provisions Indenture, the obligations of the Issuer to the Trustee
under Section 7.07 and of the Trustee to the Bondholders under
Section 5.02 shall survive.
Section 5.02. APPLICATION OF TRUST MONEY.
All moneys deposited with the Trustee pursuant to Section 5.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Bonds of the applicable Series and this Standard Provisions Indenture, to
the payment, either directly or through any Paying Agent, as the Trustee
may determine, to the Persons entitled thereto, of the principal,
premium, if any, and interest for the payment of which such money has
been deposited with the Trustee; but such money need not be segregated
from other funds of the same Series except to the extent required herein
or by law.
ARTICLE SIX: REMEDIES
Section 6.01. EVENTS OF DEFAULT.
"Event of Default" with respect to any Series wherever used herein, means
any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any principal of or interest on any
Bond of such Series when the same becomes due and payable and such
default shall continue for a period of five days; or
(2) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Standard Provisions Indenture or in
the related Terms Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is
elsewhere in this Section or Article Nine specifically dealt
with), and continuance of such default or breach for a period of
60 days after there shall have been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Bonds of such Series, a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(3) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Issuer a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Issuer under the Federal Bankruptcy Code or any other applicable
Federal or state law, or appointing a receiver, liquidator,
assignee, or sequestrator (or other similar official) of the
Issuer or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90
consecutive days; or
(4) the institution by the Issuer of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution
of bankruptcy or insolvency proceedings against it, or the filing
by it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other similar
applicable Federal or state law, or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee or sequestrator (or other similar
official) of the Issuer or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
action by the Issuer in furtherance of any such action.
Section 6.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to the Bonds of a Series occurs and
is continuing and no election to act in accordance with the provisions of
Section 6.05 shall have been made and not rescinded, then and in every
such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Bonds of such Series (voting as a group with
respect to such Series) may declare the principal of all the Bonds of
such Series affected thereby to be immediately due and payable, by a
notice in writing to the Issuer (and to the Trustee if given by
Bondholders), and upon any such declaration such principal shall become
immediately due and payable. Notwithstanding the foregoing, if an Event
of Default with respect to the Bonds of a Series occurs and is continuing
solely as the result of an order or judgment arising out of a Proceeding,
which order or judgment prevents the application by the Trustee, as
provided in this Standard Provisions Indenture, of the proceeds of one or
more Pledged Loans or Mortgage Certificates included in the Trust Estate
for such Series, the Trustee may declare to be immediately due and
payable by lot among all Classes of Bonds of such Series, by notice in
writing to the Issuer, and upon any such declaration there shall become
due and payable, Bonds of such Series in a principal amount equal to the
Outstanding Bond Values of such Pledged Loans or Mortgage Certificates.
Such declaration and any other remedial action in connection therewith by
the Trustee shall be the sole remedy for the Holders of Bonds of such
Series upon the happening of such occurrence.
At any time after such a declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Bonds of
the Series which has been declared due and payable as herein provided, by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) (A) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue installments of interest and principal on
all Bonds of such Series,
(ii) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on the Bonds
of such Series at the Bond Interest Rate for such Series,
and
(iii) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(B) all Events of Default with respect to a Series, other
than the non-payment of the interest or
principal of Bonds of such Series which have become due
solely by such acceleration, have been cured or waived as
provided in Section 6.15; or
(2) an election is made to act in accordance with the provisions
of Section 6.05 with respect to the Event of Default with respect
to the Bonds of such Series which gave rise to such declaration.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Issuer covenants that if default is made in the payment of any
principal of or interest on any Bond of any Series when such principal
and interest becomes due and payable, the Issuer will, upon demand of
the Trustee, pay to it, for the benefit of the Holder of such Bond of
such Series, but only from the Trust Estate securing the Bonds of such
Series, the whole amount then due and payable on such Bond for principal
and interest, with interest upon the overdue principal and, to the extent
that payments of such interest shall be legally enforceable, upon overdue
installments of interest, at the Bond Interest Rate for such Bond, and,
in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as Trustee of an express trust, may
institute a Proceeding for the collection of the sums so due and unpaid,
and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon the Bonds
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the Trust Estate securing the Bonds, wherever
situated; provided, however, that none of the Trustee, the Owner-Trustee
in its individual capacity nor any holder of any beneficial interest in
the Trust, nor any of their respective partners, beneficiaries, agents,
officers, director, employees or successors or assigns shall be
personally liable for any amounts payable under the Bonds or this
Indenture.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of
the Bondholders by such appropriate Proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Standard
Provisions Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right
vested in the Trustee by this Standard Provisions Indenture or by law.
In case there shall be pending Proceedings relative to the Issuer or any
other obligor upon the Bonds under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have
been appointed for or taken possession of the Issuer or its property or
such other obligor, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Bonds of any
Series, or to the creditors or property of the Issuer or such other
obligor, the Trustee, irrespective of whether the principal of any Bonds
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any
demand pursuant to the provisions of this Section 6.03, shall be entitled
and empowered, by intervention in such Proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Bonds of
any Series, and to file such other papers or documents as may be
unnecessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad
faith) and of the Bondholders allowed in any Proceedings relative
to the Issuer or other obligor upon the Bonds of any Series, or to
the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Bonds of any Series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
Proceedings or person performing similar functions in comparable
Proceedings, and
(c) to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Bondholders and of the
Trustee on their behalf; and any trustee, receiver or liquidator,
custodian or other similar official is hereby authorized by each
of the Bondholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments
directly to the Bondholders, to pay the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of
any Bondholder in any such Proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar person.
In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this
Standard Provisions Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Bonds of the
Series affected thereby, and it shall not be necessary to make any
Holders of such Bonds parties to any such Proceedings.
Section 6.04. REMEDIES.
(a) If an Event of Default with respect to any Series shall have occurred
and be continuing, the Trustee may, to the extent not inconsistent with
the provisions of Section 6.05, if applicable, do one or more of the
following:
(i) institute Proceedings for the collection of all amounts then
payable on the Bonds of such Series or under this Standard
Provisions Indenture and the Terms Indenture, whether by
declaration or otherwise, enforce any judgment obtained, and
collect from the Trust Estate securing the Bonds of such Series
and the Issuer moneys adjudged due;
(ii) sell all or a portion of the Trust Estate securing the Bonds
of such Series or rights or interests therein, at one or more
public or private sales called and conducted in any manner
permitted by law;
(iii) institute Proceedings from time to time for the complete or
partial foreclosure of this Standard Provisions Indenture and the
Terms Indenture with respect to the Trust Estate securing the
Bonds of such Series; and
(iv) exercise any remedies of a secured party under the Uniform
Commercial Code and take any other appropriate action to protect
and enforce the rights and remedies of the Trustee or the Holders
of the Bonds of such Series hereunder;
PROVIDED, HOWEVER, that without the consent of Holders of the entire
principal amount of Outstanding Bonds of such Series and a determination
by the Trustee that the Trust Estate securing the Bonds of such Series
will not continue to provide sufficient funds for the payment of
principal of and interest on the Bonds of such Series as they would have
become due if the Bonds of such Series had not been declared due and
payable, the Trustee may not sell or otherwise liquidate the Trust Estate
securing the Bonds of such Series unless the proceeds of such sale
or liquidation distributable to the Holders of Bonds of such Series are
sufficient to discharge in full the amounts then due and unpaid,
notwithstanding any failure to give such notice, and the Trustee shall
give such notice upon the removal or cure of such inability or stay (but
shall have no obligation to effect such removal or cure). Any such
election may be rescinded with respect to any portion of the Trust Estate
securing the Bonds of such Series remaining at the time of such
rescission by written notice to the Trustee and the Issuer from the
Holders of a majority in principal amount of the Outstanding Bonds of
such Series.
Section 6.06. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial Proceeding relative to the Issuer or any other obligor upon the
Bonds of any Series or the property of the Issuer or of such other
obligor or their creditors, the Trustee (irrespective or whether the
principal of the Bonds of such Series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the
payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such Proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Bonds of such
Series and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders of the Bonds of such Series allowed in such
judicial Proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, or sequestrator (or
other similar official) in any such judicial Proceeding is hereby
authorized by each Holder of Bonds of such Series to make such payments
to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders of the Bonds of such
Series, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of
Bonds of such Series any plan of reorganization, arrangement, adjustment
or composition affecting the Bonds of such Series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Bondholder in any such Proceeding.
Section 6.07. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF BONDS.
All rights of action and claims under this Standard Provisions Indenture
or the Bonds of any Series may be prosecuted and enforced by the Trustee
without the possession of any of the Bonds of such Series or the
production thereof in any Proceeding relating thereto, and any such
Proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Bonds of the Series affected
thereby in respect of which such judgment has been recovered.
Section 6.08. APPLICATION OF MONEY COLLECTED.
Unless otherwise provided in the Terms Indenture for a Series and except
as provided in Section 6.05, if
applicable, any money collected by the Trustee with respect to the Bonds
of any Series pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Bonds of such Series and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.07;
SECOND: To the payment of the amounts then due and unpaid upon the Bonds
for principal and interest, in respect of which or for the benefit of
which such money has been collected, according to the amounts due and
payable on the Bonds for principal and interest, respectively, with such
payments applied first to interest and then to principal;
THIRD: To the payment of any Excess Cash (1) to the Issuer or its
designates or assigns; (2) next to the Bondholders as a principal payment
as provided in the Terms Indenture; and (3) next as provided in section
12.09;
FOURTH: To the payment, as directed by the Servicer, of all premiums
due on the Special Hazard Insurance Policies, the Excess Coverage
Insurance Policies, the Pool Insurance Policy, the Mortgagor
Bankruptcy Bond, the Prepayment Interest Bond and the Repurchase Bond,
and the amounts to be deposited in the Supplemental Custodial Reserve
Fund;
FIFTH: To the payment of all amounts due the Back-Up Servicer, pursuant
to the Servicing Agreement or the Back-Up Servicing Agreement.
SIXTH: To the payment of all amounts due the Servicer pursuant to the
Servicing Agreement;
SEVENTH: To the payment of all amounts due the legal counsel of the
Issuer, the accountants of the Issuer, and the Owner-Trustee; and
EIGHTH: To the payment of any additional funds to the Issuer or any other
Person legally entitled thereto.
Section 6.09. LIMITATION ON SUITS.
No Holder of any Bond of a Series shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Standard
Provisions Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default in respect of such Series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Bonds of such Series shall have made written request
to the Trustee to institute Proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
Proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Bonds of such
Series;
it being understood and intended that no one or more Holders of Bonds of
a Series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Standard Provisions Indenture to
affect, disturb or prejudice the rights of any other Holders of Bonds of
such Series or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Standard Provisions
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders of Bonds of such Series.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Bonds, each
representing less than a majority of the then aggregate outstanding
amount of the Outstanding Bonds of such Series, the Trustee in its sole
discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Standard Provisions
Indenture.
Section 6.10. UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Notwithstanding any other provision in this Standard Provisions Indenture
other than Section 3.07(e), the Holder of any Bond shall have the right
which is absolute and unconditional to receive payment of the principal
of and interest on such Bond as such principal and interest becomes due
and payable and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 6.11. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Bondholder has instituted any Proceeding to enforce
any right or remedy under this Standard Provisions Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Bondholder, then and in
every such case the Issuer, the Trustee and the Bondholder shall, subject
to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
rights and remedies of the Trustee and the Bondholders shall continue as
though no such Proceeding had been instituted.
Section 6.12. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Bondholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
Section 6.13. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Bond to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Bondholders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Bondholders, as the case may be.
Section 6.14. CONTROL BY BONDHOLDERS.
The Holders of a majority in principal amount of the Outstanding Bonds of
each Series affected (voting as one class with respect to each Series)
shall have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the Trustee with respect to
the Bonds of such Series or exercising any trust or power conferred on
the Trustee with respect to such Series, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Standard Provisions
Indenture or the Terms Indenture and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; provided,
however, that, subject to Section 7.01, the Trustee need not take
any action which it determines might involve it in liability or be
unjustly prejudicial to the Bondholders not consenting.
Section 6.15. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding Bonds of
any Series may on behalf of the Holders of all the Bonds of such Series
waive any past Default with respect to such Series and its consequences,
except a Default:
(1) in the payment of the principal of or interest on any Bond of
such Series unless an election to act in accordance with the
provisions of Section 6.05 shall have been made and not rescinded,
or
(2) in respect of a covenant or provision hereof which under
Section 10.02 cannot be modified or amended without the consent of
the Holder of each Outstanding Bond affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Standard Provisions Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.16. UNDERTAKING FOR COSTS.
All parties to this Standard Provisions Indenture agree, and each Holder
of any Bond by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Standard Provisions
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any
Bondholder, or group of Bondholders, holding in the aggregate more than
10% in principal amount of the Outstanding Bonds of a Series, or to any
suit instituted by any Bondholder for the enforcement of the payment of
the principal of or interest on any Bond on or after the Stated Maturity
expressed in such Bond (or, in the case of redemption, on or after the
applicable Redemption Date or Special Redemption Date).
Section 6.17. WAIVER OF STAY OR EXTENSION LAWS.
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, which may affect
the covenants or the performance of this Standard Provisions Indenture;
and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
Section 6.18. SALE OF TRUST ESTATE.
(a) The power to effect any Sale of any portion of the Trust Estate
securing a Series pursuant to Section 6.04 shall not be exhausted by any
one or more Series as to any portion of such Trust Estate remaining
unsold, but shall continue unimpaired until the entire Trust Estate
securing the Bonds of such Series shall have been sold or all amounts
payable on the Bonds of such Series and under this Standard Provisions
Indenture with respect thereto shall have been paid. The Trustee may from
time to time postpone any Sale by public announcement made at the time
and place of such Sale. The Trustee hereby expressly waives its right to
any amount fixed by law as compensation for any Sale.
(b) The Trustee may bid for and acquire any portion of the Trust Estate
securing a Series of Bonds in connection with a public Sale thereof, and
may pay all or part of the purchase price by crediting against amounts
owing on the Bonds of such Series or other amounts secured by this
Standard Provisions Indenture, all or part of the net proceeds of such
Sale after deducting the costs, charges and expenses incurred by the
Trustee in connection with such Sale. The Bonds of such Series need not
be produced in order to complete any such Sale, or in order for the net
proceeds of such Sale to be credited against the Bonds of such Series.
The Trustee may hold, lease, operate, manage or otherwise deal with any
property so acquired in any manner permitted by law.
(c) The Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Trust Estate
in connection with a Sale thereof. In addition, the 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 Estate in
connection with a Sale thereof, and to take all action necessary to
effect such Sale. No purchaser or transferee at such a Sale shall be
bound to ascertain the Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any moneys.
Section 6.19. ACTION ON BONDS.
The Trustee's right to seek and recover judgment on the Bonds of any
Series or under this Standard Provisions Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or
with respect to this Standard Provisions Indenture. Neither the lien of
this Standard Provisions Indenture nor any rights or remedies of the
Trustee or the Bondholders shall be impaired by the recovery of any
judgment by the Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or
upon any of the assets of the Issuer.
Section 6.20. NO RECOURSE TO TRUST ESTATE.
Unless the Terms Indenture provides otherwise, the Trust Estate Granted
to the Trustee for any Series of Bonds will serve as collateral security
for such Series of Bonds only.
ARTICLE SEVEN: THE TRUSTEE
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Standard Provisions
Indenture, and no implied covenants or obligations shall be read
into this Standard Provisions Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed by the Issuer and by
advisors engaged by the Issuer. Nothing in the Standard Provisions
Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(b) In case an Event of Default with respect to the Bonds of any Series
has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Standard Provisions Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Standard Provisions Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal
amount of the Outstanding Bonds of any Series relating to the
time, method and place of conducting any Proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Standard Provisions
Indenture; and
(4) no provision of this Standard Provisions Indenture or the
Terms Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it
unless such risk or liability relates to its ordinary services
under this Standard Provisions Indenture.
(d) For all purposes of this Standard Provisions Indenture and the Terms
Indenture, the Trustee shall not be deemed to have notice of any Event of
Default unless written notice that an Event of Default has occurred is
received by the Trustee at the Corporation Trust office.
(e) Whether or not therein expressly so provided, every provision of this
Standard Provisions Indenture relating to the conduct of or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
(f) Notwithstanding any extinguishment of all right, title and interest
of the Issuer in and to the Trust Estate following an Event of Default
and a consequent declaration of acceleration of the Maturity of the
Bonds, whether such extinguishment occurs through a Sale of the Trust
Estate to another Person, the acquisition of the Trust Estate by the
Trustee or otherwise, the rights powers and duties of the Trustee with
respect to the Trust Estate (or the proceeds thereof) and the Holders of
the Bonds and the rights of Bondholders shall continue to be governed by
the terms of the Indenture.
Section 7.02. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any Default known to the Trustee
with respect to a Series, the Trustee shall transmit by mail to the
Rating Agency and to all Holders of Bonds of such Series, as their names
and addresses appear on the Bond Register, notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured
or waived; provided, however, that, except in the case of a Default in
the payment of the principal of or interest on any Bond, the Trustee
shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors
and/or Responsible
Officers of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Bondholders; and provided,
further, that in the case of any Default of the character specified in
Section 6.01(2), no notice under this Subsection 7.02 to Bondholders
shall be given until at least 60 days after the occurrence thereof.
Section 7.03. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order;
(c) whenever in the administration of this Standard Provisions Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, require and rely upon an
Authorized Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Standard Provisions Indenture at
the request or direction of any of the Bondholders pursuant to this
Standard Provisions Indenture, unless such Bondholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder.
(h) the Trustee shall not be obligated to make an investigation of any
Collateral securing the Bonds delivered to it as provided herein, except
that the Trustee agrees to inspect Loan Documents delivered to it to
verify that, with respect to each Pledged Loan, (i) it has actually
received a Mortgage Note and a Mortgage; (ii) each such Mortgage Note and
Mortgage appear to be originals; (iii) the date of the Mortgage Note is
the same as the date on the corresponding Mortgage; (iv) the initial
principal amount of the Mortgage Note is the same as on the Mortgage (if
stated therein); (v) the payee on the Mortgage Note is the same as the
mortgagee on the Mortgage, and the same is true through any endorsement
of the Mortgage Note and assignments of the Mortgage; (vi) the signatures
on the Mortgage Note appear(s) to be the same in form as on the Mortgage,
and the same on any related modification of, or other agreements
concerning, the mortgage Note and the Mortgage; (vii) the maturity date
of the Mortgage Note and the Mortgage (if stated therein) are the same;
(viii) the Mortgage Note is endorsed as provided in this Indenture; (ix)
the Mortgage was initially recorded, and is assigned to the Trustee in an
approved recordable form; and (x) the items on any schedule delivered by
the Issuer are in accordance with
the foregoing.
With respect to the delivery of the Original Mortgage Collateral securing
the Bonds, the Trustee shall complete the investigation described herein
and shall notify the Issuer in writing of any discrepancies within 120
days after the receipt of such Mortgage Collateral and with respect to
any subsequent delivery of Mortgage Collateral pursuant to this
Indenture, shall complete such investigation and shall notify the Issuer
in writing of any discrepancy within 90 days after the receipt of such
Mortgage Collateral.
Section 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF BONDS.
The recitals contained herein and in the Bonds, except the certificate of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for their correctness. The Trustee
makes no representation as to the validity or sufficiency of this
Standard Provisions Indenture or of the Bonds. The Trustee shall not be
accountable for the use or application by the Issuer of Bonds or the
proceeds thereof.
Section 7.05. MAY HOLD BONDS.
(a) The Trustee, any Paying Agent, Bond Registrar or any other agent of
the Issuer, in its individual or any other capacity, may become the owner
or pledgee of Bonds and, subject to Sections 7.08 and 7.13, may otherwise
deal with the Issuer with the same rights it would have if it were not
Trustee, Paying Agent, Bond Registrar or such other agent.
(b) The Trustee, or one or more of its Affiliates, may enter into one or
more custodial agreements with one or more Services of the GNMA
Certificates, as issuers of the GNMA Certificates or one or more Services
of the βββββββ Mac PCs or FNMA MBSs or to act as custodian or agent of
the documents evidencing and relating to the mortgage loans which are
grouped or pooled under one or more guaranty agreements or servicing
agreements between any such Servicer and GNMA, βββββββ Mac or FNMA and
with respect to which Mortgage Certificates are issued, and may, from
time to time, be the depository of custodial accounts with respect to one
or more of such mortgage groups or pools. It is expressly recognized and
agreed by all parties hereto, and each Holder of a Bond by acceptance
thereof shall be deemed to have agreed that, in the event of default
under one or more servicing agreements, the Trustee, or one or more of
its Affiliates, as custodian of one or more mortgage groups or pools or
accounts related thereto, may be obliged to comply with the directions of
GNMA, βββββββ Mac or FNMA regarding the property in its possession and,
to the extent that such actions are consistent with the directions of
GNMA, βββββββ Mac or FNMA and will not affect the validity or perfection
of the Trustee's lien granted hereunder and under the applicable Terms
Indenture, they shall not be, or be deemed to be, inconsistent or in
conflict with the duties, responsibilities and interests of the Trustee
hereunder.
(c) The Trustee, or one or more of its Affiliates may enter into one or
more custodial agreements with one or more Services of the Pledged Loans,
to act as custodian of the Loan Documents; and further may, from time to
time, be the depository of custodial accounts with respect to such Loan
Documents. It is expressly recognized and agreed by all parties hereto,
and each Holder of a Bond by acceptance thereof shall be deemed to have
agreed, that, in the event of default under one or more Servicing
Agreements, the Trustee, or one or more of its Affiliates, as custodian
of the Loan Documents or accounts related thereto, may be obliged to
comply with the directions of the Back-up Servicer regarding the property
in its possession and, to the extent that such actions are consistent
with the directions of the Back-up Servicer and will not affect the
validity or perfection of the Trustee lien granted herein and under the
applicable Terms Indenture, they shall not be, or be deemed to be,
inconsistent or in conflict with the duties, responsibilities and
interests of the Trustee hereunder.
Section 7.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder for a Series need not be
segregated from other funds held by the Trustee in trust hereunder for
such Series except to the extent required herein or required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the
Issuer.
Section 7.07. COMPENSATION AND REIMBURSEMENT.
The Issuer agrees:
(1) to pay the Trustee reasonable compensation for all services
rendered by it hereunder, including pursuant to any custodial
agreements as provided in Section 7.04 (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
exercising its powers or performing its duties under this Standard
Provisions Indenture or the Terms Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents, except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith); and
(3) to indemnify the Trustee and any officer, director, employee
or agent of the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder or under the Terms Indenture.
As security for the performance of the obligations of the Issuer under
this Section, the Issuer Grants to the Trustee a lien ranking junior to
the lien of the Bonds (but senior to all other liens, if any) upon all
property and funds held or collected as part of the Trust Estate by the
Trustee in its capacity as such. The Trust shall not institute any
Proceeding seeking the enforcement of such lien against the Trust Estate
unless (i) such Proceeding is in connection with a Proceeding in
accordance with Article VI for enforcement of the lien of this Indenture
for the benefit of the Holders of Bonds after the occurrence of an Event
of Default (other than an Event of Default arising solely from the
Issuer's failure to pay amounts due the Trustee under this Section 7.07)
and a resulting declaration of acceleration of maturity of the Bonds that
has not been rescinded and annulled, or (ii) such Proceeding does not
seek a Sale or other disposition of the Trust Estate.
Section 7.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, it shall, within 90 days after ascertaining that
it has such conflicting interest, either eliminate such conflicting
interest or resign in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section the Trustee shall, within 10
days after the expiration of such 90-day period, transmit by mail to all
Bondholders, as their names and addresses appear in the Bond Register,
notice of such failure.
(c) For the purpose of this Section, the Trustee shall be deemed to have
a conflicting interest if:
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities of the Issuer are outstanding, unless (A)
such other indenture securities are collateral trust indenture
notes under which the only collateral consists of Bonds issued
under this Standard Provisions Indenture, (B) such other indenture
is a collateral trust indenture under which the only collateral
consists of indenture securities, or (C) the Issuer has no
substantial unmortgaged assets and is engaged primarily in the
business of owning, or of owning and developing and/or operating,
real estate and this Standard Provisions Indenture and such other
indenture are secured by wholly separate and distinct parcels of
real estate; provided that there shall be
excluded from the operation of this paragraph any other indenture
or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer are
outstanding, if:
(i) the Standard Provisions Indenture and such other indenture or
indentures are wholly unsecured and such other indenture or
indentures are hereafter qualified under TIA, unless the
Commission shall have found and declared by an order pursuant to
Section 305(b) or Section 307(c) of TIA that differences exist
between the provisions of this Standard Provisions Indenture and
the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this
Standard Provisions Indenture and such other indenture or
indentures, or
(ii) the Issuer shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Standard Provisions Indenture
and such other indenture or indentures is not so likely to involve
a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify
the Trustee from acting as such under one of such indentures;
(2) the Trustee or any of its directors or executive officers is
an obligor upon the Bonds or an underwriter for the Issuer;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common
control with the Issuer or an underwriter for the Issuer;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative
of the Issuer, or of an underwriter other than the Trustee itself,
for the Issuer who is currently engaged in the business of
underwriting, except that (i) one individual may be a director or
an executive officer, or both, of the Issuer but may not be at the
same time an executive officer of both the Trustee and the Issuer;
(ii) if and so long as the number of directors of the Trustee in
office is more than nine, one additional individual may be a
director and/or an executive officer or both, of the Trustee and a
director of the Issuer; and
(iii) the Trustee may be designated by the Issuer or any
underwriter for the Issuer to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow
agent, or depository, or in any other similar capacity, or subject
to the provisions of paragraph (1) of this Subsection, to act as
trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Issuer or by any Authorized Officers thereof, or 20%
or more of such voting securities is beneficially owned, collectively,
by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter
for the Issuer or by any Authorized Officers thereof, or is beneficially
owned collectively by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for, an obligation which is in default, (i) 5% or more of the
voting securities, or 10% or more of any other class of security, of the
Issuer not including the Bonds issued under this Standard Provisions
Indenture and securities issued under any other indenture under which the
Trustee is also trustee, or (ii) 10% or more of any class of security of
an underwriter for the Issuer;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for, an obligation which is in default, 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10%
or more of the voting securities of, or controls directly or indirectly,
or is under direct or indirect common control with, the Issuer;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 10% or more of any class
of security of any person who, to the knowledge of the Trustee, owns 50%
or more of the
voting securities of the Issuer; or
(9) the Trustee owns, on December 1 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this Subsection. As to any such securities
of which the Trustee acquired ownership through becoming executor,
administrator, or testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not apply, for a period of
two years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of securities. Promptly after
_________ in each calendar year, the Trustee shall make a check of its
holding of such securities in any of the above-mentioned capacities as of
such __________. If the Issuer fails to make payment in full of the
principal of or interest on any of the Bonds when and as the same becomes
due and payable and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration of
such 30-day period, and after such date notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee,
with sole or joint control so long as such failure shall continue, shall
be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive, of
this Subsection shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary
or sufficient to constitute direct or indirect control for the purposes
of paragraphs (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificates of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment
of principal shall have continued for 30 days or more and shall have not
been cured; and (iii) the Trustee shall not be deemed to be the owner or
holder of (A) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as
defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Standard Provisions Indenture,
irrespective of any default hereunder, or (C) any security which it holds
as agent for collection, or as custodian, escrow agent, or depository or
in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the Issuer
means every person who, within three years prior to the time as of
which the determination is made, has purchased from the Issuer
with a view to, or has offered or sold for the Issuer in
connection with, the distribution of any security of the Issuer
outstanding at such time, or has participated or has had a direct
or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from
an underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation, or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government, or a government or
political subdivision thereof. As used in this paragraph, the term
"trust" shall include only a trust where the interest or interests
of the beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
currently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are currently entitled to
vote in the direction or management of the affairs of a person.
(5) The term "Issuer" means an obligor upon the Bonds.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization
whether incorporated or unincorporated, but shall not include the
chairman of the board of directors.
(7) The term "Trustee" includes any separate or co-trustee
appointed under Section 7.14.
(e) The percentage of voting securities and other securities specified in
this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Issuer or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities
of such person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which the holders
of all the outstanding voting securities of such person are
entitled to cast in the direction or management of the affairs of
such person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(3) The term "amount," when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the Issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(ii) securities of an issuer, held in a sinking fund
relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities
is not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness,
all of which are issued under a single indenture, differences in
the interest rates or maturity dates of various series thereof
shall not be deemed sufficient to constitute such series'
different classes; and provided, further, that, in case of
unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them
securities of different classes whether or not they are issued
under a single indenture.
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized an doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or state
authority and having an office within the United States of America. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, is shall
resign immediately in the manner and with the affect hereinafter
specified in this Article.
Section 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under
Section 7.11.
(b) The Trustee may resign at any time with respect to one or more or all
Series of Bonds by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee for any Series may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Bonds of
such Series, delivered to the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) with respect to
any Series of Bonds after written request therefor by the Issuer or by
any Bondholder who has been a bona fide Holder of a Bond for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and shall
fail to resign after written request therefor by the Issuer or by any
such Bondholder, or
(3) the Trustee shall become incapable of acting with respect to any
Series of Bonds or shall be adjudged a bankrupt or insolvent or a
receiver or liquidator of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case,
(i) the Owner-Trustee may remove the Trustee with respect to the
applicable Series, or (ii) subject to Section 6.16 any Bondholder who has
been a bona fide Holder of a Bond of such Series for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with
respect to the applicable Series and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any
cause, the Owner-Trustee shall promptly appoint a successor Trustee. If
within one year after such resignation, removal or incapability or the
occurrence of such vacancy, a successor trustee shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Bonds
of that Series delivered to the Issuer and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the
successor Trustee appointed by
the Issuer. If no successor Trustee shall have been so appointed by
the Issuer or the Bondholders and shall have accepted appointment in
the manner hereinafter provided, any Bondholder who has been a bona
fide Holder of a Bond for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Rating Agency and to the Holders of the applicable Series of Bonds as
their names and addresses appear in the Bond Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of
the retiring Trustee with respect to all or any applicable Series shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts, duties and obligations of the retiring Trustee with respect to
such Series; but, on request of the Issuer or the successor Trustee, such
retiring Trustee shall, upon payment of its charges then unpaid, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to the lien
of this Standard Provisions Indenture. Upon request of any such
successor Trustee, the Issuer shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to the Bonds of one or
more (but not all) Series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Bonds of any applicable Series
shall execute and deliver an agreement supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Bonds of any Series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add or change any of the provisions of
this Standard Provisions Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
agreement shall constitute such Trustees, co-trustees of the same trust,
and that each such Trustee shall be a trustee of a trust or trusts under
separate indentures.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible
under this Article and the Trustee or an Affiliate of the Trustee shall
be approved by FNMA or βββββββ Mac as a seller-servicer of mortgage
loans.
Section 7.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
OF TRUSTEE.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trustee business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
case any Bonds have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Bonds so authenticated with the same effect as if such successor Trustee
had itself authenticated such Bonds.
Section 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER.
The Trustee shall be subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated.
Section 7.14. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal requirements
of any jurisdiction in which any of the Trust Estate for a Series may at
the time be located, the Issuer and the Trustee shall have power to
appoint, and upon the written request of the Trustee or of the Holders of
at least 25% in principal amount of the Bonds Outstanding for such
Series, the Issuer shall for such purpose join with the Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to appoint one or more Persons approved by the
Trustee either to act as co-trustee, jointly with the Trustee, of all or
any part of the Trust Estate for such Series, or to act as separate
trustee of any such property for such Series, in either case with such
powers as may be provided in the instrument of appointment, and to vest
in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other
provisions of this Section. If the Issuer does not join in such
appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default for such Series has occurred and is
continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument from the Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Issuer.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following
terms, namely:
A. The Bonds of a Series shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of
the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Trustee
hereunder, shall be exercised solely by the Trustee.
B. The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised
or performed by the Trustee or by the Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except
to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
C. The Trustee may at any time, by an instrument in writing
executed by it, with the concurrence of the Issuer evidenced by an
Authorized Officer's Certificate, accept the resignation of or
remove any co-trustee or separate trustee appointed under this
Section, and, in case an Event of Default for a Series has
occurred and is continuing, the Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Issuer. Upon the written
request of the Trustee, the Issuer shall join with the Trustee in
the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. If the Issuer does not join in such resignation or
removal within 15 days after the receipt by it of a request so to
do, or in case an Event of Default for such Series has occurred
and is continuing, the Trustee alone shall have power to accept
such resignation or effect such removal. A successor to any
co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
D. No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any
other such trustee hereunder, nor shall the Trustee be personally
liable by reason of any act or omission of any co-trustee or
separate trustee.
E. Any Act of Bondholders for a Series delivered to the Trustee
shall be deemed to have been delivered to such co-trustee and
separate trustee.
F. If the law of any jurisdiction in which any of the Trust Estate
for a Series may at any time be located requires the appointment
of a co-trustee or separate trustee, then the Trustee shall not
accept the resignation of, or effect the removal of, any
co-trustee or separate trustee in such jurisdiction unless a
successor to such co-trustee or separate trustee has been
appointed for such Series in such jurisdiction in accordance with
this Section.
ARTICLE EIGHT: BONDHOLDERS' LISTS AND REPORTS
BY TRUSTEE AND ISSUER
Section 8.01. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
BONDHOLDERS.
The Issuer will furnish or cause to be furnished to the Trustee (a)
semiannually, not more than 10 days after each Regular Record Date with
respect to each Series of Bonds, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Bonds of
such Series as of such Regular Record Date, and (b) at such other times,
as the Trustee may request in writing, within 30 days after receipt by
the Issuer of any such request, a list of similar form and content as of
a date not more than 10 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Bond Registrar, no
such list shall be required to be furnished.
Section 8.02. PRESERVATION OF INFORMATION; COMMUNICATION TO BONDHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Bonds of a Series
contained in the most recent list furnished to the Trustee as provided in
Section 8.01 and the names and addresses of the Holders of Bonds of a
Series received by the Trustee in its capacity as Bond Registrar. The
Trustee may destroy any list furnished to it as provided in Section 8.01
upon receipt of a new list so furnished.
(b) If three or more Holders of Bonds ("applicants") apply in writing
to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Bond for a period of at least six months
preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders of Bonds with
respect to their rights under this Standard Provisions Indenture or under
the Bonds and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application,
at its election, either:
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Subsection (a) of this Section; or
(2) inform such applicants as to the approximate number of Holders of
Bonds of such Series or all Bonds, as the case may be, whose names and
addresses appear in the information preserved at the time by the Trustee
in accordance with Subsection (a) of this Section, and as to the
approximate cost of mailing to such Bondholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such
applicants, mail to each Bondholder of such Series or all Bonds, as the
case may be, whose name and address appear in the information preserved
at the time by the Trustee in accordance with Subsection (a) of this
Section, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the
best interests of the Holders of Bonds of such Series or all Bonds, as
the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of
an order sustaining one of more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Bondholders with reasonable promptness after the entry of such order
and the renewal of such tender, otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Bonds, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Bonds in
accordance with Subsection (b) of this Section, regardless of the sources
from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a
request made under Subsection (b) of this Section.
Section 8.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the year
after the Issue Date of a Series of Bonds, the Trustee shall transmit by
mail to all Holders of Bonds of such Series, as their names and addresses
appear in the Bond Register for such Series, a brief report dated as of
February 28, ("reporting date") with respect to:
(1) its eligibility under Section 7.09 and its qualifications under
Section 7.08, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the reporting date,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Bonds of such Series, on the Trust Estate
for such Series or on any property or funds held or collected by it as
Trustee with respect to such Series, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Bonds Outstanding for such Series on the reporting date;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Issuer (or by any other obligor on the Bonds of
such Series) to the Trustee in its individual capacity, on the reporting
date, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13;
(4) the property and funds relating to such Series, if any, physically
in the possession of the Trustee as such on the reporting date;
(5) any release, or release and substitution, of any property relating
to such Series subject to the lien of the Standard Provisions Indenture
(and the consideration therefore, if any) which it has not previously
reported;
(6) any additional issue of Bonds of such Series which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Bonds of such Series or the Trustee Estate
securing such Series, except action in respect of a Default, notice of
which has been or is to be withheld by the Trustee in accordance with
Section 7.02.
(b) The Trustee shall transmit by mail to all Holders of Bonds of a
Series, as their names and addresses appear in the Bond Register for such
Series of Bonds, a brief report with respect to the release, or release
and
substitution, of property relating to such Series subject to the lien
of this Standard Provisions Indenture (and consideration therefor, if
any) unless the fair value of such property is less than 10% of the
principal amount of the Bonds Outstanding of such Series at the time of
such release, or such release and substitution, such report to be
transmitted within 90 days of such time.
(c) A copy of each such report shall, at the time of such transmission to
the Holders of Bonds such Series, be filed by the Trustee with each
securities exchange upon which the Bonds of such Series are listed, and
also with the Commission. The Issuer will notify the Trustee when the
Bonds of any Series are listed on any securities exchange.
(d) The Trustee shall transmit by mail to each Holder of Bonds of a
Series a report with respect to the principal amount of the Bonds of such
Series held by such Holder of Bonds of such Series as of the immediately
preceding Payment Date and the amount of principal, interest and premium,
if any, paid with respect to the Bonds of such Series held by such Holder
of Bonds of such Series since the immediately preceding Payment Date.
Section 8.04. REPORTS BY ISSUER.
The Issuer shall:
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934; or, if the Issuer is not required to file
information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect
of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission 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 Standard Provisions Indenture as may be required
from time to time by such rules and regulations;
(3) transmit by mail to all Holders of Bonds of a Series as their
names and addresses appear in the Bond Register for such Series of
Bonds, and to each Rating Agency rating the Bonds of such Series,
within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be
filed by the Issuer pursuant to clauses (1) and (2) of this
Section as may be required by rules and regulations prescribed
from time to time by the Commission; and
(4) transmit by mail to all Holders of Bonds of a Series, as
their names and addresses appear in the Bond Register for such
Series of Bonds and to each Rating Agency rating the Bonds of such
Series, within 120 days after the end of each fiscal year of the
Issuer, (i) an audited balance sheet of the Issuer as of the last
day of the preceding fiscal year and (ii) a statement setting
forth the remaining balance of the Bonds of such Series held by
each Holder of Bonds of such Series on the last day of the
preceding fiscal year.
ARTICLE NINE: COVENANTS OF ISSUER
Section 9.01. PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer will duly and punctually pay the principal of and interest on
the Bonds of each Series solely from
proceeds of the Trust Estate for such Series Granted hereunder and the
related Terms Indenture in accordance with the terms of the Bonds,
this Standard Provisions Indenture and the related Terms Indenture.
Section 9.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain an office or agency within the United States of
America where Bonds may be presented or surrendered for payment, where
Bonds may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer in respect of the Bonds
and this Standard Provisions Indenture may be served. The Issuer hereby
initially appoints the Corporate Trust Office of the Trustee as such
office or agency. The Issuer will give prompt written notice to the
Trustee of the location, and of any change in the location, of any such
office or agency. If at any time the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Trustee at its Corporate Trust Office its agent to receive
all such presentations, surrenders, notices and demands.
Section 9.03. MONEY FOR BOND PAYMENTS TO BE HELD IN TRUST.
Subject to the provisions of Section 6.05, if applicable, if the Issuer
shall at any time act as its own Paying Agent, it will, on or before each
Payment Date, Redemption Date or Special Redemption Date for a Series of
Bonds, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents, the Issuer will
on or before each Payment Date, Redemption Date, Special Redemption Date
or other date of payment for a Series of Bonds, deposit with such Paying
Agent a sum sufficient to pay the principal or interest so becoming due
(to the extent funds are then available for such purposes), such sum to
be held in trust for the benefit of the Persons entitled to such
principal or interest, and unless such Paying Agent is the Trustee, the
Issuer will promptly notify the Trustee of it action or failure so to
act.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal of or
interest on the Bonds in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(2) give the Trustee notice of any default by the Issuer for any
other obligor upon the Bonds) in the making of any payment of
principal or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Standard Provisions Indenture or for any other
purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Issuer or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Issuer or such Payment Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or then held by
the Issuer, in trust for the payment of the principal of or interest on
any Bond and remaining unclaimed for six years after such principal or
interest has become due and payable shall be paid to the Issuer upon the
Issuer's Request, or (if then held by the Issuer)
shall be discharged from such trust; and the Holder of such Bond shall
thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money (but only to the extent of the
amounts so paid to the Issuer), and all liability of the Issuer as
trustee with respect to such trust money, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such release of payment, may at the expense of
the Issuer cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of
general circulation in the city in which the Corporate Trust Office is
located, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days after the
date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer. The Trustee may also adopt
and employ, at the expense of the Issuer, any other reasonable means
of notification of such release of payment (including, but not limited
to, mailing notice of such release to Holders whose Bonds have been
called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable
from the records of any Paying Agent, at the last address of record
for each such Holder).
Section 9.04. CORPORATE EXISTENCE.
(a) Subject to Sections 9.04(b) and 9.04(c), the Owner-Trustee will keep
in full effect its existence as a banking corporation.
(b) Any corporation into which the Owner-Trustee hereunder may be
merged or with which it may be consolidated, or any corporation resulting
form any merger or consolidation to which such Owner-Trustee hereunder
shall be a party, shall be the successor Owner-Trustee under this
Indenture without the execution or filing of any paper, instrument or
further act to be done on the part of the parties hereto, anything
herein, or any agreement relating to such merger or consolidation, by
which any such Owner-Trustee may seek to retain certain powers, rights
and privileges theretofore obtaining for any period of time following
such merger or consolidation, to the contrary notwithstanding.
(c) Any successor to the Owner-Trustee appointed pursuant to the terms
of the Deposit Trust Agreement shall be the successor Owner-Trustee under
this Indenture without the execution or filing of any paper, instrument
or further act to be done of the part of the parties hereto.
(d) Upon any consolidation or merger of or other succession to the
Owner-Trustee in accordance with Section 7.12 hereof, the Person
surviving such consolidation or merger (if other than the Owner-Trustee)
or other Person succeeding to the Owner-Trustee under the Deposit Trust
Agreement may exercise every right and power of the Owner-Trustee under
the Indenture with the same effect as if such Person had been named as
Owner-Trustee herein.
Section 9.05. TRUST EXISTENCE.
The Trust will keep in full effect its existence, rights and franchises
as a trust under the laws of the State of Delaware (unless it becomes a
trust under the laws of any other state or the United States of
America in which case the Trust will keep in full effect its existence,
rights and franchises as a trust under the laws of such other
jurisdiction), and will obtain and preserve its qualification to do
business as a foreign entity in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture or the Bonds.
The Deposit Trust Agreement shall not be amended without the prior
written approval of the Trustee, which approval shall not be unreasonably
withheld.
Section 9.06. PROTECTION OF TRUST ESTATE.
The Issuer and the Trustee will from time to time execute and deliver
all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action as the Trustee deems
necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust
Estate for a Series;
(ii) maintain or preserve the lien (and the priority thereof) of
this Standard Provisions Indenture or carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of, or protect the validity of any
Grant made or to be made by this Standard Provisions Indenture;
(iv) enforce any of the Loan Documents, GNMA Certificates, βββββββ
Mac PCs, FNMA MBSs or Other Mortgage Certificates; or
(v) preserve and defend title to the Trust Estate securing a
Series and the rights of the Trustee and the Holders of Bonds of
such Series secured thereby in such Trust Estate therein against
the claims of all Persons.
The Issuer hereby designates the Trustee its agent and attorney-in-fact
to execute any financing statement, continuation statement or other
instrument required by the Trustee pursuant to this Section 9.06.
Section 9.07. OPINIONS AS TO TRUST ESTATE.
(a) Promptly and in any event within 90 days after the Issue Date for
each Series, the Issuer shall furnish to the 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 Standard
Provisions Indenture, any indentures supplemental hereto and any other
requisite documents as is necessary to make effective the lien and
security interest of this Standard Provisions Indenture with respect to
the Trust Estate for such Series 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 security interest effective.
(b) On or before ______________ in each calendar year commencing in the
year following the Issue Date for a Series, the Issuer shall furnish to
the Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording,
filing, re-recording and refiling of this Standard Provisions Indenture,
any indentures supplemental hereto and any other requisite document as is
necessary to maintain the lien and security interest created by this
Standard Provisions Indenture with respect to the Trust Estate for such
Series (except with respect to any portion of the Trust Estate securing a
Series with an Issue Date less than 120 days prior to the date of such
Opinion of Counsel) and reciting the details of such action or stating
that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this
Standard Provisions Indenture, any indentures supplemental hereto and any
other requisite documents that will, in the opinion of such counsel be
required to maintain the lien and security interest of this Standard
Provisions Indenture with respect to the Trust Estate for such Series
until ________ in the following calendar year.
Section 9.08. PERFORMANCE OF OBLIGATIONS; BACK-UP SERVICING AGREEMENT.
(a) The Issuer shall not take any action and will use its best
efforts not to 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 Loan Documents or under any instrument included in
the Trust Estate for a Series, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the Loan Documents or any
such instrument with respect to such Series, except as expressly
provided in this Standard Provisions Indenture, the Servicing
Agreement, the Back-up Servicing Agreement or such Loan Document for
such Series or other instrument or unless such action will not
adversely affect the Holders of the Bonds of such Series.
(b) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in the Back-up Servicing Agreement
and the Reinvestment Agreements, if any, with respect to each Series.
(c) Upon any termination of the Servicer's rights and powers pursuant
to the Servicing Agreement, the Trustee shall promptly notify the Rating
Agency and each Insurer. As soon as any successor to the Back-Up
Servicer is appointed, the Trustee shall notify each insurer, specifying
in such notice the name and address of such successor.
(d) To the extent that the Servicer has agreed in the Servicing
Agreement to undertake the rights and responsibilities of the beneficiary
under the Mortgagor Bankruptcy Bond included in the Trust Estate securing
the Bonds on the Delivery Date, the Trustee shall have no responsibility
or duties with respect to such Mortgagor Bankruptcy Bond, except as may
be required, upon request of the Servicer by virtue of the Trustee being
the record holder of a Pledged Loan.
Section 9.09. NEGATIVE COVENANTS.
The Issuer will not:
(1) sell, transfer, exchange or otherwise dispose of any of the Trust
Estate except as expressly permitted by this Indenture;
(2) claim any credit on, or make any deduction from, the principal,
premium, if any, or interest payable in respect of the Bonds by reason of
the payment of any taxes levied or assessed upon any of the Trust Estate
securing the Bonds;
(3) engage in any business or activity other than in connection with
or relating to the issuance of Bonds pursuant to this Indenture and in
connection with reports and distributions to the beneficial owners of the
Trust;
(4) incur, assume or guarantee any indebtedness of any Person secured
by any Mortgage collateral pledged under this Indenture;
(5) incur, assume or guarantee any indebtedness of any Person other
than in connection with the issuance of the Bonds pursuant to this
Indenture;
(6) dissolve or liquidate in whole or in part;
(7) (i) permit the validity or effectiveness of this Indenture or
any Grant hereunder to be impaired, or permit the lien of this Indenture
to be amended, hypothecated, subordinated, terminated or discharged with
respect to the Bonds, or permit any Person to be released from any
covenants or obligations under this Indenture, except as may be expressly
permitted hereby, (ii) permit any lien, charge, security interest,
mortgage or other encumbrance (other than the lien of this Indenture or
any Permitted Encumbrance) to be created on or extend to or otherwise
arise upon or burden the Trust Estate securing the Bonds or any part
thereof or any interest therein or the proceeds thereof, or (iii) permit
the lien of this Indenture not to constitute a valid first priority
security interest in the Trust Estate securing the Bonds; or
(8) conduct its business in such a manner that it would be deemed to
be an investment company within the meaning of the Investment Company Act
of 1940.
Section 9.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Issuer shall not consolidate or merge with or into any other Person
or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person (if other than the Issuer) formed or surviving such
consolidation or merger or which acquires by conveyance or transfer the
properties and assets of the Issuer substantially as an entirety 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 Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of an interest on all Bonds and the performance
of every covenant of this Standard Provisions Indenture on the part of
the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(3) the Issuer shall have delivered to the Trustee an Authorized
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent in
this Article provided for relating to such transaction have been complied
with.
Section 9.11. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Issuer substantially as an entirety in
accordance with Section 9.09, the Person formed by or surviving such
consolidation or merger (if other than the Issuer) or the Person to which
such conveyance or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under this
Standard Provisions Indenture with the same effect as if such Person had
been named as the Issuer herein. In the event of any such conveyance or
transfer, the Person named as the "Issuer" in the first paragraph of this
instrument or any successor which shall theretofore have become such in
the manner prescribed in this Article may be dissolved, wound up and
liquidated at any time thereafter, and such Person thereafter shall be
released from its liabilities as obligor and maker on all the Bonds and
from its obligations under this Standard Provisions Indenture.
Section 9.12. STATEMENT AS TO COMPLIANCE.
The Issuer will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Issuer (commencing with the fiscal year ending on
December 31, 199_), a written statement signed by the Chairman or the
President or a Vice President and by the Treasurer or an Assistant
Treasurer of the Issuer, stating, as to each signer thereof, that:
(1) a review of the activities of the Issuer during such year and
of performance under this Standard
Provisions Indenture has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the Issuer
has fulfilled all its obligations under this Standard Provisions
Indenture throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
Section 9.13. NOTIFICATION OF RATING AGENCIES.
The Issuer shall notify each Rating Agency rating the Bonds of a Series
of the issuance of any replacement Reinvestment Agreement entered into
with a bank, insurance company or other corporation meeting the
requirements set forth in the definition of Eligible Investments other
than a bank, insurance company or other corporation executing the
Reinvestment Agreements listed in a Schedule to a Terms Indenture as of
the Issue Date. In addition, the Issuer shall notify each Rating Agency
rating the Bonds of a Series in the event that any replacement policy or
instrument is obtained for the Excess Coverage Mortgage Insurance
Policies, the Mortgagor Bankruptcy Bond, the Prepayment Interest Bond,
the Repurchase Bond, the Primary Mortgage Insurance Polices, the Pool
Insurance Policy or the Special Hazard Insurance Policy with respect to
such Series from an insurer or other Person other than the Person who
issued such policy or instrument; provided, however, that the Trustee
shall not obtain any such replacement policy or instrument if the result
thereof will be to lower the then rating of any Bonds issued pursuant to
this Standard Provisions Indenture by any Rating Agency rating such
Bonds.
Section 9.14. COVENANTS OF THE ISSUER.
All covenants of the Issuer in this Indenture are covenants solely of
the Issuer and not covenants of the Owner-Trustee in its individual
capacity. The Owner-Trustee and any successor owner-trustee under the
Deposit Trust Agreement is entering into this Indenture solely as
Owner-Trustee under the Deposit Trust Agreement and not in its
individual capacity, and in no case whatsoever shall the Owner-Trustee
or any such successor owner-trustee be personally liable on, or for
any loss in respect of, any of the statements, representations,
warranties or obligations of the Issuer hereunder, as to all of which
the parties hereto agree to look solely to the property of the Issuer.
ARTICLE TEN: SUPPLEMENTAL INDENTURES
Section 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF BONDHOLDERS.
Without the consent of the Holders of any Bonds of any Series, the
Issuer, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to correct or amplify the description of any property at any
time subject to the lien of this Standard Provisions Indenture, or
better to assure, convey and confirm unto the Trustee any property
subject or required to be subjected to the lien of this Standard
Provisions Indenture, or to subject to the lien of this Standard
Provisions Indenture additional property;
(2) to add to the conditions, limitations and restrictions on the
authorized amount, terms and purposes of the issue, authentication
and delivery of any Series of Bonds, as herein set forth,
additional conditions, limitations and restrictions thereafter to
be observed;
(3) to set forth the terms of, and security for, any Series that
has not theretofore been authorized by a Terms Indenture;
(4) to amend Section 4.02 hereof, but only with respect to a
Series that has not theretofore been authorized by a Terms
Indenture;
(5) to evidence the succession of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Bonds contained;
(6) to add to the Covenants of the Issuer, for the benefit of the
Holders of all Bonds or the Bonds of any Series, or to surrender any
right or power herein conferred upon the Issuer;
(7) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee;
(8) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental
indenture, or to make any other provisions with respect to matters or
questions arising under this Standard Provisions Indenture or in any
supplemental indenture, provided that such action shall not adversely
affect the interests of the Holders of the Bonds of any Series;
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to one or more Series of
Bonds and to add to or change any of the provisions of this Standard
Provisions Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 7.11 hereof; or
(10) to modify, eliminate or add to the provisions of this
Standard Provisions Indenture to such extent as shall be necessary
to effect the Qualification of this Standard Provisions Indenture
under the TIA or under any similar Federal statute hereafter
enacted, and to add to this Standard Provisions Indenture such
other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties, liabilities or immunities under this Standard
Provisions Indenture or otherwise.
Section 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF BONDHOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Bonds of each Series to be affected, by Act of said
Holders delivered to the Issuer and the Trustee, the Owner-Trustee and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Standard Provisions Indenture relating to such
Series or of modifying in any manner the rights of the Holders of the Bonds
of such Series under this Standard Provisions Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Bond affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal or interest on, any Bond, or reduce the principal amount
thereof or the Bond Interest Rate thereon or the Redemption Price or
Special Redemption Price with respect thereto or change the provisions
of this Standard Provisions Indenture and the related Terms Indenture
relating to the application of Trust Estate collections to the payment
of principal of Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the applicable Redemption Date or Special
Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding Bonds
of any Series, 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
Standard Provisions Indenture or certain defaults hereunder and their
consequences provided for in this Standard Provisions Indenture;
(3) impair or adversely affect the Trust Estate for a Series except as
otherwise permitted herein;
(4) permit the creation of any lien ranking prior to or on a parity
with the lien of this Standard Provisions Indenture with respect to any
part of a Trust Estate or terminate the lien of this Standard
Provisions Indenture on any property at any time subject hereto or
deprive the Holder of any Bond of the security afforded by the lien of
this Standard Provisions Indenture;
(5) change the percentage required to direct the Trustee to sell or
liquidate the Trust Estate for a Series pursuant to Section 6.04; or
(6) modify any of the provisions of this Section or Section 6.15,
except to increase any such percentage or to provide that certain other
provisions of this Standard Provisions Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Bond
affected thereby.
The Trustee may in its discretion determine whether any Bonds of a particular
series would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Bonds, whether
theretofore or thereafter authenticated and delivered hereunder. The Trustee
shall not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Bondholders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Issuer shall mail to the
Holders of the Bonds to which such supplemental indenture relates a notice
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Standard Provisions Indenture, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Standard Provisions
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Standard Provisions Indenture or otherwise.
Section 10.04. EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution of any supplemental indenture under this Article, this
Standard Provisions Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Standard Provisions
Indenture for all purposes; and every Holder of Bonds of any Series
theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
Section 10.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the TIA as then in effect.
Section 10.06. REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES.
Bonds authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and if required by the Trustee shall,
bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so
determine, new Bonds so modified as to conform, in the opinion of the Trustee
and the Issuer, to any such supplemental indenture which relates to the
Series of which such Bonds are a part may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Bonds of such Series.
ARTICLE ELEVEN: REDEMPTION OF BONDS
Section 11.01. REDEMPTION AT THE OPTION OF THE ISSUER; ELECTION TO REDEEM.
The Bonds of any Class of a Series shall be redeemable at the option of the
Issuer, in whole or in part, on a pro rata, random lot or other selection
basis as specified in the related Terms Indenture, at the Redemption Prices
specified in such Terms Indenture (exclusive of installments of interest and
principal maturing on or prior to such date, payment of which shall have been
made or duly provided for to the Holders of the Bonds on relevant record
dates or as otherwise provided in this Standard Provisions Indenture and such
Terms Indenture).
Installments of interest and principal due on or prior to a Redemption Date
shall continue to be payable to the Holders of such Bonds of such Series as
of the relevant Regular Record Dates according to their terms and the
provisions of Section 3.07. The election of the Issuer to redeem any Bonds
of such Series pursuant to this Section 11.01 shall be made by the
Owner-Trustee and shall be evidenced by an Authorized Officer's Certificate
directing the Trustee to make the payment of the Redemption Price of all of
the Bonds to be redeemed from funds in the Collection Account, the Debt
Service Funds, the Reserve Fund, the Overcollateralization Fund or the Other
Funds, as applicable, and/or from moneys deposited with the Trustee by the
Issuer pursuant to Section 11.06.
The Issuer shall set the Redemption Date and the Redemption Record Date and
give notice thereof to the Trustee pursuant to Section 11.04.
Section 11.02. SPECIAL REDEMPTION.
All or a portion of the Bonds of any Series (except for a Series with monthly
Payment Dates) shall be subject to special redemption on a pro rata, random
lot or other selection basis as specified in the related Terms Indenture, at
the Redemption Price pursuant to this Section 11.02 on the Special Redemption
Date specified in the related Terms Indenture in the event that (i) the
Issuer makes a determination in accordance with Section 12.11(d) that the
available funds on deposit with the Trustee on the next succeeding Payment
Date would not be sufficient to meet principal and interest requirements of
the Bonds of such Series for such Payment Date as the result of the Principal
Prepayments on the Mortgage Collateral securing such Series since the
immediately preceding Payment Date, and (ii) the Issuer elects not to
deposit, by the third calendar day after such determination, the amount
determined by the Issuer pursuant to Section 12.11(d) as necessary to avoid a
special redemption.
The Trustee shall call for special redemption of the principal amount of
Bonds of a Series as determined in accordance with Section 12.11(d) and such
Bonds shall be due and payable on the applicable Special Redemption Date at
the Special Redemption Price. The Special Redemption Date and the Special
Redemption Price shall be as specified in the related Terms Indenture and the
Special Redemption Record Date shall be as set by the Trustee. All payments
of principal pursuant to any special redemption shall be made in the same
priority and manner as payments of principal on any Payment Date. There shall
be no limit upon the number of times the Trustee may call Bonds of a Series
for special redemption and more than one Special Redemption Date may be fixed
by the Trustee during any Due Period so long as (i) the requisite
determination is made pursuant to Section 12.11(d) and (ii) the requirements
of this Article Eleven are complied with.
Section 11.03. REDEMPTION AT THE OPTION OF BONDHOLDERS.
The Bonds of any Class of a Series may be redeemable at the option of the
Bondholders upon the terms and
conditions specified in the related Terms Indenture.
Section 11.04. NOTICE TO TRUSTEE.
Unless otherwise specified in the Terms Indenture for a Series, in case of
any redemption pursuant to Section 11.01, the Issuer shall, at least 15 days
prior to a Redemption Date, notify the Trustee of such Redemption Date, the
Redemption Record Date and the principal amount of any Bonds to be redeemed
on such Redemption date.
Section 11.05. NOTICE OF REDEMPTION OR SPECIAL REDEMPTION BY THE ISSUER.
Notice of redemption pursuant to Section 11.01 and Section 11.02 shall be
given by first-class mail, postage prepaid, mailed not less than 10 days
prior to the applicable Redemption Date or Special Redemption Date, to each
Holder of Bonds of the affected Series, at his address in the Bond Register.
All notices of redemption shall state:
(1) the Redemption Date or Special Redemption Date;
(2) the Redemption Price or Special Redemption Price;
(3) that on a Redemption Date or Special Redemption Date, if Bonds of such
Series are not to be paid in full, the Redemption Price or Special Redemption
Price will become due and payable upon the principal portion of each such
Bond of such Series as shall be specified in such notice and that the amount
payable in respect of the redeemed portion of each such Bond of such Series
shall be limited to the Redemption Price or Special Redemption Price therefor
and that interest thereon shall cease to accrue on said date and that payment
of the Redemption Price or Special Redemption Price will be paid by check
mailed to the Persons whose names appear as the registered Holders thereof on
the Bond Register as of the Redemption Record Date or Special Redemption
Record Date applicable to such Redemption Date or Special Redemption Date
and identified in such notice of redemption;
(4) that on a Redemption Date or Special Redemption Date, if Bonds of a Class
of such Series are to be paid in full, the fact of such payment in full and
that interest thereon shall cease to accrue on said date;
(5) if such payment is the final payment on such Bond of such Series; and
(6) the place where such Bonds of such Series are to be surrendered for
payment of the Redemption Price or Special Redemption Price if such Bonds of
such Series are to be paid in full, which shall be the office or agency of
the Issuer to be maintained as provided in Section 9.02.
Notice of redemption of Bonds of a Series shall be given by the Issuer or, at
the Issuer's request, by the Trustee's failure to give notice of redemption,
or any defect therein, to any Holder of any Bond of a Series selected for
redemption shall not impair or affect the validity of the redemption of any
other Bond of such Series.
Section 11.06. DEPOSIT OF REDEMPTION PRICE OR SPECIAL REDEMPTION PRICE.
In the case of all redemptions, on or before the Business Day next preceding
the giving of notice of redemption as provided in Section 11.05, the Issuer
shall deposit with the Trustee an amount of money sufficient to pay the
Redemption Price or Special Redemption Price of all of the Bonds of the
affected Series which are to be redeemed on such Redemption Date or Special
Redemption Date (unless such payment is to be made from the Collection
Account, the Debt Service Funds, the Reserve Fund, the Overcollateralization
Fund or the Other Funds for such Series).
Section 11.07. BONDS PAYABLE ON REDEMPTION DATE OR SPECIAL REDEMPTION DATE.
Notice of redemption having been given as provided in Section 11.05, the
Bonds of a Series so to be redeemed shall, on the applicable Redemption Date
or Special Redemption Date, become due and payable at the Redemption Price or
the Special Redemption Price and on such Redemption Date or Special
Redemption Date (unless the Issuer shall default in the payment of the
Redemption Price or Special Redemption Price) such Bonds shall cease to bear
interest. On or after the Redemption Date or the Special Redemption Date,
such Bonds shall be paid by the Issuer at the Redemption Price or the Special
Redemption Price; provided, however, that payments due on a Payment Date on
or prior to the Redemption Date or Special Redemption Date shall be payable
to the Holders of such Bonds registered as such on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.07.
If any Bond called for redemption shall not be so paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date or the Special Redemption Date at the applicable Bond
Interest Rate.
ARTICLE TWELVE: ACCOUNTS, ACCOUNTING AND RELEASES
Section 12.01. COLLECTION OF MONEY.
Except as otherwise expressly provided herein, the Trustee may demand payment
or delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all
money and other property payable to or receivable by the Trustee pursuant to
this Standard Provisions Indenture, including all payments due on the
Mortgage Collateral securing a Series in accordance with the terms and
conditions of such Mortgage Collateral. The Trustee shall hold all such
money and property received by it as part of the Trust Estate for the related
Series of Bonds and shall apply it as provided in this Standard Provisions
Indenture and the related Terms Indenture. Except as otherwise expressly
provided in this Standard Provisions Indenture, if any default occurs in the
making of any payment or performance under the Servicing Agreement, the
Back-up Servicing Agreements, the Insurance Polices, the Reinvestment
Agreements or any Mortgage Collateral securing a Series, the Trustee may, and
upon the request of the Holder of a majority in principal amount of the
Outstanding Bonds of such Series shall, take such action as may be
appropriate to ensure such payment or performance, including the institution
and prosecution of appropriate Proceedings. In the event that the Trustee
has not received timely payment on the Mortgage Certificates securing a
Series, the Trustee shall immediately notify GNMA, FNMA, βββββββ Mac or other
appropriate Person or such other Persons designated by any of them, as the
case may be, of the failure to receive such payment. The Trustee shall
request that GNMA, FNMA, βββββββ Mac or other appropriate Person wire such
payments in immediately available funds to the Trustee, or take such other
action as the Trustee shall designate in accordance with the procedures of
GNMA, FNMA, βββββββ Mac or other appropriate person then in effect including
any agreement made with the Issuer. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Standard Provisions Indenture and to proceed thereafter as provided in
Article Six.
Section 12.02. SUPPLEMENTAL DEBT SERVICE FUND.
(a) All moneys received by the Trustee pursuant to Section 4.02(4) with
respect to a Series, together with any Eligible Investments in which such
moneys are or will be invested or reinvested during the term of this Standard
Provisions Indenture and any income or gain realized from such investment,
shall be held by the Trustee in the Supplemental Debt Service Fund as part of
the Trust Estate as security for such Series subject to disbursement and
withdrawal as herein provided. Moneys shall be subject to withdrawal
pursuant to Section 12.02(d)(1), (2) or (3).
(b) All or a portion of the Supplemental Debt Service Fund for each Series
shall be invested and reinvested at the Issuer's direction in one or more
Eligible Investments, provided that the Issuer shall demonstrate compliance
with Section 12.02(e). The Supplemental Debt Service Fund for such Series
shall be invested and reinvested, as fully as practicable in such manner as
the Trustee shall from time to time determine, but only
in one or more Eligible Investments. All income or other gain from such
investments shall be credited to such Supplemental Debt Service Fund and any
loss resulting from such investments shall be charged to such Supplemental
Debt Service Fund. To the extent specified in the Terms Indenture for a
Series, all or a portion of the income or other gain from such Eligible
Investments of such Supplemental Debt Service Fund in excess of the Assumed
Reinvestment Rate for such Series shall be paid to the Issuer or its
designees.
(c) If any amounts invested as provided in Section 12.02(b) shall be needed
for disbursement from the Supplemental Debt Service Fund for a Series as set
forth in Section 12.02(d), the Trustee shall cause a sufficient amount of
such investments to be sold or otherwise converted to cash to the credit of
such Supplemental Debt Service Fund. The Trustee shall not in any way be
held liable for the inability of the Trustee to make any required payment
from the Supplemental Debt Service Fund for a Series because of any
insufficiency of such Supplemental Debt Service Fund either resulting from
any loss of investment in any Eligible Investment or resulting from
disbursements made pursuant to Section 12.02(d).
(d) Disbursements from the Supplemental Debt Service Fund for a Series shall
be made, to the extent funds therefor are available, only as follows:
(1) On each Payment Date, Redemption Date or Special Redemption Date
for such Series, as the case may be, the Trustee shall withdraw from
the Supplemental Debt Service Fund for such Series the amount, if any,
of the aggregate Deficiency attributable to the GPM Collateral since
the immediately preceding Payment Date, Redemption Date or Special
Redemption Date for such Series, and the amount, if any, needed to pay
principal of the Bonds of such Series as a result of Principal
Prepayments of GPM Collateral securing such Series since the
immediately preceding Payment Date, Redemption Date or Special
Redemption Date for such Series, all as to be set forth in the Reports
called for in Section 12.11(a) and (b) and shall deposit such amount in
the Collection Account for such Series;
(2) If, at the close of business on the last Business Day prior to a
Payment Date, Redemption Date or Special Redemption Date for a Series,
as the case may be, the Trustee shall not have available in the
Collection Account for such Series with respect to the Mortgage
Collateral an amount which, together with the amount to be transferred
pursuant to Section 12.02(d)(1), Section 12.03(d)(1), Section
12.04(d)(1), Section 12.05(d)(1) and Section 12.06(d)(1), shall be
sufficient to make the payments due from such Mortgage Collateral to
Holders of Bonds of such Series on such Payment Date, Redemption Date
or Special Redemption Date, the Trustee shall withdraw first from the
Reserve Fund for such Series, second from the Overcollateralization
Fund for such Series, third from the Other Funds for such Series,
fourth from the Supplemental Debt Service Fund for such Series, and
fifth from the Buy-Down Fund for such Series an amount equal to the
insufficiency and shall deposit such amount in the Collection Account
for such Series. The Trustee shall notify the Issuer of any such
withdrawal; and
(3) Upon receipt by the Trustee of an officer's certificate of the
Issuer to the effect that, with respect to all of the GPM Collateral
securing such Series, the amount of the Supplemental Debt Service Fund
for such Series required at such time pursuant to Section 12.02(e) is
less than the amount of such Supplemental Debt Service Fund then held
by the Trustee, the Trustee shall on the next succeeding Payment Date
pay to the Issuer or its designees or assigns an amount equal to the
difference between the amount of such Supplemental Debt Service Fund
then held by the Trustee and the amount set forth in such officers'
certificate, which amount shall thereupon be deemed not to be part of
the Trust Estate for such Series.
(e) The amount required to be maintained in the Supplemental Debt Service
Fund for a Series as of any date shall be an amount which, when taken
together with Reinvestment Income thereon at the applicable Assumed
Reinvestment Rate, will equal for each item of GPM Collateral securing such
Series valued on level debt service basis in calculating its Initial Bond
Value an amount sufficient to pay the greater of (i) the aggregate remaining
Deficiency with respect to such item of GPM Collateral together with
Reinvestment Income thereon at the applicable Assumed Reinvestment Rate
(computed on a Due Period basis) or (ii) the amount, if any, by which the
Outstanding Bond Value of such item of GPM Collateral (calculated by valuing
the scheduled payments on
such item of GPM Collateral on a level debt service basis) exceeds the
Outstanding Mortgage Collateral Amount of such item of GPM Collateral.
Section 12.03. BUY-DOWN FUND.
(a) All moneys received by the Trustee pursuant to Section 4.02(7) with
respect to a Series, together with any Eligible Investments in which such
moneys are or will be invested or reinvested during the term of this Standard
Provisions Indenture and any income or other gain realized from such
investment shall, be held by the Trustee in the Buy-Down Fund as part of the
Trust Estate as security for such Series subject to disbursement and
withdrawal as herein provided. Moneys shall be subject to withdrawal
pursuant to Section 12.03(d)(1), (2) or (3).
(b) All or a portion of the Buy-Down Fund for a Series shall be invested and
reinvested at the Issuer's direction in one or more Eligible Investments,
provided that such investment shall demonstrate compliance with Section
12.03(e). If the Issuer shall not have given any directions pursuant to this
Section 12.03(b), the Buy-Down Fund for such Series shall be invested and
reinvested, as fully as practicable, in such manner as the Trustee shall from
time to time determine, but only in one or more Eligible Investments. All
income or other gain from such investments shall be credited to such Buy-Down
Fund and any loss resulting from such investments shall be charged to such
Buy-Down Fund. To the extent specified in the Terms Indenture for a Series,
all or a portion of the income or other gain from such Eligible Investments
of such Buy-Down Fund in excess of the applicable Assumed Reinvestment Rate
for such Series shall be paid to the Issuer or its designees.
(c) If any amounts invested as provided in Section 12.03(b) shall be needed
for disbursement from the Buy-Down Fund for a Series as set forth in Section
12.03(d), the Trustee shall cause a sufficient amount of such investments of
such Buy-Down Fund to be sold or otherwise converted to cash to the credit of
such Buy-Down Fund. The Trustee shall not in any way be held liable for the
inability of the Trustee to make any required payment from the Buy-Down Fund
for a Series because of any insufficiency of such Buy-Down Fund either
resulting from any loss of investment in any Eligible Investment or resulting
from disbursements made pursuant to Section 12.03(d).
(d) Disbursements from the Buy-Down Fund for a Series shall be made, to the
extent funds therefor are available only as follows:
(1) On each Payment Date, Redemption Date or Special Redemption Date
for such Series, as the case may be, the Trustee shall withdraw from
the Buy-Down Fund for such Series the amount, if any, of the aggregate
Shortfall attributable to the Mortgage Collateral since the immediately
preceding Payment Date, Redemption Date or Special Redemption Date for
such Series as set forth in Section 12.11(d) and shall deposit such
amount in the Collection Account for such Series;
(2) If, at the close of business on the last Business Day prior to a
Payment Date, Redemption Date or Special Redemption Date for a Series,
as the case may be, the Trustee shall not have available in the
Collection Account for such Series an amount which, together with the
amount to be transferred pursuant to Section 12.02(d)(1), Section
12.03(d)(1), Section 12.04(d)(1), Section 12.05(d)(1) and Section
12.06(d)(1), shall be sufficient to make the payments due from such
Mortgage Collateral to Holders of Bonds of such Series on such Payment
Date, Redemption Date or Special Redemption Date, the Trustee shall
withdraw first from the Reserve Fund for such Series, second from the
Overcollateralization Fund for such Series, third from the Other Funds
for such Series, fourth from the Supplemental Debt Service Fund for
such Series, and fifth from the Buy-Down Fund for such Series an amount
equal to the insufficiency and shall deposit such amount in the
Collection Account for such Series. The Trustee shall notify the
Issuer of any such withdrawal; and
(3) Upon receipt by the Trustee of an officers' certificate of the
Issuer to the effect that the amount of the Buy-Down Fund for a Series
required at such time, pursuant to Section 12.03(e), is less than the
amount of such Buy-Down Fund then held by the Trustee, the Trustee
shall on the next succeeding Payment Date pay to the Issuer or its
designees or assigns an amount equal to the difference between the
amount of such Buy-Down Fund then held by the Trustee and the amount
set forth in such officers' certificate, which amount shall thereupon
be deemed not to be part of the Trust Estate for such Series.
(e) The amount required to be maintained in the Buy-Down Fund for a Series
as of any date shall be an amount which, when taken together with
Reinvestment Income thereon at the applicable Assumed Reinvestment Rate
(computed on a Due Period basis), will equal for each Buy-Down Pledged Loan
securing such Series, an amount sufficient to pay fully the remaining
Shortfall with respect to each such Buy-Down Pledged Loan.
Section 12.04. OVERCOLLATERALIZATION FUND.
(a) All monies received by the Trustee pursuant to Section 4.02(7) with
respect to a Series, together with any Eligible Investments in which such
monies are or will be invested or reinvested during the term of this Standard
Provisions Indenture and any income or other gain realized from such
investment, shall be held by the Trustee in the Overcollateralization Fund as
part of the Trust Estate as security for such Series subject to disbursement
or withdrawal as herein provided. Monies shall be subject to withdrawal
pursuant to Section 12.04(d)(1), (2) or (3).
(b) All or a portion of the Overcollateralization Fund for a Series shall be
invested or reinvested at the Issuer's direction in one or more Eligible
Investments provided that such investment shall demonstrate compliance with
Section 12.04(e). If the Issuer shall not have given any direction pursuant
to this Section 12.04(b), the Overcollateralization Fund for such Series
shall be invested and reinvested, as fully as practicable, in such manner as
the Trustee from time to time determines, but only in one or more Eligible
Investments. All income or other gains from such investments shall be
credited to such Overcollateralization Fund and any loss resulting from such
investment shall be charged to such Overcollateralization Fund. To the
extent specified in the Terms Indenture for a Series, all or a portion of the
income or other gains from such Eligible Investments of such
Overcollateralization Fund in excess of the applicable Assumed Reinvestment
Rate for such Series shall be paid to the Issuer or its designees.
(c) If any amounts invested as provided in Section 12.04(b) shall be needed
for disbursement from the Overcollateralization Fund for a Series as set
forth in Section 12.04(d), the Trustee shall cause a sufficient amount of
such investments of such Overcollateralization Fund to be sold or otherwise
converted to cash to the credit of such Overcollateralization Fund. The
Trustee shall not in any way be held liable for the inability of the Trustee
to make any required payments from such Overcollateralization Fund because of
any insufficiency of such Overcollateralization Fund either resulting from
any loss of investment in any Eligible Investment or resulting from
disbursements made pursuant to Section 12.04(d).
(d) Disbursements from the Overcollateralization Fund for a Series shall be
made, to the extent funds are therefore available, only as follows:
(1) On each Payment Date, Redemption Date or Special Redemption Date
for a Series, as the case may be, the Trustee shall withdraw from the
Overcollateralization Fund for such Series the amount, if any, to fund
Loan Losses occurring during the Due Period and shall deposit such
amount in the Collection Account for such Series;
(2) If at the close of business on the last Business Day prior to a
Payment Date, Redemption Date or Special Redemption Date for a Series,
as the case may be, the Trustee shall not have available in the
Collection Account for such Series an amount which, together with the
amount to be transferred pursuant to Section 12.02(d)(1), Section
12.03(d)(1), Section 12.04(d)(1), Section 12.05(d)(1) and Section
12.06(d)(1), shall be sufficient to make the payments due to Holders of
Bonds of such Series on such Payment Date, Redemption Date or Special
Redemption Date, the Trustee shall withdraw first from the Reserve Fund
for such Series, second from the Overcollateralization Fund for such
Series, third from the Other Funds for such Series, fourth from the
Supplemental Debt Service Fund for such Series, and fifth from the
Buy-Down Fund for such Series an amount equal to the insufficiency and
shall deposit such amount in the Collection Account for such Series.
The Trustee shall notify the Issuer of any such withdrawal from such
Overcollateralization Fund; and
(3) Upon receipt by the Trustee of an officer's certificate of the
Issuer to the effect that the amount of the Overcollateralization Fund
for a Series required at such time pursuant to Section 12.04(e) is less
than the amount of such Overcollateralization Fund then held by the
Trustee, the Trustee shall on the next succeeding Payment Date pay to
the Issuer or its designees or assigns an amount equal to the
difference between the amount of such Overcollateralization Fund then
held by the Trustee and the amount set forth in such officer's
certificate, which amount shall thereupon be deemed not to be part of
the Trust Estate.
(e) The amount required to be maintained in the Overcollateralization Fund
for a Series as of any Payment Date shall be an amount equal to the Aggregate
Initial Overcollateralization Amount reduced by (i) the Aggregate Loan
Losses, if any, and (ii) the difference between the Outstanding Collateral
Value at the Payment Date and the principal amount of the Bonds Outstanding
at the Payment Date.
Section 12.05. OTHER FUNDS.
(a) All monies received by the Trustee pursuant to Section 4.02(8) with
respect to a Series, together with any Eligible Investments in which such
monies are or will be invested or reinvested during the term of this Standard
Provisions Indenture and any income or gain realized from such investment,
shall be held by the Trustee in the Other Funds as part of the Trust Estate
as security for such Series subject to disbursement and withdrawal as herein
provided. Monies shall be subject to withdrawal pursuant to Section
12.05(d)(1), (2) or (3).
(b) All or a portion of the Other Funds for a Series shall be invested or
reinvested at the Issuer's direction in one or more Eligible Investments
provided that the investment shall demonstrate compliance with Section
12.05(e). If the Issuer shall not have given any direction pursuant to this
Section 12.05(b), the Other Funds for such Series shall be invested and
reinvested, as fully as practicable, in such manner as the Trustee shall from
time to time determine, but only in one or more Eligible Investments. All
income or other gains from such investments shall be credited to such Other
Funds and any loss resulting from such investments shall be charged to such
Other Funds. To the extent specified in the Terms Indenture for a Series,
all or a portion of the income or other gain from such Eligible Investments
of such Other Funds in excess of the applicable Assumed Reinvestment Rate for
such Series shall be paid to the Issuer or its designee.
(c) If any amounts invested as provided in Section 12.05(b) shall be needed
for disbursement from the Other Funds for a Series as set forth in Section
12.05(d), the Trustee shall cause a sufficient amount of such investments of
such Other Funds to be sold or otherwise converted to cash for the credit of
such Other Funds. The Trustee shall not in any way be held liable for the
inability of the Trustee to make any required payment from such Other Funds
because of any insufficiency of such Other Funds either resulting from any
loss of investment in any Eligible Investment or resulting from disbursements
made pursuant to Section 12.05(d).
(d) Disbursements from the Other Funds for a Series shall be made, to the
extent that the funds therefor are available, only as follows:
(1) On each Payment Date, Redemption Date or Special Redemption Date
for a Series, as the case may be, the Trustee shall withdraw from the
Other Funds for such Series the amount, if any, required to satisfy the
purposes for which such Other Funds were established as specified in
the related Terms Indenture, and shall deposit such amount in the
Collection Account for such Series;
(2) If, at the close of business on the last Business Day prior to a
Payment Date, Redemption Date or Special Redemption Date for a Series,
as the case may be, the Trustee shall not have available in the
Collection Account for such Series an amount which, together with the
amount to be transferred pursuant to Section 12.02(d)(1), Section
12.03(d)(1), Section 12.04(d)(1), Section 12.05(d)(1) and Section
12.06(d)(1) shall be sufficient to make the payment due to Holders of
Bonds of such Series on
such Payment Date, Redemption Date or Special Redemption Date, the
Trustee shall withdraw first from the Reserve Fund for such Series,
second from the Overcollateralization Fund for such Series, third from
the Other Funds for such Series, forth from the Supplemental Debt
Service Fund for such Series, and fifth from the Buy-Down Fund for such
Series an amount equal to the insufficiency and shall deposit such
amount in the Collection Account for such Series. The Trustee shall
notify the Issuer of any such withdrawal from such Other Funds; and
(3) Upon receipt by the Trustee of an officer's certificate of the
Issuer to the effect that the amount of the Other Funds for a Series
required at such time, pursuant to Section 12.05(e), is less than the
amount of such Other Funds then held by the Trustee, the Trustee shall
on the next succeeding Payment Date pay to the Issuer or its designees
or assigns an amount equal to the difference between the amount of such
Other Fund then held by the Trustee and the amounts set forth in such
officer's certificate, which amount shall thereupon be deemed not to be
part of the Trust Estate.
(e) The Other Funds for a Series shall be an amount set forth in the related
Terms Indenture on the Issue Date of such Series reduced by any disbursements
pursuant to Subsections (d)(1) or (2) of this Section 12.05 and less such
additional amount as will not result in the lowering of the then rating of
the Bonds of such Series by any rating agency rating the Bonds of such Series.
Section 12.06. RESERVE FUND.
(a) All moneys received by the Trustee pursuant to Section 4.02(6) with
respect to a Series, together with any Eligible Investments in which such
moneys are or will be invested or reinvested during the term of this Standard
Provisions Indenture and any income or other gain realized from such
investment, shall be held by the Trustee in a separate fund (the "Reserve
Fund") as part of the Trust Estate as security for such Series subject to
disbursement and withdrawal as herein provided. Moneys shall be subject to
withdrawal pursuant to Section 12.06(d)(1), (2) or (3).
(b) All or a portion of the Reserve Fund for a Series shall be invested and
reinvested at the Issuer's direction in one or more Eligible Investments
provided that such investment shall demonstrate compliance with Section
12.06(e). If the Issuer shall not have given any directions pursuant to this
Section 12.06(b), the Reserve Fund for such Series shall be invested and
reinvested, as fully as practicable, in such manner as the Trustee shall from
time to time determine, but only in one or more Eligible Investments. All
income or other gain from such investments shall be credited to such Reserve
Fund and any loss resulting from such investments shall be charged to such
Reserve Fund. To the extent specified in the Terms Indenture for a Series,
all or a portion of the income or other gain from such Eligible Investments
of such Reserve Fund in excess of the applicable Assumed Reinvestment Rate
for such Series shall be paid to the Issuer or its designees.
(c) If any amounts invested as provided in Section 12.06(b) shall be needed
for disbursement from the Reserve Fund for a Series as set forth in Section
12.06(d), the Trustee shall cause a sufficient amount of such investments of
such Reserve Fund to be sold or otherwise converted to cash to the credit of
such Reserve Fund. The Trustee shall not in any way be held liable for the
inability of the Trustee to make any required payment from such Reserve Fund
because of any insufficiency of such Reserve Fund either resulting from any
loss of investment in any Eligible Investment or resulting from
disbursements made pursuant to Section 12.06(d).
(d) Disbursements from the Reserve Fund for a Series shall be made, to the
extent funds therefor are available, only as follows:
(1) On each Payment Date, Redemption Date or Special Redemption Date
for a Series, as the case may be, the Trustee shall withdraw from the
Reserve Fund the amount, if any, required to satisfy the purposes for
which such Reserve Fund was established as specified in the related
Terms Indenture, and shall deposit such amount in the Collection
Account for such Series;
(2) If, at the close of business on the last Business Day prior to a
Payment Date, Redemption Date or
Special Redemption Date for a Series, as the case may be, the Trustee
shall not have available in the Collection Account for such Series an
amount which, together with the amount to be transferred pursuant to
Section 12.02(d)(1), Section 12.03(d)(1), Section 12.04(d)(1), Section
12.05(d)(1) and Section 12.06(d)(1) shall be sufficient to make the
payments due to Holders of Bonds of such Series on such Payment Date,
Redemption Date or Special Redemption Date, the Trustee shall withdraw
from the Reserve Fund for such Series an amount equal to the
insufficiency and shall deposit such amount in the Collection Account
for such Series. The Trustee shall notify the Issuer of any such
withdrawal from such Reserve Fund; and
(3) upon receipt by the Trustee of an officers' certificate of the
Issuer to the effect that the amount of the Reserve Fund for a Series
required at such time, pursuant to Section 12.06(a) is less than the
amount of such Reserve Fund then held by the Trustee, the Trustee shall
on the next succeeding Payment Date pay to the Issuer or its designees
or assigns an amount equal to the difference between the amount of such
Reserve Fund then held by the Trustee and the amount set forth in such
officers' certificate, which amount shall thereupon be deemed not to be
part of the Trust Estate.
(e) The Reserve Funds for a Series shall be an amount set forth in the
related Terms Indenture on the Issue Date of such Series reduced by any
disbursements pursuant to Subsections (d)(1) or (2) of this Section 12.06 and
less such additional amount as will not result in the lowering of the then
rating of the Bonds of such Series by any Rating Agency rating the Bonds of
such Series.
Section 12.07. COLLECTION ACCOUNT.
The Trustee shall, prior to the Delivery Date of the Series No. 1 Bonds,
establish the Collection Account for such Series into which the Trustee shall
from time to time deposit all Collateral Proceeds relating to such Series
(including any proceeds from any deposits to be made by the Services or the
Back-up Servicer pursuant to the Servicing Agreements and Back-up Servicing
Agreement, respectively, with respect to such Series and including any
proceeds from any Insurance Policies for such Series) and all proceeds
transferred from the Debt Service Funds, the Reserve Fund, the
Overcollateralization Fund and the Other Funds with respect to such Series;
provided, however, that all amounts as provided by Section 4.02(17) shall be
deposited in such Collection Account on the Delivery Date. All moneys
deposited from time to time in the Collection Account for a Series pursuant
to this Standard Provisions Indenture shall be held by the Trustee as part of
the Trust Estate for such Series as herein provided:
(a) All payments to be made from time to time by the Trustee to the Holders
of Bonds of a Series out of funds in the Collection Account for such Series
pursuant to this Standard Provisions Indenture shall be made by the Trustee
as the Paying Agent of the Issuer;
(b) Moneys in the Collection Account for a Series shall be invested and
reinvested, but only in one or more Eligible Investments, by the Trustee in
such manner as the Issuer shall from time to time determine, or, if the
Issuer shall not have given any directions, as the Trustee shall direct.
All income or other gain from such investments shall be credited to such
Collection Account and any loss resulting from such investments shall be
charged to such Collection Account. If any amounts invested as aforesaid
shall be needed for disbursement from the Collection Account for a Series to
make the payments due to Holders of Bonds of such Series or to the Issuer as
set forth in the Bond Valuation Report delivered pursuant to Section
12.11(c), the Trustee shall cause a sufficient amount of such investments of
such Collection Account to be sold or otherwise converted to cash to the
credit of such Collection Account. The Trustee shall not in any way be held
liable for any insufficiency in any Collection Account resulting from any
loss on any Eligible Investment; and
(c) Notwithstanding any other provision of this Section 12.07, the Trustee
may accept principal and interest payments on any Mortgage Collateral prior
to the Due Date thereof and distribute from any investment earnings thereof
to such Due Date at the direction of the Issuer pursuant to Section 13.01(a).
Section 12.08. SUPPLEMENTAL CUSTODIAL RESERVE FUND.
The Trustee shall, prior to the Delivery Date of the Bonds of a Series,
establish the Supplemental Custodial Reserve Fund for such Series into which
the Trustee shall deposit monthly funds withdrawn from the Collection Account
for such Series required to pay insurance premiums on Insurance Policies
securing such Series, amounts required to be paid to the Back-up Servicer, if
any, pursuant to the Back-up Servicing Agreement with respect to such Series
and amounts, if any, due to each Servicer of a Pledged Loan securing such
Series under its Servicing Agreement, all in such amounts set forth in the
monthly Accounting Report referred to in Section 12.11.
(a) All or a portion of the Supplemental Custodial Reserve Fund for a Series
shall be invested and reinvested at the Issuer's direction in one or more
Eligible Investments. If the Issuer shall not have given any direction
pursuant to this Section 12.08, such Supplemental Custodial Reserve Fund
shall be invested and reinvested for the account of the Issuer as fully as
practicable in such manner as the Trustee shall from time to time determine,
but only in one or more Eligible Investments.
(b) Disbursements from the Supplemental Custodial Reserve Fund for a Series
shall be made, to the extent funds therefor are available, and the Trustee
shall withdraw from the Supplemental Custodial Reserve Fund the amount, if
any, set forth in any monthly Accounting Report referred to in Section
12.11(b) as the amount, if any, required to be so withdrawn and at the times
therein specified in order to make the payments due to pay the premiums on
the Excess Coverage Mortgage Insurance Policies, the Pool Insurance Policy,
the Special Hazard Insurance Policy, the Mortgagor Bankruptcy Bond, the
Prepayment Interest Bond, the Repurchase Bond and any endorsements to
Insurance Policies obtained by or on behalf of the Issuer with respect to
such Series and amounts due under the Back-Up Servicing Agreement for such
Series.
(c) On each anniversary date of the Issue Date of a Series and after the
payment of all insurance premiums, the Trustee may release to the Issuer upon
the Issuer's Request any amount remaining on deposit in the Supplemental
Custodial Reserve Fund for such Series and such amount shall thereupon be
deemed not to be a part of the Trust Estate for such Series.
Section 12.09. PREPAYMENT RESERVE ACCOUNT.
To the extent provided in the Terms Indenture for a Series, the Trustee
shall, prior to the Delivery Date of the Bonds of such Series, establish a
separate account (the "Prepayment Reserve Account") for such Series, into
which the Trustee shall deposit on each Payment Date an amount specified in
Section 12.11(c)(13).
(1) Upon the Issuer's Order all or a portion of the Prepayment
Reserve Account for a Series shall be invested and reinvested at
the Issuer's direction in one or more Eligible Investments. If
the Issuer shall not have given any direction pursuant to this
Section 12.09, such Prepayment Reserve Account shall be invested
and reinvested for the account of the Issuer as fully as
practicable in such manner as the Trustee shall from time to time
determine, but only in one or more Eligible Investments.
(2) On any Payment Date, the Trustee shall withdraw from the
Prepayment Reserve Account an amount calculated in accordance with
12.11(c)(13), and shall deposit such amount in the Collection
Account for such Series.
Section 12.10. REPORTS BY TRUSTEE.
The Trustee shall timely supply to the Issuer any information maintained by
the Trustee pursuant to the Indenture as the Issuer may from time to time
request for a Series on the Mortgage Collateral, the Debt Service Funds, the
Reserve Fund, the Overcollateralization Fund, the Other Funds, the Collection
Account and the Supplemental Custodial Reserve Fund reasonably needed to
complete the Accounting Report or the Bond Valuation Report for such Series
or to provide any other information available to the Trustee and required by
Section 12.11.
Section 12.11. ACCOUNTING.
(a) Mortgage Collateral Report: Not later than two Business Days after
the Determination Date the Issuer shall compile and provide, or cause to
be compiled and provided, to the Trustee and the Issuer a Mortgage
Collateral Report which shall contain the following information and
instructions:
(1) the principal payments with respect to each item of
Mortgage Collateral to be received by, or credited to the account
of, the Trustee; and
(2) the payments of interest (net of servicing, Primary
Mortgage Insurance Policy premiums and agency guarantee fees
withheld by the Services of each item of Mortgage Collateral) on
each item of Mortgage Collateral to be received by, or credited to
the account of, the Trustee.
(b) Monthly: Not later than the last Business Day of each month, or
such other date as may be provided in the Terms Indenture, the Issuer
shall compile and provide or cause to be compiled and provided to the
Trustee the monthly Accounting Report which shall contain the following
information and instructions with respect to the Mortgage Collateral
securing each Series of Bonds:
(1) The Outstanding Mortgage Collateral Amount as of the
Determination Date for the current month;
(2) The insurance premiums, servicing and other fees to be
deposited into the Supplemental Custodial Reserve Fund out of the
payments of interest pursuant to Sections 4.02(21) and 12.08.
(3) The amount of Shortfall, if any, with respect to the Buy-Down
Pledged Loans;
(4) The amount of Deficiency, if any, with respect to the GPM
Collateral;
(5) The amount of any Loan Losses, if any, with respect to
Pledged Loans;
(6) The amount, if any, advanced by Services or the Back-Up
Servicer as advances pursuant to the Servicing Agreements or the
Back-Up Servicing Agreement for nonpayment by the mortgagors;
(7) Instructions to pay to the Back-Up Servicer or a Servicer for
reimbursement the amount of any advances that are not recoverable
from Insurance Proceeds or Liquidation Proceeds;
(8) Instructions to deposit to and/or withdraw from the
Supplemental Custodial Reserve Fund the amounts set forth pursuant
to Section 12.08, the names of the payees thereof and the dates of
the required payments;
(9) Instructions to withdraw from the Overcollateralization Fund
the amounts to be paid to the Back-Up Servicer or Servicers
pursuant to Section 12.04;
(10) Instructions to withdraw from the Buy-Down Fund the amount
set forth pursuant to Section 12.03 (d)(2) and to deposit such
amount in the Collection Account;
(11) Instructions to withdraw from the Supplemental Debt Service
Fund the amount set forth pursuant to Section 12.02(d)(2) and to
deposit such amount in the Collection Account; and
(12) If applicable, the Eligible Investments to be invested in
and the amount of each such investment to be made from the
deposits to the Collection Account during the current month.
(c) Payment Date: Not later than the last Business Day of the month
preceding a Payment Date, or such other date as may be provided in the
Terms Indenture, the Issuer shall compile and provide or cause to be
compiled
and provided to the Trustee the Bond Valuation Report which shall contain
the following information and instructions with respect to the Series:
(1) The balance required in the Supplemental Debt Service Fund
pursuant to Section 12.02(e) as of the most recent Determination
Date and any excess or deficiency with respect to such fund;
(2) The balance required in the Buy-Down Fund pursuant to Section
12.03(e) as of the most recent Determination Date and any excess
or deficiency with respect to such fund;
(3) The balance required in the Overcollateralization Fund
pursuant to Section 12.04(e) as of the most recent Determination
Date and any excess or deficiency with respect to such fund;
(4) The balance required in the Reserve Fund pursuant to the
Terms Indenture as of the most recent Determination Date and any
excess or deficiency with respect to such fund;
(5) The balance required in any of the Other Funds pursuant to
the Terms Indenture as of the most recent Determination Date any
excess or deficiency with respect to such funds;
(6) The interest due and payable on the next Payment Date on each
Class of Bonds of the Series;
(7) The interest accrued for the current Due Period on each Class
of Compound Interest Bonds of the Series that is to be added to
the principal of such Bonds on the next Payment Date;
(8) The principal amount of Bonds of each Class to remain
outstanding after the next Payment Date;
(9) The Required Principal Payment on the Bonds of each Class on
the next Payment Date;
(10) The portion, if any, of the Excess Cash that is to be
applied pursuant to the provisions of the Terms Indenture to pay
principal on the Bonds of the Series on the next Payment Date;
(11) The aggregate principal amount to be paid on the Bonds of
such Series on the next Payment Date;
(12) The Aggregate Collateral Value and Aggregate Bond Value of
the Mortgage Collateral securing the Series as of the most recent
Determination Date;
(13) The amount, if any, to be deposited to the Prepayment
Reserve Account on the next Payment Date;
(14) The amount of the administration fees as of the most recent
Determination Date;
(15) The amount, if any, in the Collection Account for the Series
available for distribution to the Issuer.
(16) The amount of Loan Losses, if any, occurring during the Due
Period;
(17) Instructions to deposit on the next Payment Date to the
Collection Account (c) from the Supplemental Debt Service Fund the
amount of the excess, if any, set forth pursuant to Section
12.11(c)(1); and (b) from the Buy-Down Fund the amount of the
excess, if any, set forth pursuant to Section 12.11(c)(2);
(18) Instructions to withdraw on the next Payment Date from the
Collection Account (a) the amount of the deficiency, if any, set
forth pursuant to Section 12.11(c)(1) and to deposit such amount
to the Supplemental Debt Service Fund; and (b) the amount of the
deficiency, if any, set forth pursuant to Section 12.11(c)(2) and
to deposit such amount to the Buy-Down Fund;
(19) Instructions to withdraw on the next Payment Date from the
Collection Account and pay to the Bondholders as principal the
amount set forth pursuant to Section 12.11(c)(11);
(20) Instructions to withdraw on the next Payment Date from the
Collection Account and pay to the Bondholders as interest the
amount set forth pursuant to Section 12.11(c)(6);
(21) Instructions to add to the principal of any Class of
Compound Interest Bonds on the next Payment Date the amount set
forth pursuant to Section 12.11(c)(7);
(22) Instructions to withdraw from the Overcollateralization Fund,
the Reserve Fund and the Other Funds, as the case may be, the
amounts of the excess, if any, determined pursuant to Sections
12.11(c)(3), 12.11(c)(4) and 12.11(c)(5), respectively, and to
deposit such amounts to the Collection Account;
(23) Instructions to withdraw from the Collection Account the
amounts of the deficiency, if any, determined pursuant to Sections
12.11(c)(3), 12.11(c)(4) and 12.11(c)(5) and to deposit such
amounts to the Reserve Fund, the Overcollateralization Fund and
the Other Funds, respectively;
(24) Instructions to withdraw from the Overcollateral-ization
Fund the amount set forth pursuant to Section 12.11(c)(16) and to
deposit such amount to the Collection Account;
(25) Instructions to deposit or withdraw, as the case may be, the
amounts determined pursuant to Section 12.11(c)(13) and 12.09(2)
with respect to the Prepayment Reserve Account;
(26) Instructions to withdraw from the Collection Account the
amounts set forth pursuant to Section 12.11(c)(14) and to pay such
amounts to the payees listed in such instruction on the dates
specified therein; and
(27) Instructions as to the disposition of amounts determined
pursuant to Section 12.11(c)(15) upon their certification required
by Section 13.01(e).
(d) Special Redemption: For each Series that does not provide for
monthly payments of principal and interest, the Issuer shall render or
cause to be rendered to the Trustee a Special Redemption Determination
Report not later than the last Business Day of each month (or such other
date as may be provided in the Terms Indenture) other than a month
immediately preceding a Payment Date. The Special Redemption
Determination Report shall contain the following information and
instructions with respect to the Series:
(1) Determine the Special Redemption Bond Value of the Mortgage
Collateral securing the Series; and
(2) If the principal amount of Bonds Outstanding on the previous
Payment Date exceeds the Special Redemption Bond Value, a Special
Redemption is required in an amount equal to the sum of (a) the
difference between the principal amount of the Bonds Outstanding
on the previous Payment Date and the Special Redemption Bond Value
and (b) interest on the amount calculated pursuant to subsection
(a) above at the applicable Bond Interest Rates, unless the Issuer
deposits in the Collection Account cash or Eligible Investments in
an amount equal to the sum of (a) and (b) above.
The Issuer shall notify the Trustee of the need for a Special Redemption
and the Special Redemption Date by not later than the last day of each
month (or such other date specified in the Terms Indenture) other than a
month preceding a Payment Date.
Section 12.12. TRUST ESTATE.
(a) The Trustee may, and when required by the provisions of this
Standard Provisions Indenture shall, execute instruments to release
property from the lien of this Standard Provisions Indenture, or convey
the Trustee's interest in the same, in a manner and under circumstances
which are not inconsistent with the provisions of this Standard
Provisions Indenture. No party relying upon an instrument executed by
the Trustee as provided in this Article Twelve shall be bound to
ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
(b) Upon the request of the Servicer accompanied by an officers'
certificate and such other documents as required by the Servicing
Agreement for a Series, to the effect that a Pledged Loan securing such
Series has been the subject of a full prepayment so as to become a
prepaid Pledged Loan and stating the fair value thereof, the Trustee
shall release such Pledged Loan including the related Loan Documents to
the Servicer or its designees or assigns in accordance with the
recommendation of the Servicer. Subject to Section 13.05, upon the
Issuer's Request accompanied by an officers' certificate of the Issuer
pursuant to Section 12.02(d)(3), Section 12.03(d)(3), Section
12.04(d)(3), Section 12.05(d)(3) or Section 12.06(d)(3), or upon the
Issuer's Request accompanied by an Officers' Certificate of the Issuer
to the effect that a GNMA Certificate, a βββββββ Mac PC, a FNMA MBS or an
Other Mortgage Certificate has been the subject of a full prepayment so
as to become a prepaid GNMA Certificate, a prepaid βββββββ Mac PC, a
prepaid FNMA MBS or a prepaid Other Mortgage Certificate and stating the
fair value thereof, the Trustee shall promptly release such GNMA
Certificate, βββββββ Mac PC, FNMA MDS or other Mortgage Certificate or
such excess funds in the Supplemental Debt Service Fund, the Buy-Down
Fund, the Reserve Fund, the Overcollateralization Fund or the Other Funds
to the Issuer or its designees or assigns. However, in the event the
amount of the Mortgage Collateral released from the lien of the Standard
Provisions Indenture for such Series for the then current calendar year
equals or exceeds 10% of the aggregate principal amount of the Bonds of
such Series then Outstanding, a certificate shall be provided by an
Independent appraiser or other expert stating the fair value of such
Mortgage Collateral.
(c) In any case in which a Mortgaged Property is to be conveyed to a
Person by a borrower, and the Person is to enter into an assumption
agreement or other equivalent agreement or agreements as provided for in
the Servicing Agreement for a Series which require the signature of the
Trustee, the Servicer shall obtain from the Servicer such agreement or
agreements and such other appropriate documents and deliver them to the
Trustee for signature with a letter explaining the nature of such
documents and the reason or reasons why the Trustee's signature is
required. With such letter, the Servicer shall deliver an officers'
certificate as required by such Servicing Agreement.
(d) Upon compliance with the terms of Section 3.10 relating to the
substitution of an item of Substitute Mortgage Collateral in exchange for
an item of Original Mortgage Collateral or Substitute Mortgage
Collateral, the Trustee shall release to the Issuer or its designees or
assigns (1) the item of Original Mortgage Collateral or Substitute
Mortgage Collateral, (2) all Collateral Proceeds received by the Trustee
on such item of Original Mortgage Collateral or Substitute Mortgage
Collateral on the Due Date prior to the Subsequent Delivery Date, (3) all
amounts deposited in the Collection Account with the Trustee with respect
to such item of Original Mortgage Collateral or Substitute Mortgage
Collateral on the Delivery Date, (4) any investment earnings on such
Collateral Proceeds and such amounts deposited in the Collection Account,
and (5) amounts on deposit in any funds or accounts hereunder relating to
such item of Original Mortgage Collateral or Substitute Mortgage
Collateral.
(e) The Trustee shall, at such time as there are no Bonds Outstanding
for a Series, release the Trust Estate for such Series for the lien of
this Standard Provisions Indenture in accordance with Article Five and
deliver the Trust Estate to the Issuer.
(f) Upon the Issuer's Request, accompanied by an Officers' Certificate
of the Issuer (i) to the effect that, as of the Payment Date immediately
preceding the date of such Officers' Certificate (or, if prior to the
first Payment Date, as of the Issue Date), the Aggregate Outstanding Bond
Value of the Mortgage Collateral securing the Series exceeds the unpaid
principal amount of the Bonds of such Series, (ii) requesting a release
of an amount of such Mortgage Collateral or cash not exceeding such
excess, and representing that each Rating Agency rating
the Bonds of such Series has confirmed that the release of such Mortgage
Collateral or cash will not result in lowering of the then rating of such
Bonds, (iii) and stating the fair value of such Mortgage Collateral, the
Trustee shall on the next succeeding Payment Date release from the lien
of this Standard Provisions Indenture such Mortgage Collateral or cash or
portions thereof; provided, however, that in the event the amount of the
Mortgage Collateral released from the lien of the Standard Provisions
Indenture for the then current calendar year equals or exceeds 10% of the
aggregate principal amount of the Bonds of such Series then Outstanding,
a certificate shall be provided by an Independent appraiser or other
expert stating the fair value of such Mortgage Collateral. The Officers'
Certificate provided by the Issuer in this Section 12.12(f) shall be
accompanied by a certificate of the firm of Independent certified public
accountants reporting on the financial statements of the Issuer for its
immediately preceding fiscal year certifying as to the amount of the
excess.
Section 12.13. RELEASES OF PLEDGED LOANS WITHDRAWN BY SERVICER.
If any of the representations or warranties of any Servicer set forth in
its Servicing Agreement with respect to any Pledged Loan securing a
Series was materially incorrect or otherwise misleading as of the time
made, the Back-up Servicer for such Series or such Servicer shall either
(i) within 90 days after the Issuer discovers such incorrectness,
eliminate or otherwise cure the circumstance or condition in respect of
which such representation or warranty was incorrect as of the time made,
or (ii) withdraw such Pledged Loan from the lien of this Standard
Provisions Indenture immediately following the expiration of such 90-day
period by depositing in the Collection Account for such Series an amount
equal to the Outstanding Pledged Loan Amount plus interest thereon at the
Mortgage Rate to the end of the month of withdrawal. It is understood
that, without limiting the meaning of the term "materially incorrect or
otherwise misleading," the representations and warranties shall be
materially incorrect or otherwise misleading if (a) the Initial Bond
Value of any Pledged Loan set forth in the applicable Schedule to the
related Terms Indenture would have been smaller had the representations
or warranties with respect to such Pledged Loan been correct as of the
time made or (b) the Trustee or any Holders of Bonds of such Series are
put under any obligation to pay any other Person any sum of money as a
result of any such representation or warranty not being correct as of the
time made.
Section 12.14. DELIVERY OF THE LOAN DOCUMENTS PURSUANT TO BACK-UP
SERVICING AGREEMENT.
As is appropriate for the servicing or foreclosure of any Pledged Loan
securing a Series, the Trustee shall deliver to the Back-Up Servicer for
such Series, or to the Servicer of such Pledged Loan if designated by
such Back-Up Servicer, the Loan Documents for such Pledged Loan upon
receipt by the Trustee on or prior to the Date such release is to be made
of:
(a) Such Officers' Certificate as is required by the Back-Up Servicing
Agreement for such Series; and
(b) A trust receipt in the form prescribed by the Back-Up Servicing
Agreement for such Series, executed by the Back-Up Servicer, providing
that the Back-Up Servicer will hold or retain the Loan Documents in trust
for the benefit of the Trustee and the Holders of Bonds of such Series.
Section 12.15. RECORDS.
In order to facilitate the servicing of the Pledged Loans securing a
Series by the Servicer and the Back-up Servicer for such Series, the
Servicer and the Back-up Servicer shall retain, in accordance with the
provision of the Servicing Agreement or the Back-Up Servicing Agreement
for such Series and this Standard Provisions Indenture, the Records. The
Trustee hereby designates the Servicer or the Back-up Servicer its agent
and bailee to hold the Records pursuant to the Servicing Agreement. By
the designation pursuant to this Section 12.15 and the acceptance of such
designation by the Servicer or the Back-up Servicer pursuant to the
Servicing Agreement, the Trustee, as a secured party, has possession of
the Records for purposes of the California Uniform Commercial Code.
Section 12.16. COLLECTIONS ON THE PLEDGED LOANS.
In order to facilitate the servicing of the Pledged Loans securing a
Series by the Services of such Pledged Loans, each Servicer of a Pledged
Loan securing such Series shall retain, in accordance with the provisions
of the applicable Servicing Agreement, the Back-Up Servicing Agreement
for such Series and this Standard Provisions Indenture, all collections
on such Pledged Loans prior to the time they are deposited into the
Collection Account for such Series. The Trustee hereby designates each
Servicer of a Pledged Loan securing a Series as its agent and bailee to
hold such collections on such Pledged Loans until they are deposited into
the Collection Account for such Series. By the designation pursuant to
this Section 12.16 and the acceptance of such designation by each
Servicer of a Pledged Loan pursuant to its Servicing Agreement, the
Trustee, as secured party, has possession of all collections on the
Pledged Loans for purposes of the California Uniform Commercial Code.
Section 12.17. AMENDMENTS TO BACK-UP SERVICING AGREEMENT.
The Trustee may, without the consent of any Holder of a Bond of a Series,
enter into or consent to any amendment or supplement to the Back-Up
Servicing Agreement with respect to such Series for the purpose of
increasing the obligations or duties of any party other than the Trustee
or the Holders of Bonds of such Series. The Trustee may, in its
discretion, decline to enter into or consent to any such supplement or
amendment if its own rights, duties or immunities shall be adversely
affected.
Section. 12.18. TERMINATION OF SERVICING AGREEMENTS.
If any Servicer of a Pledged Loan securing a Series materially breaches
or fails to perform or observe any obligations or conditions in its
Servicing Agreement, the Back-Up Servicing Agreement for such Series
requires the Back-Up Servicer for such Series to promptly deliver to the
Trustee and to the Issuer an Officers' Certificate setting forth the
recommendations of the Back-Up Servicer as to what action, if any, should
be taken by the Trustee. In accordance with this recommendation, the
Trustee may terminate any such Servicing Agreement. The Trustee shall
not terminate a Servicing Agreement without cause or incur any
termination fee unless such action can reasonably be expected to benefit
the Holders of Bonds of such Series by increasing ultimate cash proceeds
available to discharge the Bonds of such Series. If the Trustee
terminates any such Servicing Agreement or the Back-Up Servicing
Agreement, the Trustee shall enter into a substitute servicing agreement
for such series or, at the Back-Up Servicer's election, with another
mortgage loan service company acceptable to the Trustee in accordance
with the Back-Up Servicing Agreement for such Series.
Section 12.19. OPINION OF COUNSEL.
The Trustee shall be entitled to receive at least 10 days' notice of any
action to be taken pursuant to Section 12.12 with respect to a Series,
accompanied by copies of any instruments involved, and the Trustee shall
also be entitled to receive an Opinion of Counsel, in form and substance
satisfactory to the Trustee, stating the legal affect of any such action,
outlining the steps required to complete the same, and concluding that
such action will not materially and adversely impair the security for the
Bonds of such Series or the rights of the Holders of Bonds of such Series
in contravention of the provisions of this Standard Provisions Indenture.
Section 12.20. INVESTMENTS.
Notwithstanding anything to the contrary in this Standard Provisions
Indenture, investments of funds held by the Trustee for a Series under
this Standard Provisions Indenture shall be made pursuant to any
Reinvestment Agreements applicable to such Series to the extent provided
in such agreements, and the Trustee shall deposit funds as required by
any such Reinvestment Agreements. No change shall be made in the terms
and conditions of any such Reinvestment Agreements if such change would
result in the lowering of the then rating of the Bonds of such Series by
any Rating Agency rating the Bonds of such Series; however, at all times
the Trustee must invest and hold at least 55% of the initial value of the
Trust Estate in the form of assets secured exclusively by real property;
and at no time shall more than 20% of the total initial value of Trust
Estate consist of assets not secured either exclusively or substantially
by real estate.
ARTICLE THIRTEEN: APPLICATION OF MONEYS
Section 13.01. DISBURSEMENTS OF MONEYS FROM COLLECTION ACCOUNT.
(a) On each Payment Date for a Series, if either no Default or Event of
Default shall have occurred and be continuing or a Default or Event of
Default shall have occurred and be continuing but the entire unpaid
principal amount of the Bonds of such Series shall not have been declared
due and payable pursuant to Section 6.02, then on such Payment Date, the
Trustee shall withdraw from the Collection Account for such Series and
shall make the following disbursements according to the provisions of the
Terms Indenture.
(b) Promptly following (1) the first Payment Date for a Series and (2)
each Payment Date immediately following any anniversary of the Issue Date
for such Series, the Issuer shall cause to be delivered to the Trustee a
statement from a firm of Independent certified public accountants
indicating (i) that such firm has reviewed the Bond Valuation Report and
applicable information from the Issuer and the Trustee, (ii)
that the firm has traced the Outstanding Mortgage Collateral Amount of
the Mortgage Collateral used in the Bond Valuation Report to the
principal balances supplied to the Trustee by the Issuer, (iii) that the
firm has tested the clerical accuracy and methodology of the calculation
of the Aggregate Outstanding Bond Value of the Mortgage Collateral
securing the Bonds of such Series as of such Payment Date, (iv) that the
firm has tested the clerical accuracy and methodology of the Issuer in
calculating the required balances, if any, in the Debt Service Funds, the
Reserve Fund, the Overcollateralization Fund, the Other Funds and the
Prepayment Reserve Account as of such Payment Date, (v) whether the
remaining scheduled cash flow (net of applicable servicing fees,
insurance premiums and other fees) on the Mortgage Collateral and any
necessary withdrawals from the Debt Service Funds, the Reserve Fund, the
Overcollateralization Fund, the Other Funds and the Prepayment Reserve
Account, together with the Reinvestment Income thereon at the applicable
Assumed Reinvestment Rates, will be sufficient to pay each Class of Bonds
of such Series by its Stated Maturity together with interest due thereon,
and (vi) whether the accounting for the Special Redemption Determination
Report is in accordance with Section 12.11(c).
Section 13.02. DISBURSEMENT OF MONEYS FROM PREPAYMENT ACCOUNT.
Notwithstanding any other provision of this Standard Provisions
Indenture, the Trustee shall not disburse to, or to the order of, the
Issuer any excess funds held by it in the Collection Account, the Debt
Service Funds, the Reserve Fund, the Overcollateralization Fund, the
Prepayment Account, the Prepayment Reserve Account, the Supplemental
Custodial Reserve Fund or the Other Funds for a Series, or release any
Mortgage Collateral for a Series or portions thereof pursuant to Section
12.12, or release or reduce the amount of a Mortgage Bankruptcy Bond or a
Mortgage Repurchase Bond, if purchased, unless it shall have received a
certificate of a firm of independent certified public accountants
acceptable to the Trustee to the effect that the disbursement of such
funds or the release or reduction of a Mortgage Bankruptcy Bond or a
Mortgage Repurchase Bond will not impair the security for the Bonds in
contravention of the provisions of this Standard Provisions Indenture.
Section 13.03. DISBURSEMENT OF MONEYS FROM SUPPLEMENTAL CUSTODIAL RESERVE
FUND.
If any monthly Accounting Report for a Series received by the Trustee
sets forth an amount to be withdrawn from the Supplemental Custodial
Reserve Fund for such Series, the Trustee shall withdraw such funds from
such Supplemental Custodial Reserve Fund and timely pay the premiums due
on the applicable Insurance Policy or the amounts due to the Back-up
Servicer or any Servicer of a Pledged Loan securing such Series.
Section 13.04. TRUST ACCOUNT.
With respect to each Series of Bonds, all moneys for a Series held by, or
deposited with the Trustee in any fund or account pursuant to the
provisions of this Standard Provisions Indenture, including the
Collection Account, the Debt Service Funds, the Reserve Fund, the
Overcollateralization Fund, the Supplemental Custodial Reserve Fund, the
Prepayment Reserve Account, the Prepayment Account and the Other Funds
for such Series, and not invested in Eligible Investments as herein
provided, shall be deposited in one or more trust accounts for the
benefit of the Holders of Bonds of such Series. To the extent moneys
deposited in a trust account exceed the Federal Deposit Insurance insured
amounts, such account shall be invested in Eligible Investments in an
amount equal to such excess.
Section 13.05. DISBURSEMENTS OF EXCESS FUNDS; RELEASE OF COLLATERAL.
Notwithstanding any other provision of this Standard Provisions
Indenture, the Trustee shall not disburse to, or to the order of, the
Issuer any excess funds held by it in the Collection Account, the Debt
Service Funds, the Reserve Fund, the Overcollateralization Fund, the
Prepayment Account, the Prepayment Reserve Account, the Supplemental
Custodial Reserve Fund or the Other Funds for a Series, or release any
Mortgage Collateral for a Series or portions thereof pursuant to Section
12.12 unless it shall have received a certificate of a firm of
Independent certified public accountants acceptable to the Trustee to the
effect that the disbursement of such funds will not impair the security
for the Bonds in contravention of the provisions of this Standard
Provisions Indenture.
ARTICLE FOURTEEN: BONDHOLDER'S MEETINGS
Section 14.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Bonds of any or all Series may be called at any
time and from time to time pursuant to the provisions of this Article
Fourteen for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiver of
any Default hereunder and its consequences, or to take any other
action authorized to be taken by Bondholders pursuant to any of
the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Article Ten; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount
of the Bonds of any or all Series under other provision of this
Standard Provisions Indenture or under applicable law.
Section 14.02 MANNER OF CALLING MEETINGS.
the Trustee may at any time call a meeting of Bondholders to take any
action specified in Section 14.01, to be held at such time and at such
place in the United States of America as the Trustee shall determine.
Notice of every meeting of the Bondholders, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be mailed not less than 20 nor more than 60
days prior to the date fixed for the meeting to such Bondholders as
provided in Section 15.05. The Trustee may fix in advance, a date as the
record date for determining the Bondholders entitled to notice of or to
vote at any such meeting not less than 35 nor more that 75 days prior to
the date fixed for such meeting.
Section 14.03. CALL OF MEETING BY ISSUER OR BONDHOLDERS.
In case at any time the Issuer or the Holders of at least 10% in
aggregate principal amount of the Bonds of any Series then Outstanding
shall have requested the Trustee to call a meeting of Bondholders of such
Series to take any action authorized in Section 14.01 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed notice of such meeting
within 20 days after receipt of such request, then the Issuer of the
Holders of Bonds in the amount above specified may determine the time
and place for such meeting, the record date for determining the
Bondholders entitled to notice of or to vote at such meeting, and may
call such meeting to take any action authorized in Section 14.01, by
mailing notice thereof as provided in Section 14.02.
Section 14.04. WHO MAY ATTEND AND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Bondholders of any or all Series
a Person shall (a) be a Holder of one or more Bonds of the Series with
respect to which such meeting was called or (b) be a Person appointed by
an instrument in writing as proxy by a Holder of one or more such Bonds
of the applicable Series. The only Persons who shall be entitled to be
present or to speak at any meeting of Bondholders of any or all Series
shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any
representatives of the Issuer and its counsel.
Section 14.05. REGULATIONS MAY BE MADE BY TRUSTEE.
Notwithstanding any other provisions of this Standard Provisions
Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Bondholders, in regard to proof of the
holding of Bonds and of appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting.
Except as otherwise permitted or required by any such regulations, the
holding of Bonds shall be proved in the manner specified in Section 15.03
and the appointment of any proxy shall be proved in the manner specified
in said Section 15.03; provided, however, that such regulations may
provide that written instruments appointing proxies regular on their face
may be presumed valid and genuine without the proof hereinabove or in
said Section 15.03 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer or by Bondholders as provided in Section 14.03, in which case the
Issuer or the Bondholders calling the meeting as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Holders of a majority in principal amount of the Bonds represented at the
meeting.
At any meeting each Holder of Bonds of any or all Series or proxy shall
be entitled to one vote for each $1,000 of principal amount of
Outstanding Bonds held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Bond
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote other than by virtue of Bonds held by him or instruments in writing
as aforesaid duly designating him as the Person to vote on behalf of
other Bondholders. Any meeting of Bondholders duly called pursuant to
the provisions of Section 14.02 or Section 14.03 may be adjourned from
time to time, and the meeting may be held as so adjourned without further
notice.
At any meeting of Bondholders of any or all Series, the presence of
Persons holding or representing Bonds of the applicable Series in an
aggregate principal amount sufficient to take action on the business for
the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in aggregate principal amount of the Bonds of the
applicable Series represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a quorum
had been present, and the meeting may be held as so adjourned without
further notice.
Section 14.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT.
The vote upon any matter submitted to any meeting of Bondholders shall be
by written ballots on which shall be subscribed the signatures of the
Holders of Bonds or of their representatives by proxy and the serial
number of numbers of the Bonds held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any
resolution and who shall file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record duplicate of the proceedings of each meeting of Bondholders shall
be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 14.02.
The record shall show the serial numbers of the Bonds voting in favor of
and against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Issuer and the other to
the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matter therein stated.
Section 14.07. EXERCISE OF RIGHTS OF TRUSTEE AND BONDHOLDERS NOT TO BE
HINDERED OR DELAYED.
Nothing in this Article Fourteen contained shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Bondholders
or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or of the Bondholder under any
of the provisions of this Standard Provisions Indenture or of the Bonds.
ARTICLE FIFTEEN: MISCELLANEOUS
Section 15.01. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Standard Provisions Indenture,
the Issuer shall furnish to the Trustee an Authorized Officer's
Certificate or an Officer's Certificate stating that all conditions
precedent, if any, provided for in the Standard Provisions Indenture
relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Standard Provisions Indenture relating to such particular application
or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Standard Provisions Indenture shall
include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 15.02. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more 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 or an 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 or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion or, or
representations by, an Authorized Officer or an officer of the Issuer
stating that the information with respect to such factual matters is
in the possession of the Issuer, as the case may be, unless such
counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representation 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 the Standard Provisions Indenture, they may, but
need not, be consolidated and form one instrument.
Section 15.03. ACTS OF BONDHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Standard Provisions Indenture to
be given or taken by Bondholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Bondholders in person or by an agent duly appointed in writing, and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Bondholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Standard Provisions Indenture and
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Bonds shall be proved by the Bond Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Bonds shall bind the Holder
of every Bond issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Bond.
Section 15.04. NOTICES,ETC., TO TRUSTEE AND ISSUER.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Bondholders or other documents provided or permitted by this
Standard Provisions Indenture to be made upon, given or furnished to, or
filed with:
(1) the Trustee by any Bondholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office; or
(2) the Issuer by the Trustee or by any Bondholder shall be
sufficient for every purpose hereunder (except as provided in
Section 6.01(2) if in writing and mailed, first-class postage
prepaid, to the Issuer.
Section 15.05. NOTICE TO BONDHOLDERS; WAIVER.
Where this Standard Provisions Indenture provides for notice to
Bondholders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Bondholder affected by such event,
at his address as it appears on the Bond Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Bondholders is given
by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Bondholder shall affect the
sufficiency of such notice with respect to other Bondholders, and any
notice which is mailed in the manner herein provided shall conclusively
be presumed to have been duly given.
Where this Standard Provisions Indenture provides for notice in any
manner, such notice may be waived in writing by any Person entitled to
receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Bondholders
shall be filed with the Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppages or similar activity, it shall be impractical
to mail notice of any event to Bondholders when such notice is required
to be given pursuant to any provision of this Standard Provisions
Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
Section 15.06. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Standard
Provisions Indenture by any of the provisions of the TIA, such Provision
shall control.
Section 15.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 15.08. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Standard Provisions Indenture by the
Issuer shall bind its successor and assigns, whether so expressed or not.
Section 15.09. SEPARABILITY.
In case any provision in the Standard Provisions Indenture or in the
Bonds shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 15.10. BENEFITS OF STANDARD PROVISIONS INDENTURE.
Nothing in this Standard Provisions Indenture or in the Bonds, express or
implied, shall give to any Person, other than the parties hereto and
their successors hereunder, and the Bondholders, any benefit or any legal
or equitable right, remedy or claim under this Standard Provisions
Indenture.
Section 15.11. LEGAL HOLIDAYS.
In any case where the date of any Payment Date shall not be a Business
Day, then (notwithstanding any other provisions of the Bonds or this
Standard Provisions Indenture) payment need not be made on such date, but
may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of any such Payment Date and no
interest shall accrue for the period from and after any such nominal
date.
Section 15.12. GOVERNING LAW.
This Standard Provisions Indenture and each Bond shall be construed in
accordance with and governed by the laws of the State of California
applicable to agreements made and to be performed therein.
Section 15.13. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 15.14. TRUST OBLIGATION.
No recourse may be taken, directly or indirectly, against (i) the
Owner-Trustee in its individual capacity, (ii) any incorporator,
subscriber to the capital stock, stockholder, officer or director of the
Owner-Trustee or of any predecessor or successor of the Owner-Trustee in
its individual capacity, (iii) any holder of a beneficial interest in the
Trust, (iv) any partner, beneficiary, agent, officer, director, employee
or successor or assign of the holder of a beneficial interest in the
Trust, (v) any incorporator, subscriber to the capital stock,
stockholder, officer, director or employee of the Trustee or any
predecessor or successor of the Trust with respect to the Issuer or the
Trustee under this Indenture or any certificate or other writing
delivered in connection herewith or therewith.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer,
director or employee of the Issuer or of any predecessor or successor of
the Issuer with respect to the Issuer's obligations on the Bonds or under
this Standard Provisions Indenture or any certificate or other writing
delivered in connection herewith or therewith except as otherwise
expressly provided in any such certificate or other writing.
IN WITNESS WHEREOF, the parties hereto have caused this Standard
Provision Indenture to be duly executed by their respective Authorized
Officers or officers hereunto duly authorized, as of the date of this
Agreement.
CRSM Mortgage Securities Trust No.
___, a Delaware business trust
By: Wilmington Trust Company, not in
its individual capacity but solely as
Owner-Trustee under the Deposit Trust
Agreement.
By: _____________________________
___________
as Trustee for Series No. 1 Bonds
By_____________________________