RENAISSANCE HOME EQUITY LOAN TRUST 2006-3 Issuer HSBC BANK USA, NATIONAL ASSOCIATION Indenture Trustee and WELLS FARGO BANK, N.A. Securities Administrator INDENTURE Dated as of September 28, 2006 HOME EQUITY LOAN ASSET- BACKED NOTES, SERIES 2006-3
Issuer
HSBC
BANK
USA, NATIONAL ASSOCIATION
Indenture
Trustee
and
XXXXX
FARGO BANK, N.A.
Securities
Administrator
_____________________________
Dated
as
of September 28, 2006
_____________________________
HOME
EQUITY LOAN ASSET-BACKED NOTES, SERIES 2006-3
________________
TABLE
OF CONTENTS
ARTICLE
I
|
|
DEFINITIONS
|
|
Section
1.01.
|
Definitions
|
Section
1.02.
|
Incorporation
by Reference of Trust Indenture Act
|
Section
1.03.
|
Rules
of Construction
|
ARTICLE
II
|
|
ORIGINAL
ISSUANCE OF THE NOTES
|
|
Section
2.01.
|
Form
|
Section
2.02.
|
Execution,
Authentication and Delivery
|
Section
2.03.
|
Acceptance
of Mortgage Loans by Indenture Trustee.
|
Section
2.04.
|
Acceptance
of the Interest Rate Swap Agreement by Owner Trustee
|
ARTICLE
III
|
|
COVENANTS
|
|
Section
3.01.
|
Collection
of Payments with respect to the Mortgage Loans; Investment of
Accounts.
|
Section
3.02.
|
Maintenance
of Office or Agency
|
Section
3.03.
|
Money
for Payments To Be Held in Trust; Paying Agent
|
Section
3.04.
|
Existence
|
Section
3.05.
|
Payment
of Principal and Interest.
|
Section
3.06.
|
Protection
of Collateral.
|
Section
3.07.
|
Opinions
as to Collateral.
|
Section
3.08.
|
Performance
of Obligations.
|
Section
3.09.
|
Negative
Covenants
|
Section
3.10.
|
[Reserved.]
|
Section
3.11.
|
[Reserved.]
|
Section
3.12.
|
Representations
and Warranties Concerning the Mortgage Loans
|
Section
3.13.
|
Amendments
to Servicing Agreement
|
Section
3.14.
|
Servicer
as Agent and Bailee of the Indenture Trustee
|
Section
3.15.
|
Investment
Company Act
|
Section
3.16.
|
Issuer
May Consolidate, etc.
|
Section
3.17.
|
Successor
or Transferee.
|
Section
3.18.
|
No
Other Business
|
Section
3.19.
|
No
Borrowing
|
Section
3.20.
|
Guarantees,
Loans, Advances and Other Liabilities
|
Section
3.21.
|
Capital
Expenditures
|
Section
3.22.
|
[Reserved].
|
Section
3.23.
|
Restricted
Payments
|
Section
3.24.
|
Notice
of Events of Default
|
Section
3.25.
|
Further
Instruments and Acts
|
Section
3.26.
|
Statements
to Noteholders
|
Section
3.27.
|
[Reserved].
|
Section
3.28.
|
Certain
Representations Regarding the Trust.
|
Section
3.29.
|
Allocation
of Realized Losses.
|
Section
3.30.
|
[Reserved].
|
Section
3.31.
|
[Reserved]
|
Section
3.32.
|
[Reserved]
|
ARTICLE
IV
|
|
THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
|
|
Section
4.01.
|
The
Notes
|
Section
4.02.
|
Registration
of and Limitations on Transfer and Exchange of Notes; Appointment
of Note
Registrar and Certificate.
|
Section
4.03.
|
Mutilated,
Destroyed, Lost or Stolen Notes
|
Section
4.04.
|
Persons
Deemed Owners
|
Section
4.05.
|
Cancellation
|
Section
4.06.
|
Book-Entry
Notes.
|
Section
4.07.
|
Notices
to Depository
|
Section
4.08.
|
Definitive
Notes
|
Section
4.09.
|
Tax
Treatment
|
Section
4.10.
|
Satisfaction
and Discharge of Indenture
|
Section
4.11.
|
Application
of Trust Money
|
Section
4.12.
|
Derivative
Contracts for Benefit of the Certificates
|
Section
4.13.
|
Repayment
of Monies Held by Paying Agent
|
Section
4.14.
|
Temporary
Notes
|
Section
4.15.
|
Representation
Regarding ERISA
|
Section
4.16.
|
Transfer
Restrictions for Class N Notes.
|
ARTICLE
V
|
|
DEFAULT
AND REMEDIES
|
|
Section
5.01.
|
Events
of Default
|
Section
5.02.
|
Acceleration
of Maturity; Rescission and Annulment
|
Section
5.03.
|
Collection
of Indebtedness and Suits for Enforcement by Indenture
Trustee.
|
Section
5.04.
|
Remedies;
Priorities.
|
Section
5.05.
|
Optional
Preservation of the Collateral
|
Section
5.06.
|
Limitation
of Suits
|
Section
5.07.
|
Unconditional
Rights of Noteholders To Receive Principal and
Interest.
|
Section
5.08.
|
Restoration
of Rights and Remedies
|
Section
5.09.
|
Rights
and Remedies Cumulative
|
Section
5.10.
|
Delay
or Omission Not a Waiver
|
Section
5.11.
|
Control
By Noteholders
|
Section
5.12.
|
Waiver
of Past Defaults
|
Section
5.13.
|
Undertaking
for Costs
|
Section
5.14.
|
Waiver
of Stay or Extension Laws
|
Section
5.15.
|
Sale
of Trust.
|
Section
5.16.
|
Action
on Notes
|
Section
5.17.
|
Performance
and Enforcement of Certain Obligations.
|
ARTICLE
VI
|
|
THE
INDENTURE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
|
Section
6.01.
|
Duties
of Indenture Trustee and the Securities Administrator.
|
Section
6.02.
|
Rights
of Indenture Trustee and Securities Administrator.
|
Section
6.03.
|
Individual
Rights of Indenture Trustee and Securities
Administrator
|
Section
6.04.
|
Indenture
Trustee’s and Securities Administrator’s Disclaimer
|
Section
6.05.
|
Notice
of Event of Default
|
Section
6.06.
|
Reports
by Securities Administrator to Holders and Tax
Administration.
|
Section
6.07.
|
Compensation
and Indemnity
|
Section
6.08.
|
Replacement
of Indenture Trustee or Securities Administrator
|
Section
6.09.
|
Successor
Indenture Trustee or Securities Administrator by Xxxxxx
|
Section
6.10.
|
Appointment
of Co-Indenture Trustee or Separate Indenture Trustee.
|
Section
6.11.
|
Eligibility;
Disqualification
|
Section
6.12.
|
Preferential
Collection of Claims Against Issuer
|
Section
6.13.
|
Representations
and Warranties
|
Section
6.14.
|
Directions
to Indenture Trustee and Securities Administrator
|
Section
6.15.
|
The
Agents
|
ARTICLE
VII
|
|
NOTEHOLDERS’
LISTS AND REPORTS
|
|
Section
7.01.
|
Issuer
To Furnish Securities Administrator Names and Addresses of
Noteholders.
|
Section
7.02.
|
Preservation
of Information; Communications to Noteholders.
|
Section
7.03.
|
Reports
of Issuer.
|
Section
7.04.
|
Reports
by Securities Administrator
|
Section
7.05.
|
Statements
to Noteholders.
|
ARTICLE
VIII
|
|
ACCOUNTS,
DISBURSEMENTS AND RELEASES
|
|
Section
8.01.
|
Collection
of Money
|
Section
8.02.
|
Trust
Accounts.
|
Section
8.03.
|
Officer’s
Certificate
|
Section
8.04.
|
Termination
Upon Payment to Noteholders
|
Section
8.05.
|
Release
of Collateral.
|
Section
8.06.
|
Surrender
of Notes Upon Final Payment
|
Section
8.07.
|
Optional
Redemption of the Notes.
|
ARTICLE
IX
|
|
SUPPLEMENTAL
INDENTURES
|
|
Section
9.01.
|
Supplemental
Indentures Without Consent of Noteholders.
|
Section
9.02.
|
Supplemental
Indentures With Consent of Noteholders
|
Section
9.03.
|
Execution
of Supplemental Indentures
|
Section
9.04.
|
Effect
of Supplemental Indenture
|
Section
9.05.
|
Conformity
with Trust Indenture Act
|
Section
9.06.
|
Reference
in Notes to Supplemental Indentures
|
ARTICLE
X
|
|
MISCELLANEOUS
|
|
Section
10.01.
|
Compliance
Certificates and Opinions, etc.
|
Section
10.02.
|
Form
of Documents Delivered to Indenture Trustee
|
Section
10.03.
|
Acts
of Noteholders.
|
Section
10.04.
|
Notices
etc., to Indenture Trustee, Securities Administrator, Issuer and
Rating
Agencies.
|
Section
10.05.
|
Notices
to Noteholders; Waiver
|
Section
10.06.
|
Conflict
with Trust Indenture Act
|
Section
10.07.
|
Effect
of Headings
|
Section
10.08.
|
Successors
and Assigns
|
Section
10.09.
|
Separability
|
Section
10.10.
|
[Reserved.]
|
Section
10.11.
|
Legal
Holidays
|
Section
10.12.
|
GOVERNING
LAW
|
Section
10.13.
|
Counterparts
|
Section
10.14.
|
Recording
of Indenture
|
Section
10.15.
|
Issuer
Obligation
|
Section
10.16.
|
No
Petition
|
Section
10.17.
|
Inspection
|
Section
10.18.
|
No
Recourse to Owner Trustee
|
Section
10.19.
|
Proofs
of Claim
|
EXHIBITS
Exhibit
A-1
|
Form
of Offered Notes
|
Exhibit
A-2
|
Form
of Class N Notes
|
Exhibit
B
|
Mortgage
Loan Schedule
|
Exhibit
C-1
|
Form
of Initial Certification
|
Exhibit
C-2
|
Form
of Final Certification
|
Exhibit
D
|
Interest
Rate Swap Agreement
|
Exhibit
E
|
Form
of Custodial Agreement
|
Exhibit
F-1
|
Form
of Transferor Certificate for Transfers of Class N
Notes
|
Exhibit
F-2
|
Form
of Transferee Certificate for Transfers of the Class N
Notes
|
(Including
ERISA Certification)
|
|
Exhibit
G-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
Exhibit
G-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
Appendix A Definitions
This
Indenture, dated as of September 28, 2006, is entered into among Renaissance
Home Equity Loan Trust 2006-3, a Delaware statutory trust, as Issuer (the
“Issuer”), HSBC Bank USA, National Association, a national banking association,
as Indenture Trustee (the “Indenture Trustee”) and Xxxxx Fargo Bank, N.A., a
national banking association, as Securities Administrator (the “Securities
Administrator”).
WITNESSETH
THAT:
Each
party hereto agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Issuer’s Home Equity Loan
Asset-Backed Notes, Series 2006-3 (the “Notes”).
GRANTING
CLAUSE
The
Issuer hereby Grants to the Indenture Trustee at the Closing Date, as trustee
for the benefit of the Holders of the Notes, all of the Issuer’s right, title
and interest in and to whether now existing or hereafter created by (a) the
Mortgage Loans, Eligible Substitute Mortgage Loans and the proceeds thereof
and
all rights under the Related Documents; (b) all funds on deposit from time
to
time in the Collection Account allocable to the Mortgage Loans excluding any
investment income from such funds; (c) all funds on deposit from time to time
in
the Payment Account and in all proceeds thereof; (d) all rights under (i) the
Mortgage Loan Sale and Contribution Agreement as assigned to the Issuer, (ii)
the Servicing Agreement, (iii) any title, hazard and primary insurance policies
with respect to the Mortgaged Properties and (iv) the rights with respect to
the
Interest Rate Swap Agreement and (e) all present and future claims, demands,
causes and choses in action in respect of any or all of the foregoing and all
payments on or under, and all proceeds of every kind and nature whatsoever
in
respect of, any or all of the foregoing and all payments on or under, and all
proceeds of every kind and nature whatsoever in the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, checks, deposit
accounts, rights to payment of any and every kind, and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the “Collateral”).
The
foregoing Grant is made in trust to secure the payment of principal of and
interest on, and any other amounts owing in respect of, the Notes, equally
and
ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this
Indenture.
The
Indenture Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Xxxxx, accepts the trust under this Indenture in accordance
with the provisions hereof and agrees to perform its duties as Indenture Trustee
as required herein.
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided herein or
unless the context otherwise requires, capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms in the Definitions
attached hereto as Appendix A which is incorporated by reference herein. All
other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act (the
“TIA”), the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
“Commission”
means the Securities and Exchange Commission.
“indenture
securities” means the Notes.
“indenture
security holder” means a Noteholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Indenture Trustee.
“obligor”
on the indenture securities means the Issuer and any other obligor on the
indenture securities.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rules and have the
meanings assigned to them by such definitions.
Section 1.03. |
Rules
of Construction.
Unless the context otherwise
requires:
|
(i) a
term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time
to time;
(iii) “or”
is
not exclusive;
(iv) “including”
means including without limitation;
(v) words
in
the singular include the plural and words in the plural include the singular;
and
(vi) any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORIGINAL
ISSUANCE OF THE NOTES
Section
2.01. Form.
The
Notes, together with the Securities Administrator’s certificate of
authentication, shall be in substantially the form set forth in Exhibit A-1
and
Exhibit A-2 to this Indenture, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
this Indenture.
The
Notes
shall be typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved
borders).
The
terms
of the Notes set forth in Exhibit A-1 and Exhibit A-2 to this Indenture are
part
of the terms of this Indenture. To the extent the Notes and the terms of the
Indenture are inconsistent, the terms of the Indenture shall
control.
Section
2.02. Execution,
Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
Notes
bearing the manual or facsimile signature of individuals who were at any time
Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
The
Securities Administrator shall upon Issuer Request authenticate and deliver
the
Notes for original issue in an aggregate initial principal amount of
$800,253,000. The Notes shall have the following Initial Note
Balances:
Class
AV-1
|
$
|
56,800,000
|
||
Class
AV-2
|
$
|
23,500,000
|
||
Class
AV-3
|
$
|
29,700,000
|
||
Class
AF-1
|
$
|
194,300,000
|
||
Class
AF-2
|
$
|
116,400,000
|
||
Class
AF-3
|
$
|
82,200,000
|
||
Class
AF-4
|
$
|
68,400,000
|
||
Class
AF-5
|
$
|
46,694,000
|
||
Class
AF-6
|
$
|
56,444,000
|
||
Class
M-1
|
$
|
25,988,000
|
||
Class
M-2
|
$
|
24,338,000
|
||
Class
M-3
|
$
|
14,438,000
|
||
Class
M-4
|
$
|
14,025,000
|
||
Class
M-5
|
$
|
11,963,000
|
||
Class
M-6
|
$
|
10,313,000
|
||
Class
M-7
|
$
|
9,075,000
|
||
Class
M-8
|
$
|
8,250,000
|
||
Class
M-9
|
$
|
7,425,000
|
||
Class
N-1
|
$
|
29,700,000
|
||
Class
N-2
|
$
|
4,700,000
|
Each
of
the Notes shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes and the Notes shall be issuable in the minimum
initial Note Balances of $25,000 and in integral multiples of $1 in excess
thereof; provided that Offered Notes must be purchased in minimum total
investments of $100,000 per Class.
No
Note
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Securities Administrator by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 2.03. |
Acceptance
of Mortgage Loans by Indenture Trustee.
|
(a) The
Indenture Trustee acknowledges receipt of, subject to the exceptions it notes
pursuant to the procedures described below, the documents (or certified copies
thereof) referred to in Section 2.1(b) of the Mortgage Loan Sale and
Contribution Agreement, and declares that it or the Custodian holds and will
continue to hold those documents and any amendments, replacements or supplements
thereto and all other assets of the Trust as Indenture Trustee in trust for
the
use and benefit of all present and future Holders of the Notes.
On
the
Closing Date or no later than the 45th
day
following the Closing Date, the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee shall certify to the Seller, the Depositor and the
Servicer (and the Indenture Trustee if the Custodian is so certifying) that
it
has reviewed each Mortgage File and that, as to each Mortgage Loan listed in
the
related Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
any
Mortgage Loan specifically identified in the certification in the form annexed
hereto as Exhibit C-1 as not covered by such certification), (i) all documents
constituting part of such Mortgage File required to be delivered to it pursuant
to paragraphs (i) - (v) and (vii) of Section 2.1(b) of the Mortgage Loan Sale
and Contribution Agreement are in its possession, (ii) such documents have
been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan, (iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule which corresponds to items
(ii) and (iii) of the definition of “Mortgage Loan Schedule” accurately reflects
information set forth in the Mortgage File. If within such 45-day period the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee finds
any
document constituting a part of a Mortgage File not to have been executed or
received or to be unrelated to the Mortgage Loans identified in said Mortgage
Loan Schedule or, if in the course of its review, the Indenture Trustee or
the
Custodian on behalf of the Indenture Trustee determines that such Mortgage
File
is otherwise defective in any material respect, the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee shall promptly upon the conclusion
of its review notify the Seller in the form of an exception report and the
Seller shall have a period of ninety (90) days after such notice within which
to
correct or cure any such defect.
On
the
360th
day
following the Closing Date, the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee shall deliver to the Seller and the Servicer an exception
report showing the documents outstanding pursuant to Section 2.1(b) of the
Mortgage Loan Sale and Contribution Agreement along with a final certification
annexed hereto as Exhibit C-2 updated from the previous certification issued
in
the form of Exhibit C-1. The Indenture Trustee or the Custodian on behalf of
the
Indenture Trustee shall also maintain records adequate to determine the date
on
which any document required to be delivered to it after such 360th
day
following the Closing Date must be delivered to it, and on each such date,
the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall
review the related Mortgage File to determine whether such document has, in
fact, been delivered. After the delivery of the final certification, a form
of
which is attached hereto as Exhibit C-2, (i) the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee shall provide to the Servicer
and
the Seller (and to the Indenture Trustee if delivered by the Custodian), no
less
frequently than monthly, updated exception reports showing the documents
outstanding pursuant to Section 2.1(b) of the Mortgage Loan Sale and
Contribution Agreement until all such exceptions have been eliminated and (ii)
the Seller shall provide to the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee and the Servicer, no less frequently than monthly, updated
certifications indicating the then current status of exceptions until all such
exceptions have been eliminated; provided
that the
delivery of the final certification shall not act as a waiver of any of the
rights the Noteholders may have with respect to such exceptions, and all rights
are reserved with respect thereto.
Neither
the Indenture Trustee nor the Custodian makes any representations as to, and
shall not be responsible to verify, (i) the validity, sufficiency, legality,
due
authorization, recordation or genuineness of any document or (ii) the
collectability, insurability or effectiveness of any of the Mortgage
Loans.
(b) Neither
the Indenture Trustee nor the Custodian on behalf of the Indenture Trustee
shall
have any responsibility for reviewing any Mortgage File except as expressly
provided in Section 2.02. Without limiting the effect of the preceding sentence,
in reviewing any Mortgage File pursuant to such subsection, neither the
Indenture Trustee nor the Custodian shall have any responsibility for
determining whether any document is valid and binding, whether the text of
any
assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Indenture Trustee is the assignee or endorsee),
whether any document has been recorded in accordance with the requirements
of
any applicable jurisdiction, or whether a blanket assignment is permitted in
any
applicable jurisdiction, but shall only be required to determine whether a
document has been executed, that it appears to be what it purports to be, and,
where applicable, that it purports to be recorded, but shall not be required
to
determine whether any Person executing any document is authorized to do so
or
whether any signature thereon is genuine.
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust that is a high-cost home loan as defined by the
Homeownership and Equity Protection Act of 1994 or any other applicable
predatory or abusive lending laws.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Indenture Trustee with respect to the custody, acceptance,
inspection and release of the Mortgage Files, including but not limited to
certain insurance policies and documents contemplated by this Agreement and
the
Servicing Agreement, and preparation and delivery of any applicable
certifications shall be performed by the Custodian pursuant to the terms and
conditions of the Custodial Agreement.
Section
2.04. Acceptance
of the Interest Rate Swap Agreements by Owner Trustee.
The
Issuer hereby directs the Owner Trustee to execute and the Securities
Administrator (on behalf of the Owner Trustee) to deliver and perform the Owner
Trustee’s obligations under the Interest Rate Swap Agreement on the Closing Date
and thereafter on behalf of the Holders of the Class N Notes. The Issuer and
the
Holders of the Class N Notes by their acceptance of such Notes acknowledge
and
agree that the Owner Trustee shall execute and the Securities Administrator
(on
behalf of the Owner Trustee) shall deliver and perform the Owner Trustee’s
obligations under the Interest Rate Swap Agreement and shall do so solely in
its
capacity as Owner Trustee or Securities Administrator, as applicable, and not
in
its respective individual capacity.
The
Owner
Trustee acknowledges receipt of the Interest Rate Swap Agreement and declares
that it holds and will continue to hold these documents and any amendments,
replacements or supplements thereto for the use and benefit of all present
and
future Holders of the Class N Notes. Every provision of this Indenture affording
protection to the Owner Trustee shall apply to the Owner Trustee’s execution of
the Interest Rate Swap Agreement and the performance of its duties and
satisfaction of its obligations thereunder.
ARTICLE
III
COVENANTS
Section 3.01. |
Collection
of Payments with respect to the Mortgage Loans; Investment of
Accounts.
|
(a) The
Securities Administrator shall establish with itself, a separate account (the
“Payment Account”) titled “HSBC Bank USA, National Association, as Indenture
Trustee, in trust for the registered holders of Renaissance Home Equity Loan
Trust 2006-3 Home Equity Loan Asset-Backed Notes, Series 2006-3.” The Payment
Account shall be an Eligible Account. The Securities Administrator shall deposit
any amounts representing payments on and any collections in respect of the
Mortgage Loans received by it immediately following receipt thereof, including,
without limitation, all amounts withdrawn by the Servicer from the Collection
Account pursuant to Section 3.03 of the Servicing Agreement for deposit to
the
Payment Account. Amounts on deposit in the Payment Account may be invested
in
Eligible Investments pursuant to Section 3.01(b). In addition, the Securities
Administrator shall deposit the Initial Deposit in the Payment Account on the
Closing Date. Immediately prior to each Payment Date, the Securities
Administrator shall withdraw from the Payment Account and pay to the Master
Servicer an amount equal to the Master Servicing Fee for such Payment Date
and
any unreimbursed Monthly Advances made by the Master Servicer. The Securities
Administrator shall make all payments of principal of and interest on the Notes,
subject to Section 3.03 as provided in Section 3.05 herein from monies on
deposit in the Payment Account.
(b) Consistent
with any requirements of the Code, all or a portion of any Account held by
the
Securities Administrator shall be invested and reinvested by the Securities
Administrator (in the case of the Payment Account) or as directed in writing
by
the Servicer (in the case of the Collection Account) or the Seller (in the
case
of any other Account) (the applicable Person, the “Directing Party”), in one or
more Eligible Investments bearing interest or sold at a discount. If the
applicable Directing Party does not provide investment directions, or if the
Directing Party is the Servicer and a Servicer Event of Default shall have
occurred and be continuing, the Securities Administrator shall invest all
Accounts in Eligible Investments described in paragraph (vi) of the definition
of Eligible Investments. No such investment in any Account shall mature later
than the Business Day immediately preceding the next Payment Date (except that
for any such Account other than the Payment Account (i) if such Eligible
Investment is an obligation of the Securities Administrator or a money market
fund for which the Securities Administrator or any Affiliate is the manager
or
the advisor, then such Eligible Investment shall mature not later than such
Payment Date and (ii) any other date may be approved by the Rating
Agencies).
(c) If
any
amounts are needed for disbursement from any Account held by the Securities
Administrator and sufficient uninvested funds are not available to make such
disbursement, the Securities Administrator shall cause to be sold or otherwise
converted to cash a sufficient amount of the investments in such Account. The
Securities Administrator shall not be liable for any investment loss or other
charge resulting therefrom unless the Securities Administrator’s failure to
perform in accordance with this Section 3.01(c) is the cause of such loss or
charge.
(d) The
Securities Administrator shall not in any way be held liable by reason of any
insufficiency in any Account held by the Securities Administrator resulting
from
any investment loss on any Eligible Investment included therein (except to
the
extent that the Securities Administrator is the obligor and has defaulted
thereon or as provided in subsection (c) of this Section 3.01).
(e) The
Securities Administrator shall invest and reinvest funds in the Accounts held
by
the Securities Administrator, to the fullest extent practicable, in such manner
as the applicable Directing Party shall from time to time direct as set forth
in
Section 3.01(b), but only in one or more Eligible Investments.
(f) So
long
as no Servicer Event of Default shall have occurred and be continuing, all
net
income and gain realized from investment of, and all earnings on, funds
deposited in the Collection Account shall be for the benefit of the Servicer
as
Servicing Compensation (in addition to the Servicing Fee), and shall be subject
to withdrawal on or before the first Business Day of the month following the
month in which such income or gain is received. The Servicer shall deposit
in
the Collection Account, the amount of any loss incurred in respect of any
Eligible Investment held therein which is in excess of the income and gain
thereon immediately upon realization of such loss, without any right to
reimbursement therefore from its own funds.
(g) All
net
income and gain realized from investment of, and all earnings on, funds
deposited in the Collection Account shall be for the benefit of the Servicer
for
the period from the date of deposit to the Deposit Date, as Servicing
Compensation in addition to the Servicing Fee. All net income and gain realized
from investment of, and all earnings on, funds deposited in the Payment Account
shall be for the benefit of the Securities Administrator for the period from
the
Deposit Date to the Payment Date, as compensation. Any such income shall be
subject to withdrawal on or before the first Business Day of the month following
the month in which such income or gain is received. The Securities
Administrator, as applicable, shall deposit in the Payment Account from its
own
funds the amount of any loss incurred in respect of any Eligible Investment
held
therein which is in excess of the income and gain thereon payable to Securities
Administrator immediately upon the realization of such loss, without any right
to reimbursement therefor.
Section
3.02. Maintenance
of Office or Agency.
The
Issuer will maintain an office or agency where, subject to satisfaction of
conditions set forth herein, Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Securities Administrator to serve as its agent for the
foregoing purposes. If at any time the Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders may be made at the office designated by the Securities
Administrator for such purpose.
Section
3.03. Money
for Payments To Be Held in Trust; Paying Agent.
As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Payment Account
pursuant to Section 3.01 shall be made on behalf of the Issuer by the Securities
Administrator or by the Paying Agent, and no amounts so withdrawn from the
Payment Account for payments of Notes shall be paid over to the Issuer except
as
provided in this Section 3.03. The Issuer hereby appoints the Securities
Administrator as its Paying Agent.
The
Securities Administrator will cause each Paying Agent other than the Securities
Administrator to execute and deliver to the Securities Administrator an
instrument in which such Paying Agent shall agree with the Securities
Administrator (and if the Securities Administrator acts as Paying Agent it
hereby so agrees), subject to the provisions of this Section 3.03, that such
Paying Agent will:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Notes in
trust for the benefit of the Persons entitled thereto until such sums shall
be
paid to such Persons or otherwise disposed of as herein provided and pay such
sums to such Persons as herein provided;
(ii) give
the
Securities Administrator notice of any default by the Issuer of which it has
actual knowledge in the making of any payment required to be made with respect
to the Notes;
(iii) at
any
time during the continuance of any default described in (ii) above, upon the
written request of the Securities Administrator, forthwith pay to the Securities
Administrator all sums so held in trust by such Paying Agent;
(iv) immediately
resign as Paying Agent and forthwith pay to the Securities Administrator all
sums held by it in trust for the payment of Notes if at any time it ceases
to
meet the standards required to be met by a Paying Agent at the time of its
appointment;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in connection
therewith; and
(vi) not
commence a bankruptcy proceeding against the Issuer in connection with this
Indenture.
The
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Request direct
any Paying Agent to pay to the Securities Administrator all sums held in trust
by such Paying Agent, such sums to be held by the Securities Administrator
upon
the same trusts as those upon which the sums were held by such Paying Agent;
and
upon such payment by any Paying Agent to the Securities Administrator, such
Paying Agent shall be released from all further liability with respect to such
money.
Subject
to applicable laws with respect to escheat of funds, any money held by the
Securities Administrator or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for one year after
such amount has become due and payable shall be discharged from such trust
and
be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Securities Administrator or such Paying Agent with
respect to such trust money shall thereupon cease; provided,
however,
that the
Securities Administrator or such Paying Agent, before being required to make
any
such repayment, shall at the expense and direction of the Issuer cause to be
published once, in an Authorized Newspaper published in the English language,
notice that such money remains unclaimed and that, after a date specified
therein which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Issuer.
The Securities Administrator may also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment
to
Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in monies due and payable but not
claimed is determinable from the records of the Securities Administrator or
of
any Paying Agent, at the last address of record for each such
Holder).
Section
3.04. Existence.
The
Issuer will keep in full effect its existence, rights and franchises as a
statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuer hereunder is or becomes, organized under the laws of any
other state or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of
such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes, the Mortgage Loans and each other instrument or agreement included in
the
Trust.
Section 3.05. |
Payment
of Principal and Interest.
|
(a) On
each
Payment Date from amounts on deposit in the Payment Account in accordance with
Section 8.02 hereof, the Securities Administrator shall pay (i) to the Swap
Provider, any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider and (ii) to the Persons specified below, to the extent provided
therein, the Available Funds for such Payment Date.
(b) On
each
Payment Date the Securities Administrator shall withdraw from the Payment
Account the Available Funds and apply such amount in the following order of
priority, in each case, to the extent of the funds remaining:
(i) With
respect to funds in the Payment Account received with respect to the Group
I
Mortgage Loans
(1) |
Concurrently,
to each Class of Group I Notes, pro
rata
based on amounts due, the related Class Interest Payment for the
applicable Payment Date.
|
(2) |
For
payment pursuant to Section 3.05(b)(iii) below, any remaining
amounts.
|
(ii) With
respect to funds in the Payment Account received with respect to the Group
II
Mortgage Loans
(1) |
Concurrently,
to each Class of Group II Notes, pro
rata
based on amounts due, the related Class Interest Payment for the
applicable Payment Date.
|
(2) |
For
payment pursuant to Section 3.05(b)(iii) below, any remaining
amounts.
|
(iii) With
respect to any remaining funds in the Payment Account after payments made
pursuant to Sections 3.05(b)(i) and 3.05(b)(ii) above
(1) |
Concurrently,
to the Senior Notes, to the extent not paid pursuant to Sections
3.05(b)(i) and 3.05(b)(ii) above on the applicable Payment Date,
pro
rata
based on amounts due, the related Class Interest Payment for the
applicable Payment Date; then
|
(2) |
Sequentially,
first to the Class M-1 Notes, second to the Class M-2 Notes, third
to the
Class M-3 Notes, fourth to the Class M-4 Notes, fifth to the Class
M-5
Notes, sixth to the Class M-6 Notes, seventh to the Class M-7 Notes,
eighth to the Class M-8 Notes and ninth to the Class M-9 Notes, the
related Class Monthly Interest Amount for the applicable Payment
Date;
then
|
(3) |
To
the Senior Notes, the Senior Principal Payment Amount for the applicable
Payment Date, excluding any Subordination Increase Amount included
in that
amount, concurrently as follows:
|
(a) To
the
Group I Notes, the Group I Principal Payment Amount, sequentially, to the Class
AV-1, Class AV-2 and Class AV-3 Notes, in that order, until the respective
Class
Note Balances of such Classes have been reduced to zero; provided, however,
on
any Payment Date on which the aggregate Note Balance of the Mezzanine Notes
has
been reduced to zero, principal payments to the Group I Notes will be made
on a
pro
rata
basis
based on the Class Note Balance of each such Class; and
(b) To
the
Group II Notes, the Group II Principal Payment Amount, sequentially, first
to
the Class AF-6 Notes, an amount equal to the Class AF-6 Lockout Payment Amount,
and second, sequentially, to the Class AF-1, Class AF-2, Class AF-3, Class
AF-4,
Class AF-5 and Class AF-6 Notes, in that order, until the respective Class
Note
Balances of such Classes have been reduced to zero; provided, however, on any
Payment Date on which the aggregate Note Balance of the Mezzanine Notes has
been
reduced to zero, principal payments to the Group II Notes will be made on a
pro
rata
basis
based on the Class Note Balance of each such Class; then
(4) |
To
the Class M-1 Notes, the Class M-1 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(5) |
To
the Class M-2 Notes, the Class M-2 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(6) |
To
the Class M-3 Notes, the Class M-3 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(7) |
To
the Class M-4 Notes, the Class M-4 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(8) |
To
the Class M-5 Notes, the Class M-5 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(9) |
To
the Class M-6 Notes, the Class M-6 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(10) |
To
the Class M-7 Notes, the Class M-7 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(11) |
To
the Class M-8 Notes, the Class M-8 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(12) |
To
the Class M-9 Notes, the Class M-9 Principal Payment Amount for the
applicable Payment Date, excluding any Subordination Increase Amount
included in that amount; then
|
(13) |
To
the Offered Notes, the Subordination Increase Amount for the applicable
Payment Date, allocated in the same order of priority set forth in
clause
(3) and clauses (4) through (12) of this Section 3.05(b)(iii);
then
|
(14) |
Sequentially,
first to the Class M-1 Notes, second to the Class M-2 Notes, third
to the
Class M-3 Notes, fourth to the Class M-4 Notes, fifth to the Class
M-5
Notes, sixth to the Class M-6 Notes, seventh to the Class M-7 Notes,
eighth to the Class M-8 Notes and ninth to the Class M-9 Notes, (a)
any
related Class Interest Carryover Shortfall, then (b) any related
Class
Principal Carryover Shortfall and then (c) any interest accrued on
any
related Class Principal Carryover Shortfall.;
then
|
(15) |
To
the Group I Notes in the order and priority described in
Section 3.05(c), any Group I Basis Risk Shortfall Amount,
then
|
(16) |
to
the Class N-1 Notes, the Class N-1 Interest Payment Amount for the
related
Interest Period; then
|
(17) |
to
the Class N-2 Notes, the Class N-2 Interest Payment Amount for the
related
Interest Period; then
|
(18) |
to
the Class N-1 Notes, the Class N-1 Principal Payment Amount, if any,
until
such Note Balance is reduced to zero;
then
|
(19) |
to
the Class N-2 Notes, the Class N-2 Principal Payment Amount, if any,
until
such Note Balance is reduced to zero;
then
|
(20) |
to
the Swap Provider, any Swap Termination Payments resulting from a
Swap
Provider Trigger Event; and then
|
(21) |
to
the Owner Trustee, any fees, expenses and indemnities not otherwise
paid
and then, to the Holders of the Certificates, any remaining
amounts.
|
On
each
Payment Date, the Class Interest Payment for each Class of Senior Notes in
a
Note Group will be paid on an equal priority within such Note
Group.
On
each
Payment Date, all amounts representing Prepayment Charges in respect of the
Mortgage Loans received during the related Prepayment Period will be withdrawn
from the Payment Account and paid by the Securities Administrator to the Holders
of the Class N Notes and shall not be available for payment to the Holders
of
any Class of Offered Notes.
(c) On
each
Payment Date, after making the payments of the Available Funds as set forth
above, the Securities Administrator will determine the amount of any Basis
Risk
Shortfalls with respect to the Offered Notes for such Payment Date and pay
to
the Group I Notes, pro
rata
based on
amounts due, the related Basis Risk Shortfall Amount from payments made pursuant
to Section 3.05(b)(iii)(15) above.
(d) The
Securities Administrator shall make payments in respect of a Payment Date to
each Noteholder of record on the related Record Date (other than as provided
in
Section 8.07 respecting the final payment), by check or money order mailed
to
such Noteholder at the address appearing in the Note Register, or, upon written
request by a Holder of a Note delivered to the Securities Administrator at
least
five Business Days prior to the related Payment Date, by wire transfer or
otherwise, or, if not, by check or money order to such Noteholder at the address
appearing in the Note Register. Payments among Noteholders of a Class shall
be
made in proportion to the Percentage Interests evidenced by the Notes of such
Class held by such Noteholders.
(e) Each
payment with respect to a Book-Entry Note shall be paid to the Depository,
as
Holder thereof, and the Depository shall be responsible for crediting the amount
of such payment to the accounts of its Depository Participants in accordance
with its normal procedures. Each Depository Participant shall be responsible
for
disbursing such payment to the Note Owners that it represents and to each
indirect participating brokerage firm (a “brokerage firm” or “indirect
participating firm”) for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Note Owners that it represents. None
of
the Securities Administrator, the Indenture Trustee, the Note Registrar, the
Paying Agent, the Depositor, the Servicer or the Master Servicer shall have
any
responsibility therefor except as otherwise provided by this Indenture or
applicable law.
(f) On
each
Payment Date, the Certificate Paying Agent shall deposit in the Certificate
Distribution Account all amounts it received pursuant to this Section 3.05
for
the purpose of distributing such funds pursuant to the Trust
Agreement.
(g) The
principal of each Note shall be due and payable in full on the Final Stated
Maturity Date for such Note as provided in the forms of Notes set forth in
Exhibit A-1 and Exhibit A-2 to this Indenture. All principal payments on the
Notes shall be made to the Noteholders entitled thereto in accordance with
the
Percentage Interests represented by such Notes. The Securities Administrator
shall notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Final Stated Maturity Date or other
final Payment Date (including any final Payment Date resulting from any
redemption pursuant to Section 8.07 hereof). Such notice shall to the extent
practicable be mailed no later than five Business Days prior to such Final
Stated Maturity Date or other final Payment Date and shall specify that payment
of the principal amount and any interest due with respect to such Note at the
Final Stated Maturity Date or other final Payment Date will be payable only
upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for such final payment. No interest shall
accrue on the Notes on or after the Final Stated Maturity Date or any such
other
final Payment Date.
Section 3.06. |
Protection
of Collateral.
|
(a) The
Issuer will from time to time prepare, execute and deliver all such supplements
and amendments hereto and all such financing statements, continuation
statements, instruments of further assurance and other instruments, and will
take such other action necessary or advisable to:
(i) maintain
or preserve the lien and security interest (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof;
(ii) perfect,
publish notice of or protect the validity of any Grant made or to be made by
this Indenture;
(iii) cause
the
Issuer, the Servicer or the Master Servicer to enforce any of the rights to
the
Mortgage Loans; or
(iv) preserve
and defend title to the Trust and the rights of the Indenture Trustee and the
Noteholders in the Trust against the claims of all persons and
parties.
(b) Except
as
otherwise provided in this Indenture, the Indenture Trustee shall not remove
any
portion of the Trust that consists of money or is evidenced by an instrument,
certificate or other writing from the jurisdiction in which it was held at
the
date of the most recent Opinion of Counsel delivered pursuant to Section 3.07
hereof (or from the jurisdiction in which it was held as described in the
Opinion of Counsel delivered on the Closing Date pursuant to Section 3.07(a)
hereof), or if no Opinion of Counsel has yet been delivered pursuant to Section
3.07(b) hereof, unless the Indenture Trustee shall have first received an
Opinion of Counsel to the effect that the lien and security interest created
by
this Indenture with respect to such property will continue to be maintained
after giving effect to such action or actions.
The
Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact
to
sign any financing statement, continuation statement or other instrument
required to be signed pursuant to this Section 3.06 upon the Issuer’s
preparation thereof and delivery to the Indenture Trustee.
Section 3.07. |
Opinions
as to Collateral.
|
(a) On
the
Closing Date, the Issuer shall furnish to the Indenture Trustee, the Securities
Administrator and the Owner Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to
the
recording and filing of this Indenture, any indentures supplemental hereto,
and
any other requisite documents, and with respect to the execution and filing
of
any financing statements and continuation statements, as are necessary to
perfect and make effective the lien and first priority security interest in
the
Collateral and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
first
priority security interest effective.
(b) On
or
before April 15th
in each
calendar year, beginning in 2007, the Issuer shall furnish to the Indenture
Trustee and the Securities Administrator an Opinion of Counsel at the expense
of
the Issuer either stating that, in the opinion of such counsel, such action
has
been taken with respect to the recording, filing, re-recording and re-filing
of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien
and
first priority security interest in the Collateral and reciting the details
of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and re-filing of this
Indenture, any indentures supplemental hereto and any other requisite documents
and the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain
the lien and security interest in the Collateral until December 31st
in the
following calendar year.
Section 3.08. |
Performance
of Obligations.
|
The
Issuer will punctually perform and observe all of its obligations and agreements
contained in this Indenture, the Basic Documents and in the instruments and
agreements included in the Collateral.
The
Issuer may contract with other Persons to assist it in performing its duties
under this Indenture, and any performance of such duties by a Person identified
to the Indenture Trustee in an Officer’s Certificate of the Issuer shall be
deemed to be action taken by the Issuer.
The
Issuer will not take any action or permit any action to be taken by others
which
would release any Person from any of such Person’s covenants or obligations
under any of the documents relating to the Mortgage Loans or under any
instrument included in the Collateral, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Servicer or the Master
Servicer is expressly permitted to take in the Servicing Agreement. The
Indenture Trustee and the Securities Administrator may exercise the rights
of
the Issuer to direct the actions of the Servicer and/or the Master Servicer
pursuant to the Servicing Agreement.
The
Issuer may retain an administrator and may enter into contracts with other
Persons for the performance of the Issuer’s obligations hereunder, and
performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuer.
Section 3.09. |
Negative
Covenants. So
long as any Notes are Outstanding, the Issuer shall
not:
|
(i) except
as
expressly permitted by this Indenture, sell, transfer, exchange or otherwise
dispose of the Trust, unless directed to do so by the Indenture
Trustee;
(ii) claim
any
credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments
under the Code) or assert any claim against any present or former Noteholder
by
reason of the payment of the taxes levied or assessed upon any part of the
Trust;
(iii) (A)
permit the validity or effectiveness of this Indenture to be impaired, or permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the Trust or
any
part thereof or any interest therein or the proceeds thereof or (C) permit
the
lien of this Indenture not to constitute a valid first priority security
interest in the Trust; or
(iv) waive
or
impair, or fail to assert rights under, the Mortgage Loans, or impair or cause
to be impaired the Issuer’s interest in the Mortgage Loans, the Mortgage Loan
Sale and Contribution Agreement or in any Basic Document, if any such action
would materially and adversely affect the interests of the
Noteholders.
Section 3.10. |
[Reserved.]
|
Section 3.11. |
[Reserved.]
|
Section
3.12. Representations
and Warranties Concerning the Mortgage Loans.
The
Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit of the
representations and warranties made by the Seller and the Originator in the
Mortgage Loan Sale and Contribution Agreement concerning the Seller and the
Mortgage Loans to the same extent as though such representations and warranties
were made directly to the Indenture Trustee. If a Responsible Officer of the
Indenture Trustee or the Securities Administrator has actual knowledge of any
breach of any representation or warranty made by the Seller or the Originator
in
the Mortgage Loan Sale and Contribution Agreement, the Indenture Trustee or
the
Securities Administrator shall promptly notify the Seller or the Originator,
as
applicable, of such finding and the Seller’s or the Originator’s obligation to
cure such defect or repurchase or substitute for the related Mortgage
Loan.
Section
3.13. Amendments
to Servicing Agreement.
The
Issuer covenants with the Indenture Trustee and the Securities Administrator
that it will not enter into any amendment or supplement to the Servicing
Agreement without the prior written consent of the Indenture Trustee and the
Securities Administrator.
Section
3.14. Servicer
as Agent and Bailee of the Indenture Trustee.
Solely
for purposes of perfection under Section 9-305 of the UCC or other similar
applicable law, rule or regulation of the state in which such property is held
by the Servicer, the Issuer, the Indenture Trustee and the Securities
Administrator hereby acknowledge that the Servicer is acting as bailee of the
Indenture Trustee in holding amounts on deposit in the Collection Account,
as
well as its bailee in holding any Related Documents released to the Servicer,
and any other items constituting a part of the Trust which from time to time
come into the possession of the Servicer. It is intended that, by the Servicer’s
acceptance of such bailee arrangement, the Indenture Trustee, as a secured
party
of the Mortgage Loans, will be deemed to have possession of such Related
Documents, such monies and such other items for purposes of Section 9-305 of
the
UCC of the state in which such property is held by the Servicer. Neither the
Indenture Trustee nor the Securities Administrator shall be liable with respect
to such documents, monies or items while in possession of the
Servicer.
Section
3.15. Investment
Company Act.
The
Issuer shall not become an “investment company” or be under the “control” of an
“investment company” as such terms are defined in the Investment Company Act of
1940, as amended (or any successor or amendatory statute), and the rules and
regulations thereunder (taking into account not only the general definition
of
the term “investment company” but also any available exceptions to such general
definition); provided,
however,
that the
Issuer shall be in compliance with this Section 3.15 if it shall have obtained
an order exempting it from regulation as an “investment company” so long as it
is in compliance with the conditions imposed in such order.
Section 3.16. |
Issuer
May Consolidate, etc.
|
(a) The
Issuer shall not consolidate or merge with or into any other Person,
unless:
(i) the
Person (if other than the Issuer) formed by or surviving such consolidation
or
merger shall be a Person organized and existing under the laws of the United
States of America or any state or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee and the Securities Administrator, in form reasonably
satisfactory to the Indenture Trustee and the Securities Administrator, the
due
and punctual payment of the principal of and interest on all Notes, and all
other amounts payable to the Indenture Trustee and the Securities Administrator,
the payment to the Certificate Paying Agent of all amounts due to the
Certificateholders, and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately
after giving effect to such transaction, no Event of Default shall have occurred
and be continuing;
(iii) the
Rating Agencies shall have notified the Issuer that such transaction shall
not
cause the rating of the Notes to be reduced, suspended or withdrawn or to be
considered by either Rating Agency to be below investment grade;
(iv) the
Issuer shall have received an Opinion of Counsel (and shall have delivered
a
copy thereof to the Indenture Trustee and the Securities Administrator) to
the
effect that such transaction will not (A) result in a “substantial modification”
of the Notes under Treasury Regulation Section 1.1001-3, or adversely affect
the
status of the Notes as indebtedness for federal income tax purposes, or (B)
if
100% of the Certificates are not owned by the Seller, cause the Trust to be
subject to an entity level tax for federal income tax purposes;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuer shall have delivered to the Indenture Trustee and the Securities
Administrator an Officer’s Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for or
relating to such transaction have been complied with (including any filing
required by the Exchange Act), and that such supplemental indenture is
enforceable.
(b) The
Issuer shall not convey or transfer any of its properties or assets, including
those included in the Collateral, to any Person, unless:
(i) the
Person that acquires by conveyance or transfer the properties and assets of
the
Issuer, the conveyance or transfer of which is hereby restricted, shall (A)
be a
United States citizen or a Person organized and existing under the laws of
the
United States of America or any state thereof, (B) expressly assume, by an
indenture supplemental hereto, executed and delivered to the Indenture Trustee
and the Securities Administrator, in form satisfactory to the Indenture Trustee
and the Securities Administrator, the due and punctual payment of the principal
of and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (C) expressly agree by means
of
such supplemental indenture that all right, title and interest so conveyed
or
transferred shall be subject and subordinate to the rights of the Holders of
the
Notes, (D) unless otherwise provided in such supplemental indenture, expressly
agree to indemnify, defend and hold harmless the Issuer, the Indenture Trustee
and the Securities Administrator against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E) expressly
agree
by means of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in connection
with the Notes;
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) the
Rating Agencies shall have notified the Issuer that such transaction shall
not
cause the rating of the Notes to be reduced, suspended or
withdrawn;
(iv) the
Issuer shall have received an Opinion of Counsel (and shall have delivered
a
copy thereof to the Indenture Trustee and the Securities Administrator) to
the
effect that such transaction will not (A) result in a “substantial modification”
of the Notes under Treasury Regulation Section 1.1001-3, or adversely affect
the
status of the Notes as indebtedness for federal income tax purposes, or (B)
if
100% of the Certificates are not owned by the Seller, cause the Trust to be
subject to an entity level tax for federal income tax purposes;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuer shall have delivered to the Indenture Trustee and the Securities
Administrator an Officer’s Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by
the Exchange Act).
Section 3.17. |
Successor
or Transferee.
|
(a) Upon
any
consolidation or merger of the Issuer in accordance with Section 3.16(a), the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer herein.
(b) Upon
a
conveyance or transfer of all the assets and properties of the Issuer pursuant
to Section 3.16(b), the Issuer will be released from every covenant and
agreement of this Indenture to be observed or performed on the part of the
Issuer with respect to the Notes immediately upon the delivery of written notice
to the Indenture Trustee and the Securities Administrator of such conveyance
or
transfer.
Section
3.18. No
Other Business.
The
Issuer shall not engage in any business other than financing, purchasing, owning
and selling and managing the Mortgage Loans and the issuance of the Notes and
Certificates in the manner contemplated by this Indenture and the Basic
Documents and all activities incidental thereto.
Section
3.19. No
Borrowing.
The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness except for the Notes under this
Indenture.
Section
3.20. Guarantees,
Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture or the Basic Documents, the Issuer shall
not
make any loan or advance or credit to, or guarantee (directly or indirectly
or
by an instrument having the effect of assuring another’s payment or performance
on any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or
agree contingently to do so) any stock, obligations, assets or securities of,
or
any other interest in, or make any capital contribution to, any other
Person.
Section
3.21. Capital
Expenditures.
The
Issuer shall not make any expenditure (by long-term or operating lease or
otherwise) for capital assets (either realty or personalty).
Section
3.22. Reserved.
Section
3.23. Restricted
Payments.
The
Issuer shall not, directly or indirectly, (i) pay any dividend or make any
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, to the Owner Trustee or any owner of a
beneficial interest in the Issuer or otherwise with respect to any ownership
or
equity interest or security in or of the Issuer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or security
or (iii) set aside or otherwise segregate any amounts for any such purpose;
provided,
however,
that the
Issuer may make, or cause to be made, (x) distributions and payments to the
Owner Trustee, the Indenture Trustee, the Securities Administrator, Noteholders
and the Certificateholders as contemplated by, and to the extent funds are
available for such purpose under this Indenture and the Trust Agreement and
(y)
payments to the Servicer or the Master Servicer pursuant to the terms of the
Servicing Agreement. The Issuer will not, directly or indirectly, make payments
to or distributions from the Collection Account except in accordance with this
Indenture and the Basic Documents.
Section
3.24. Notice
of Events of Default.
The
Issuer shall give the Indenture Trustee, the Securities Administrator and the
Rating Agencies prompt written notice of each Event of Default hereunder and
under the Trust Agreement.
Section
3.25. Further
Instruments and Acts.
Upon
request of the Indenture Trustee or the Securities Administrator, the Issuer
will execute and deliver such further instruments and do such further acts
as
may be reasonably necessary or proper to carry out more effectively the purpose
of this Indenture.
Section
3.26. Statements
to Noteholders.
On each
Payment Date, the Securities Administrator and the Certificate Registrar shall
prepare and make available on the Securities Administrator’s website,
xxxxx://xxx.xxxxxxx.xxx (or deliver at the recipient’s option), to each
Noteholder and Certificateholder the most recent statement prepared by the
Securities Administrator pursuant to Section 7.05 hereof.
Section 3.27. |
[Reserved].
|
Section 3.28. |
Certain
Representations Regarding the Trust.
|
(a) With
respect to that portion of the Collateral described in clauses (a) through
(d)
of the definition of Collateral, the Issuer represents to the Indenture Trustee
and the Securities Administrator that:
(i) This
Indenture creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Indenture Trustee, which
security interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from the Issuer.
(ii) The
Collateral constitutes “deposit accounts” or “instruments,” as applicable,
within the meaning of the applicable UCC.
(iii) The
Issuer owns and has good and marketable title to the Collateral, free and clear
of any lien, claim or encumbrance of any Person.
(iv) The
Issuer has taken all steps necessary to cause the Indenture Trustee to become
the account holder of the Collateral.
(v) Other
than the security interest granted to the Indenture Trustee pursuant to this
Indenture, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral.
(vi) The
Collateral is not in the name of any Person other than the Issuer or the
Indenture Trustee. The Issuer has not consented to the bank maintaining the
Collateral to comply with instructions of any Person other than the Indenture
Trustee.
(b) With
respect to that portion of the Collateral described in clause (e), the Issuer
represents to the Indenture Trustee and the Securities Administrator
that:
(i) This
Indenture creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Indenture Trustee, which
security interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from the Issuer.
(ii) The
Collateral constitutes “general intangibles” within the meaning of the
applicable UCC.
(iii) The
Issuer owns and has good and marketable title to the Collateral, free and clear
of any lien, claim or encumbrance of any Person.
(iv) Other
than the security interest granted to the Indenture Trustee pursuant to this
Indenture, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral.
(c) With
respect to any Collateral in which a security interest may be perfected by
filing, the Issuer has not authorized the filing of, and is not aware of any
financing statements against, the Issuer, that include a description of
collateral covering such Collateral, other than any financing statement relating
to the security interest granted to the Indenture Trustee hereunder or that
has
been terminated. The Issuer is not aware of any judgment or tax lien filings
against the Issuer.
(d) The
Issuer has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
in
all Collateral granted to the Indenture Trustee hereunder in which a security
interest may be perfected by filing and the Issuer will cause such security
interest to be maintained. Any financing statement that is filed in connection
with this Section 3.28 shall contain a statement that a purchase or security
interest in any collateral described therein will violate the rights of the
secured party named in such financing statement.
(e) The
foregoing representations may not be waived and shall survive the issuance
of
the Notes.
Section 3.29. |
Allocation
of Realized Losses.
|
(a) On
each
Payment Date, the Securities Administrator shall determine the total of the
Applied Realized Loss Amounts for such Payment Date. The Applied Realized Loss
Amount for any Payment Date shall be applied by reducing the Class Note Balance
of each Class of Mezzanine Notes beginning with the Class of Mezzanine Notes
then outstanding with the lowest relative payment priority, in each case until
the respective Class Note Balance thereof is reduced to zero. Any Applied
Realized Loss Amount allocated to a related Class of Mezzanine Notes shall
be
allocated among the Mezzanine Notes of such Class in proportion to their
respective Percentage Interests.
(b) With
respect to any Class of Mezzanine Notes to which an Applied Realized Loss Amount
has been allocated (including any such Class for which the related Class Note
Balance has been reduced to zero), the Class Note Balance of such Class will
be
increased up to the amount of Recoveries for such Payment Date, beginning with
the Class of Mezzanine Notes with the highest relative payment priority, up
to
the amount of Applied Realized Loss Amounts previously allocated to reduce
such
Class Note Balance. Any increase to the Class Note Balance of a Class of
Mezzanine Notes shall increase the Note Balance of the related Class
pro
rata
in
accordance with each Percentage Interest.
Section 3.30. |
Reserved.
|
Section 3.31. |
Reserved.
|
Section 3.32. |
Reserved.
|
ARTICLE
IV
THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
Section
4.01. The
Notes.
Each
Class of Notes shall be registered in the name of a nominee designated by the
Depository. Beneficial Owners will hold interests in the Notes through the
book-entry facilities of the Depository in minimum initial Note Balances of
$25,000 and integral multiples of $1 in excess thereof; provided that Offered
Notes must be purchased in minimum total investments of $100,000 per
Class.
The
Securities Administrator may for all purposes (including the making of payments
due on the Notes) deal with the Depository as the authorized representative
of
the Beneficial Owners with respect to the Notes for the purposes of exercising
the rights of Holders of the Notes hereunder. Except as provided in the next
succeeding paragraph of this Section 4.01, the rights of Beneficial Owners
with
respect to the Notes shall be limited to those established by law and agreements
between such Beneficial Owners and the Depository and Depository Participants.
Except as provided in Section 4.08 hereof, Beneficial Owners shall not be
entitled to definitive notes for the Notes as to which they are the Beneficial
Owners. Requests and directions from, and votes of, the Depository as Holder
of
the Notes shall not be deemed inconsistent if they are made with respect to
different Beneficial Owners. The Securities Administrator may establish a
reasonable record date in connection with solicitations of consents from or
voting by Noteholders and give notice to the Depository of such record date.
Without the consent of the Issuer and the Securities Administrator, no Note
may
be transferred by the Depository except to a successor Xxxxxxxxxx that agrees
to
hold such Note for the account of the Beneficial Owners.
In
the
event the Depository Trust Company resigns or is removed as Depository, the
Securities Administrator with the approval of the Issuer may appoint a successor
Depository. If no successor Depository has been appointed within 30 days of
the
effective date of the Depository’s resignation or removal, each Beneficial Owner
shall be entitled to certificates representing the Notes it beneficially owns
in
the manner prescribed in Section 4.08.
The
Notes
shall, on original issue, be executed on behalf of the Issuer by the Owner
Trustee, not in its individual capacity but solely as Owner Trustee,
authenticated by the Securities Administrator and delivered by the Securities
Administrator to or upon the order of the Issuer.
Section 4.02. |
Registration
of and Limitations on Transfer and Exchange of Notes; Appointment
of Note
Registrar and Certificate.
|
The
Securities Administrator shall cause to be kept at the Corporate Trust Office
a
Note Register in which, subject to such reasonable regulations as it may
prescribe, the Note Registrar shall provide for the registration of Notes and
of
transfers and exchanges of Notes as herein provided.
Subject
to the restrictions and limitations set forth below, upon surrender for
registration of transfer of any Note at the Corporate Trust Office, the Issuer
shall execute and the Note Registrar shall authenticate and deliver, in the
name
of the designated transferee or transferees, one or more new Notes in authorized
initial Note Balances evidencing the same Class and aggregate Percentage
Interests.
Subject
to the foregoing, at the option of the Noteholders, Notes may be exchanged
for
other Notes of like tenor and in authorized initial Note Balances evidencing
the
same Class and aggregate Percentage Interests upon surrender of the Notes to
be
exchanged at the Corporate Trust Office of the Note Registrar. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute and the
Securities Administrator shall authenticate and deliver the Notes which the
Noteholder making the exchange is entitled to receive. Each Note presented
or
surrendered for registration of transfer or exchange shall (if so required
by
the Note Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Note Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing
with such signature guaranteed by a commercial bank or trust company located
or
having a correspondent located in the city of New York. Notes delivered upon
any
such transfer or exchange will evidence the same obligations, and will be
entitled to the same rights and privileges, as the Notes
surrendered.
No
service charge shall be made for any registration of transfer or exchange of
Notes, but the Note Registrar shall require payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes.
The
Issuer hereby appoints the Securities Administrator as (i) Certificate Registrar
to keep at its Corporate Trust Office a Certificate Register pursuant to Section
3.09 of the Trust Agreement in which, subject to such reasonable regulations
as
it may prescribe, the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges thereof pursuant to Section
3.05
of the Trust Agreement and (ii) Note Registrar under this Indenture. The
Securities Administrator hereby accepts such appointments.
Section
4.03. Mutilated,
Destroyed, Lost or Stolen Notes.
If (i)
any mutilated Note is surrendered to the Securities Administrator, or the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Securities Administrator such security or indemnity as may be required by it
to
hold the Issuer, the Indenture Trustee and the Securities Administrator
harmless, then, in the absence of notice to the Issuer, the Note Registrar,
the
Indenture Trustee or the Securities Administrator that such Note has been
acquired by a protected purchaser, and provided that the requirements of Section
8-405 of the UCC are met, the Issuer shall execute, and upon its request the
Securities Administrator shall authenticate and deliver, in exchange for or
in
lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note;
provided,
however,
that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when
so
due or payable without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the
proviso to the preceding sentence, a protected purchaser of the original Note
in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Securities Administrator shall be entitled
to
recover such replacement Note (or such payment) from the Person to whom it
was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except
a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer, the Indenture Trustee or the Securities Administrator
in
connection therewith.
Upon
the
issuance of any replacement Note under this Section 4.03, the Issuer may require
the payment by the Holder of such Note of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Indenture Trustee
and the Securities Administrator) connected therewith.
Every
replacement Note issued pursuant to this Section 4.03 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone,
and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The
provisions of this Section 4.03 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes.
Section
4.04. Persons
Deemed Owners.
Prior
to due presentment for registration of transfer of any Note, the Issuer, the
Indenture Trustee, the Securities Administrator, the Paying Agent and any agent
of any of them may treat the Person in whose name any Note is registered (as
of
the day of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Indenture Trustee, the Securities Administrator the Paying Agent
nor
any agent of any of them shall be affected by notice to the
contrary.
Section
4.05. Cancellation.
All
Notes surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Securities Administrator,
be
delivered to the Securities Administrator and shall be promptly cancelled by
the
Securities Administrator. The Issuer may at any time deliver to the Securities
Administrator for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and
all
Notes so delivered shall be promptly cancelled by the Securities Administrator.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section 4.05, except as expressly permitted by
this Indenture. All cancelled Notes may be held or disposed of by the Securities
Administrator in accordance with its standard retention or disposal policy
as in
effect at the time unless the Issuer shall direct by an Issuer Request that
they
be destroyed or returned to it; provided,
however,
that
such Issuer Request is timely and the Notes have not been previously disposed
of
by the Securities Administrator.
Section 4.06. |
Book-Entry
Notes.
|
(a) The
Notes, upon original issuance, will be issued in the form of typewritten Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Depository, by, or on behalf of, the Issuer. The Notes
shall initially be registered on the Note Register in the name of Cede &
Co., the nominee of the initial Depository, and no Beneficial Owner will receive
a Definitive Note representing such Beneficial Owner’s interest in such Note,
except as provided in Section 4.08. With respect to such Notes, unless and
until
definitive, fully registered Notes (the “Definitive Notes”) have been issued to
Beneficial Owners pursuant to Section 4.08:
(i) the
provisions of this Section 4.06 shall be in full force and effect;
(ii) the
Note
Registrar, the Paying Agent, the Indenture Trustee and the Securities
Administrator shall be entitled to deal with the Depository for all purposes
of
this Indenture (including the payment of principal of and interest on the Notes
and the giving of instructions or directions hereunder) as the sole holder
of
the Notes, and shall have no obligation to the Beneficial Owners of the
Notes;
(iii) to
the
extent that the provisions of this Section 4.06 conflict with any other
provisions of this Indenture, the provisions of this Section 4.06 shall
control;
(iv) the
rights of Beneficial Owners shall be exercised only through the Depository
and
shall be limited to those established by law and agreements between such Owners
of Notes and the Depository and/or the Depository Participants. Unless and
until
Definitive Notes are issued pursuant to Section 4.08, the initial Depository
will make book-entry transfers among the Depository Participants and receive
and
transmit payments of principal of and interest on the Notes to such Depository
Participants; and
(v) whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders of Notes evidencing a specified percentage of the
Note
Balances of the Notes, the Depository shall be deemed to represent such
percentage with respect to the Notes only to the extent that it has received
instructions to such effect from Beneficial Owners and/or Depository
Participants owning or representing, respectively, such required percentage
of
the beneficial interest in the Notes and has delivered such instructions to
the
Securities Administrator.
(b) The
Class
N Notes offered and sold in reliance on the exemption from registration under
Rule 144A shall be issued initially in the form of one or more permanent global
Notes in definitive, fully registered form without interest coupons with the
applicable legends set forth in Exhibit A-2 added to the forms of such Class
N
Notes (each, a “Restricted Global Security”), which shall be deposited on behalf
of the subscribers for such Class N Notes represented thereby with the
Securities Administrator as custodian for the Depository and registered in
the
name of a nominee of the Depository, duly executed by the Issuer and
authenticated by the Securities Administrator as hereinafter provided. The
aggregate Note Balance of the Restricted Global Securities may from time to
time
be increased or decreased by adjustments made on the records of the Securities
Administrator or
the
Depository or its nominee, as the case may be, as hereinafter
provided.
(c) The
Class
N Notes sold in offshore transactions in reliance on Regulation S shall be
issued initially in the form of one or more permanent global Notes in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A-2 hereto added to the forms of such Class N
Notes
(each, a “Regulation S Global Security”), which shall be deposited on behalf of
the subscribers for such Class N Notes represented thereby with the Securities
Administrator as custodian for the Depository, duly executed by the Issuer
and
authenticated by the Securities Administrator as hereinafter provided. The
aggregate Note Balance of the Regulation S Global Securities may from time
to
time be increased or decreased by adjustments made on the records of the
Securities Administrator or the Depository or its nominee, as the case may
be,
as hereinafter provided.
Section
4.07. Notices
to Depository.
Whenever a notice or other communication to the Note Holders is required under
this Indenture, unless and until Definitive Notes shall have been issued to
Beneficial Owners pursuant to Section 4.08, the Securities Administrator shall
give all such notices and communications specified herein to be given to Holders
of the Notes to the Depository, and shall have no obligation to the Beneficial
Owners.
Section
4.08. Definitive
Notes.
If (i)
the Securities Administrator determines that the Depository is no longer willing
or able to properly discharge its responsibilities with respect to the Notes
and
the Securities Administrator is unable to locate a qualified successor or (ii)
after the occurrence of an Event of Default, Beneficial Owners of Notes
representing beneficial interests aggregating at least a majority of the Note
Balance of the Notes advise the Depository in writing that the continuation
of a
book-entry system through the Depository is no longer in the best interests
of
the Beneficial Owners, then the Depository shall notify all Beneficial Owners
and the Securities Administrator of the occurrence of any such event and of
the
availability of Definitive Notes to Beneficial Owners requesting the same.
Upon
surrender to the Securities Administrator of the typewritten Notes representing
the Book-Entry Notes by the Depository, accompanied by registration
instructions, the Issuer shall execute and the Securities Administrator shall
authenticate the Definitive Notes in accordance with the instructions of the
Depository. None of the Issuer, the Note Registrar, the Indenture Trustee or
the
Securities Administrator shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on,
such instructions. Upon the issuance of Definitive Notes, the Securities
Administrator shall recognize the Holders of the Definitive Notes as
Noteholders.
Section
4.09. Tax
Treatment.
The
Issuer has entered into this Indenture, and the Notes will be issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness. The Issuer,
the
Indenture Trustee and the Securities Administrator (in accordance with Section
6.06 hereof), by entering into this Indenture, and each Noteholder, by its
acceptance of its Note (and each Beneficial Owner by its acceptance of an
interest in the applicable Book-Entry Note), agree to treat the Notes for
federal, state and local income, single business and franchise tax purposes
as
indebtedness.
Section
4.10. Satisfaction
and Discharge of Indenture.
This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution
of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.03,
3.04, 3.06, 3.09, 3.17, 3.19 and 3.20, (v) the rights, obligations and
immunities of the Indenture Trustee and the Securities Administrator hereunder
(including the rights of the Indenture Trustee and the Securities Administrator
under Section 6.07 and the obligations of the Indenture Trustee and the
Securities Administrator under Section 4.11) and (vi) the rights of Noteholders
as beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee,
on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
the
Notes and shall release and deliver the Collateral to or upon the order of
the
Issuer, when
(A) either
(1) all
Notes
theretofore authenticated and delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been replaced or paid as provided in
Section 4.03 hereof and (ii) Notes for whose payment money has theretofore
been
deposited in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section
3.03)
have been delivered to the Securities Administrator for cancellation;
or
(2) all
Notes
not theretofore delivered to the Securities Administrator for cancellation
(a)
have become due and payable, (b) will become due and payable at the Final Stated
Maturity Date within one year, or (c) have been called for early redemption
pursuant to Section 8.07 hereof, and the Issuer, in the case of (a) or (b)
above, has irrevocably deposited or caused to be irrevocably deposited with
the
Securities Administrator cash or direct obligations of or obligations guaranteed
by the United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount sufficient to
pay
and discharge the entire indebtedness on such Notes then outstanding not
theretofore delivered to the Securities Administrator for cancellation when
due
on the Final Stated Maturity Date or other final Payment Date, or, in the case
of (c) above, the Issuer shall have complied with all requirements of Section
8.07 hereof,
(B) the
Issuer has paid or caused to be paid all other sums payable hereunder;
and
(C) the
Issuer has delivered to the Indenture Trustee and the Securities Administrator
an Officer’s Certificate and an Opinion of Counsel, each meeting the applicable
requirements of Section 10.01 hereof, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with and, if the Opinion of Counsel relates to a deposit
made
in connection with Section 4.10(A)(2)(b) above, such opinion shall further
be to
the effect that such deposit will constitute an “in-substance defeasance” within
the meaning of Revenue Ruling 85-42, 1985-1 C.B. 36, and in accordance
therewith, the Issuer will be the owner of the assets deposited in trust for
federal income tax purposes.
Section
4.11. Application
of Trust Money.
All
monies deposited with the Securities Administrator pursuant to Section 4.10
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly
or
through any Paying Agent or the Issuer, Certificate Paying Agent as designee
of
the Issuer, as the Securities Administrator may determine, to the Holders of
Notes or Certificates, of all sums due and to become due thereon for principal
and interest or otherwise; but such monies need not be segregated from other
funds except to the extent required herein or required by law.
Section
4.12. Derivative
Contracts for Benefit of the Certificates.
At any
time on or after the Closing Date, the Issuer shall have the right to convey
to
the Trust, solely for the benefit of the Holder of the Certificates, a
derivative contract or comparable instrument. Any such instrument shall
constitute a fully prepaid agreement. All collections, proceeds and other
amounts in respect of such an instrument shall be distributed to the
Certificates on the Payment Date following receipt thereof by the Securities
Administrator.
Section
4.13. Repayment
of Monies Held by Paying Agent.
In
connection with the satisfaction and discharge of this Indenture with respect
to
the Notes, all monies then held by any Person other than the Securities
Administrator under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Securities Administrator to
be
held and applied according to Section 3.05 and thereupon such Person shall
be
released from all further liability with respect to such monies.
Section
4.14. Temporary
Notes.
Pending
the preparation of any Definitive Notes, the Issuer may execute and upon its
written direction, the Securities Administrator may authenticate and make
available for delivery, temporary Notes that are printed, lithographed,
typewritten, photocopied or otherwise produced, in any denomination,
substantially of the tenor of the Definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidenced
by
their execution of such Notes.
If
temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of the Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office of the Securities Administrator
located at the office designated for such purposes, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes,
the
Issuer shall execute and the Securities Administrator shall authenticate and
make available for delivery, in exchange therefor, Definitive Notes of
authorized denominations and of like tenor, class and aggregate principal
amount. Until so exchanged, such temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive
Notes.
Section
4.15. Representation
Regarding ERISA.
By
acquiring an Offered Note or interest therein, each Holder of such Note or
Beneficial Owner of any such interest will be deemed to represent that either
(1) it is not acquiring the Note with Plan Assets or (2) (A) the acquisition,
holding and transfer of such Note will not give rise to a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and (B)
the
Notes are rated investment grade or better and such person believes that the
Notes are properly treated as indebtedness without substantial equity features
for purposes of the Department of Labor (“DOL”) regulation 29 C.F.R. §
2510.3-101, and agrees to so treat the Notes. Alternatively, regardless of
the
rating of the Notes, such person may provide the Securities Administrator with
an Opinion of Counsel, which Opinion of Counsel will not be at the expense
of
the Trust, the Issuer, the Seller, the Depositor, the Indenture Trustee, the
Securities Administrator, or the Master Servicer which opines that the
acquisition, holding and transfer of such Note or interest therein is
permissible under applicable law, will not constitute or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trust, the Issuer, the Seller, the Depositor, the Indenture Trustee,
the Securities Administrator or the Master Servicer to any obligation in
addition to those undertaken in the Indenture.
Section 4.16. |
Transfer
Restrictions for Class N Notes.
|
(a) No
transfer, sale, pledge or other disposition of any Class N Note or interest
therein shall be made unless that transfer, sale, pledge or other disposition
is
exempt from the registration and/or qualification requirements of the 1933
Act
and any applicable state securities laws, or is otherwise made in accordance
with the 1933 Act and such state securities laws. If a transfer of any Class
N
Note is to be made without registration under the 1933 Act (other than in
connection with the initial issuance thereof or a transfer thereof by the
Depositor or one of its Affiliates), then the Note Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) a certificate from the Noteholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1 hereto and a certificate
from
such Noteholder’s prospective transferee substantially in the form attached as
Exhibit F-2 hereto (which in the case of the Book-Entry Notes, the Noteholder
and the Noteholder’s prospective transferee will be deemed to have represented
such certification). None of the Issuer, the Depositor, the Indenture Trustee,
the Securities Administrator or the Note Registrar is obligated to register
or
qualify any Class N Notes under the Securities Act or any other securities
law
or to take any action not otherwise required under this Indenture to permit
the
transfer of any Class N Note or interest therein without registration or
qualification. Any Noteholder desiring to effect a transfer of Class N Notes
or
interests therein shall, and does hereby agree to, indemnify the Issuer, the
Depositor, the Owner Trustee, the Indenture Trustee, the Securities
Administrator and the Note Registrar against any liability that may result
if
the transfer is not so exempt or is not made in accordance with such federal
and
state laws.
(b) No
Class
N Note may be sold or transferred to a Person unless such Person certifies
substantially in the form of Exhibit F-2 hereto (which in the case of the
Book-Entry Notes, such Person will be deemed to have represented such
certification), which certification the Securities Administrator may rely upon
without further inquiry or investigation, to the following effect:
(i) Such
Person is neither: (1) an employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code (each,
a
“Plan”), nor (2) any Person who is directly or indirectly purchasing such Note
or interest therein on behalf of, as named fiduciary of, as trustee of, or
with
“plan assets” (as defined under the DOL Regulation at 29 C.F.R. Section
2510.3-101) of a Plan; or
(ii) (1)
The
acquisition, holding and transfer of the Class N Note will not give rise to
a
nonexempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code and (2) the Class N Note is rated investment grade or better and the
Transferee believes that the Class N Note is properly treated as indebtedness
without substantial equity features for purposes of the DOL Regulations, and
agrees to so treat the Class N Note; or
(iii) Such
Person has provided the Securities Administrator and the Owner Trustee with
an
Opinion of Counsel, which Opinion of Counsel will not be at the expense of
the
Issuer, the Depositor, the Seller, any Underwriter, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Servicer, the Master
Servicer or any successor servicer which opines that the purchase, holding
and
transfer of such Class N Note or interest therein is permissible under
applicable law, will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Issuer, the Seller, the Depositor, any Underwriter, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Servicer, the Master
Servicer or any successor servicer to any obligation in addition to those
undertaken in the Indenture.
Notwithstanding
the foregoing, a certification will not be required in connection with the
initial transfer of any such Note by the Depositor to an Affiliate of the
Depositor (in which case, the Depositor or any Affiliate thereof shall be deemed
to have represented that such Affiliate is not a Plan or any Person investing
“plan assets” of any Plan) and the Note Registrar shall be entitled to
conclusively rely upon a representation (which, upon the request of the Note
Registrar, shall be a written representation) from the Depositor of the status
of such transferee as an Affiliate of the Depositor.
(c) No
Note
sold in an offshore transaction in reliance on Regulation S, may be sold or
transferred to a Person unless such Person certifies substantially in the form
of Exhibit F-2, G-1 or G-2 hereto (which in the case of the Book-Entry Notes,
such Person will be deemed to have represented such certification), which
certification the Securities Administrator may rely upon without further inquiry
or investigation, to the following effect:
(i) Such
Person is not a U.S. person within the meaning of Regulation S and was, at
the
time the buy order was originated, outside the United States;
(ii) Such
Person understands that such Class N Notes have not been registered under the
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale, pledge
or other transfer of such Notes or any interest therein shall be made in the
United States or to or for the account or benefit of a U.S. person (each as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Class N Notes, such Class N Notes may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a qualified institutional buyer that is purchasing
such Class N Notes for its own account or for the account of a qualified
institutional buyer to which notice is given that the transfer is being made
in
reliance on Rule 144A or (B) in an offshore transaction (as defined in
Regulation S) in compliance with the provisions of Regulation S, in each case
in
compliance with the requirements of this Indenture; and it will notify such
transferee of the transfer restrictions specified in this Section 4.16;
and
(xxx) Xxxxxx
(A) such Person is neither (i) an employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx
plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to ERISA or Section 4975 of the Code
(each, a “Plan”), nor (ii) any Person who is directly or indirectly purchasing
such Note or interest therein on behalf of, as named fiduciary of, as trustee
of, or with “plan assets” (as defined under the DOL Regulation at 29 C.F.R.
Section 2510.3-101) of a Plan; (B) (1) the acquisition, holding and transfer
of
such Class N Note will not give rise to a nonexempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code and (2) such Class N Note
is
rated investment grade or better and such person believes that such Class N
Note
is properly treated as indebtedness without substantial equity features for
purposes of the DOL Regulations, and agrees to so treat such Class N Note or
(C)
such person has provided the Securities Administrator and the Owner Trustee
with
an Opinion of Counsel, which Opinion of Counsel will not be at the expense
of
the Issuer, the Depositor, the Seller, any Underwriter, the Owner Trustee,
the
Indenture Trustee, the Securities Administrator, the Servicer, the Master
Servicer or any successor servicer which opines that the acquisition, holding
and transfer of such Class N Note or interest therein is permissible under
applicable law, will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Issuer, the Depositor, the Seller, any Underwriter, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Servicer, the Master
Servicer or any successor servicer to any obligation in addition to those
undertaken in the Indenture.
Notwithstanding
the foregoing, a certification will not be required in connection with the
initial transfer of any such Note by the Depositor to an Affiliate of the
Depositor (in which case, the Depositor or any Affiliate thereof shall be deemed
to have represented that such Affiliate is not a Plan or any Person investing
“plan assets” of any Plan) and the Note Registrar shall be entitled to
conclusively rely upon a representation (which, upon the request of the Note
Registrar, shall be a written representation) from the Depositor of the status
of such transferee as an Affiliate of the Depositor.
(d) If
a
Person is acquiring any Class N Note or interest therein as a fiduciary or
agent
for one or more accounts, such Person shall be required to deliver to the Note
Registrar a certification (which in the case of the Book-Entry Notes, the
prospective transferee will be deemed to have represented such certification)
to
the effect that it has (i) sole investment discretion with respect to each
such
account and (ii) full power to make the foregoing acknowledgments,
representations, warranties, certifications and agreements with respect to
each
such account as set forth in subsections (b), (c) and (d) of this Section
4.16.
(e) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
the Notes remains outstanding and is held by or on behalf of the Depository,
transfers of a Global Security representing the Notes, in whole or in part,
shall only be made in accordance with this Section 4.16.
(i) Subject
to clauses (ii) and (iii) of this Section 4.16(e), transfers of a Global
Security representing the Class N Notes shall be limited to transfers of such
Global Security in whole, but not in part, to nominees of the Depository or
to a
successor of the Depository or such successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited with
or on behalf of the Depository wishes at any time to exchange its interest
in
such Restricted Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global Security to
a
Person who wishes to take delivery thereof in the form of an interest in a
Regulation S Global Security, such holder, provided such holder is not a U.S.
Person, may, subject to the rules and procedures of the Depository, exchange
or
cause the exchange of such interest for an equivalent beneficial interest in
the
Regulation S Global Security. Upon receipt by the Securities Administrator,
as
Note Registrar, of (A) instructions from the Depository directing the Securities
Administrator, as Note Registrar, to cause to be credited a beneficial interest
in a Regulation S Global Security in an amount equal to the beneficial interest
in such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Notes held through a Regulation S
Global Security, (B) a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the
Depository and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account to be credited with such
increase and (C) a certificate in the form of Exhibit G-1 hereto given by the
holder of such beneficial interest stating that the exchange or transfer of
such
interest has been made in compliance with the transfer restrictions applicable
to the Global Securities, including that the holder is not a U.S. Person and
pursuant to and in accordance with Regulation S, the Securities Administrator,
as Note Registrar, shall reduce the principal amount of the Restricted Global
Security and increase the principal amount of the Regulation S Global Security
by the aggregate principal amount of the beneficial interest in the Restricted
Global Security to be exchanged, and shall instruct Euroclear or Clearstream,
as
applicable, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Regulation S Global Security equal to the reduction in the
principal amount of the Restricted Global Security.
(iii) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of the Depository wishes at any time to transfer its interest
in
such Regulation S Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Restricted Global Security, such holder
may, subject to the rules and procedures of the Depository, exchange or cause
the exchange of such interest for an equivalent beneficial interest in a
Restricted Global Security. Upon receipt by the Securities Administrator, as
Note Registrar, of (A) instructions from the Depository directing the Securities
Administrator, as Note Registrar, to cause to be credited a beneficial interest
in a Restricted Global Security in an amount equal to the beneficial interest
in
such Regulation S Global Security to be exchanged but not less than the minimum
denomination applicable to such Holder’s Class N Notes held through a Restricted
Global Security, to be exchanged, such instructions to contain information
regarding the participant account with the Depository to be credited with such
increase, and (B) a certificate in the form of Exhibit G-2 hereto given by
the
holder of such beneficial interest and stating, among other things, that the
Person transferring such interest in such Regulation S Global Security
reasonably believes that the Person acquiring such interest in a Restricted
Global Security is a qualified institutional buyer within the meaning of Rule
144A, is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities
laws
of any State of the United States or any other jurisdiction, then the Securities
Administrator, as Note Registrar, will reduce the principal amount of the
Regulation S Global Security and increase the principal amount of the Restricted
Global Security by the aggregate principal amount of the beneficial interest
in
the Regulation S Global Security to be transferred and the Securities
Administrator, as Note Registrar, shall instruct the Depository, concurrently
with such reduction, to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Restricted
Global Security equal to the reduction in the principal amount of the Regulation
S Global Security.
(iv) Other
Exchanges.
In the
event that a Global Security is exchanged for Class N Notes in definitive
registered form without interest coupons, such Class N Notes may be exchanged
for one another only in accordance with such procedures as are substantially
consistent with the provisions above (including certification requirements
intended to insure that such transfers comply with Rule 144A or are to non-U.S.
Persons, or otherwise comply with Regulation S under the Securities Act, as
the
case may be, and as may be from time to time adopted by the Issuer and the
Securities Administrator.
(v) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 4.16(e)(3).
ARTICLE
V
DEFAULT
AND REMEDIES
Section
5.01. Events
of Default.
The
Issuer shall deliver to the Indenture Trustee and the Securities Administrator,
written notice in the form of an Officer’s Certificate, within five days after
learning of the occurrence of any event which with the giving of notice and
the
lapse of time would become an Event of Default under clause (iii), (iv) or
(v)
of the definition of “Event of Default,” its status and what action the Issuer
is taking or proposes to take with respect thereto. Neither the Indenture
Trustee nor the Securities Administrator shall be deemed to have knowledge
of
any Event of Default unless a Responsible Officer has actual knowledge thereof
or unless written notice of such Event of Default is received by a Responsible
Officer and such notice references the Notes, the Trust or this
Indenture.
Section
5.02. Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default should occur and be continuing, then and in every such case
the
Indenture Trustee shall, at the written direction of the Holders of Notes
representing not less than a majority of the aggregate Note Balance of the
Notes, declare the Notes to be immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee and the Securities
Administrator if such notice is given by the Noteholders), and upon any such
declaration the unpaid aggregate Note Balance, together with accrued and unpaid
interest thereon through the date of acceleration shall become immediately
due
and payable.
At
any
time after such declaration of acceleration of maturity with respect to an
Event
of Default has been made and before a judgment or decree for payment of the
money due has been obtained by the Securities Administrator as hereinafter
in
this Article V provided, Holders of the Notes representing not less than a
majority of the aggregate Note Balance of the Notes, by written notice to the
Issuer, the Indenture Trustee and the Securities Administrator, may waive the
related Event of Default and rescind and annul such declaration and its
consequences if
(i) the
Issuer has paid or deposited with the Securities Administrator a sum sufficient
to pay (a) all payments of principal of and interest on the Notes and all other
amounts that would then be due hereunder or upon the Notes if the Event of
Default giving rise to such acceleration had not occurred; and (b) all sums
paid
or advanced by the Securities Administrator hereunder and the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee
and
the Securities Administrator and its respective agents and counsel;
and
(ii) all
Events of Default, other than the nonpayment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.12.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereto.
Section 5.03. |
Collection
of Indebtedness and Suits for Enforcement by Indenture
Trustee.
|
(a) The
Issuer covenants that if (i) default is made in the payment of any interest
on
any Note when the same becomes due and payable, and such default continues
for a
period of five days, or (ii) default is made in the payment of the principal
of
or any installment of the principal of any Note when the same becomes due and
payable, the Issuer shall, upon demand of the Securities Administrator, at
the
direction of the Holders of a majority of the aggregate Note Balance of the
Notes, pay to the Securities Administrator, for the benefit of the Holders
of
Notes, the whole amount then due and payable on the Notes for principal and
interest, with interest at the applicable Note Rate upon the overdue principal,
and in addition thereto such further amount as shall be sufficient to cover
the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and the Securities
Administrator and its respective agents and counsel.
(b) In
case
the Issuer shall fail forthwith to pay such amounts upon such demand, the
Indenture Trustee, in its own name and as trustee of an express trust, subject
to the provisions of Section 10.16 hereof may institute a Proceeding for the
collection of the sums so due and unpaid, and may prosecute such Proceeding
to
judgment or final decree, and may enforce the same against the Issuer or other
obligor upon the Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor the Notes, wherever situated, the monies
adjudged or decreed to be payable.
(c) If
an
Event of Default occurs and is continuing, the Indenture Trustee, subject to
the
provisions of Section 10.16 hereof may, as more particularly provided in Section
5.04 hereof, in its discretion, proceed to protect and enforce its rights and
the rights of the Noteholders, by such appropriate Proceedings, as directed
in
writing by Holders of a majority of the aggregate Note Balance of the Notes,
to
protect and enforce any such rights, whether for the specific enforcement of
any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) In
case
there shall be pending, relative to the Issuer or any other obligor upon the
Notes or any Person having or claiming an ownership interest in the Trust,
Proceedings under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or
in
case of any other comparable judicial Proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer
or
such other obligor, the Indenture Trustee, as directed in writing by Holders
of
a majority of the aggregate Note Balance of the Notes, irrespective of whether
the principal of any Notes shall then be due and payable as therein expressed
or
by declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section, shall
be
entitled and empowered, by intervention in such Proceedings or
otherwise:
(i) to
file
and prove a claim or claims for the whole amount of principal and interest
owing
and unpaid in respect of the Notes and to file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee, the Securities Administrator and each predecessor Indenture Trustee
and
Securities Administrator, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and Securities Administrator and each predecessor
Indenture Trustee and Securities Administrator, except as a result of negligence
or bad faith) and of the Noteholders allowed in such Proceedings;
(ii) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of Notes in any election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;
(iii) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Noteholders and of the Indenture Trustee on their behalf, and
(iv) to
file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee or the Holders
of
Notes allowed in any judicial proceedings relative to the Issuer, its creditors
and its property; and any trustee, receiver, liquidator, custodian or other
similar official in any such Proceeding is hereby authorized by each of such
Noteholders to make payments to the Securities Administrator and, in the event
that the Indenture Trustee shall consent to the making of payments directly
to
such Noteholders, to pay to the Indenture Trustee and the Securities
Administrator such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee and the Securities Administrator, each
predecessor Indenture Trustee and Securities Administrator and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Indenture Trustee and the Securities Administrator
and each predecessor Indenture Trustee and Securities
Administrator.
(e) Nothing
herein contained shall be deemed to authorize the Indenture Trustee or the
Securities Administrator to authorize or consent to or vote for or accept or
adopt on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee or the Securities Administrator
to
vote in respect of the claim of any Noteholder in any such proceeding except,
as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All
rights of action and of asserting claims under this Indenture, or under any
of
the Notes, may be enforced by the Indenture Trustee without the possession
of
any of the Notes or the production thereof in any trial or other Proceedings
relative thereto, and any such action or proceedings instituted by the Indenture
Trustee shall be brought in its own name as trustee of an express trust, and
any
recovery of judgment, subject to the payment of the expenses, disbursements
and
compensation of the Indenture Trustee and the Securities Administrator, each
predecessor Indenture Trustee and Securities Administrator and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Notes, subject to Section 5.05 hereof.
(g) In
any
Proceedings brought by the Indenture Trustee (and also any Proceedings involving
the interpretation of any provision of this Indenture to which the Indenture
Trustee shall be a party), the Indenture Trustee shall be held to represent
all
the Holders of the Notes, and it shall not be necessary to make any Noteholder
a
party to any such Proceedings.
Section 5.04. |
Remedies;
Priorities.
|
(a) If
an
Event of Default shall have occurred and be continuing and if an acceleration
has been declared and not rescinded pursuant to Section 5.02 hereof, the
Indenture Trustee subject to the provisions of Section 10.16 hereof may, and
shall, at the written direction of the Holders of a majority of the aggregate
Note Balance of the Notes, do one or more of the following (subject to Section
5.05 hereof):
(i) institute
Proceedings in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Notes or under this Indenture
with
respect thereto, whether by declaration or otherwise enforce any judgment
obtained, and collect from the Issuer and any other obligor upon such Notes
monies adjudged due;
(ii) institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture with respect to the Trust;
(iii) exercise
any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture Trustee
and the Holders of the Notes; and
(iv) sell
the
Collateral or any portion thereof or rights or interest therein, at one or
more
public or private sales called and conducted in any manner permitted by law;
provided,
however,
that
the Indenture Trustee may not sell or otherwise liquidate the Trust following
an
Event of Default, unless (A) the Indenture Trustee obtains the consent of the
Holders of 100% of the aggregate Note Balance of the Notes, (B) the proceeds
of
such sale or liquidation distributable to the Holders of the Notes are
sufficient to discharge in full all amounts then due and unpaid upon such Notes
for principal and interest or (C) the Indenture Trustee determines that the
Mortgage Loans will not continue to provide sufficient funds for the payment
of
principal of and interest on the applicable Notes as they would have become
due
if the Notes had not been declared due and payable, and the Indenture Trustee
obtains the consent of the Holders of a majority of the aggregate Note Balance
of the Notes. In determining such sufficiency or insufficiency with respect
to
clause (B) and (C), the Indenture Trustee may, but need not, obtain and
conclusively rely upon written advice or an opinion (obtained at the expense
of
the Trust) of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust for such purpose. Notwithstanding the foregoing, so
long as a Servicer Event of Default has not occurred, any sale of the Trust
shall be made subject to the continued servicing of the Mortgage Loans by the
Servicer as provided in the Servicing Agreement.
(b) If
the
Indenture Trustee collects any money or property pursuant to this Article V,
the
Indenture Trustee shall forward such funds to the Securities Administrator
and
the Securities Administrator shall pay out the money or property in the
following order:
(i) to
the
Indenture Trustee and the Securities Administrator for amounts due under Section
6.07 hereof and to the Owner Trustee for amounts due pursuant to Article VII
of
the Trust Agreement;
(ii) to
the
Noteholders in the order of priority set forth in Section 3.05(b);
and
(iii) to
the
payment of the remainder, if any to the Certificate Paying Agent on behalf
of
the Issuer or to any other person legally entitled thereto.
The
Securities Administrator may fix a record date and Payment Date for any payment
to Noteholders pursuant to this Section 5.04. At least 15 days before such
record date, the Securities Administrator shall mail to each Noteholder a notice
that states the record date, the Payment Date and the amount to be
paid.
Section
5.05. Optional
Preservation of the Collateral.
If the
Notes have been declared to be due and payable under Section 5.02 following
an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may elect to take and maintain
possession of the Collateral. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes and other obligations of the Issuer,
the
Indenture Trustee and the Securities Administrator shall take such desire into
account when determining whether or not to take and maintain possession of
the
Trust. In determining whether and how to take and maintain possession of the
Trust, the Indenture Trustee may, but need not, obtain and rely upon the written
advice or an opinion (obtained at the expense of the Trust) of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
for
such purpose.
Section
5.06. Limitation
of Suits.
No
Holder of any Note shall have any right to institute any Proceeding, judicial
or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless and subject to the
provisions of Section 10.16 hereof
(i) such
Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;
(ii) the
Holders of not less than 25% of the aggregate Note Balance of the Notes have
made a written request to the Indenture Trustee to institute such Proceeding
in
respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such
Holder or Holders have offered to the Indenture Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred
in
complying with such request;
(iv) the
Indenture Trustee for 60 days after its receipt of such notice of request and
offer of indemnity has failed to institute such Proceedings; and
(v) no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Holders of a majority of the Note
Balances of the Notes.
It
is
understood and intended that no one or more Holders of Notes shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Notes or to obtain or to seek to obtain priority or preference over any
other
Holders or to enforce any right under this Indenture, except in the manner
herein provided.
Section 5.07. |
Unconditional
Rights of Noteholders To Receive Principal and Interest.
|
Notwithstanding
any other provisions in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Note on or after the respective due dates
thereof expressed in such Note or in this Indenture and to institute suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
Section
5.08. Restoration
of Rights and Remedies.
If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been
instituted.
Section
5.09. Rights
and Remedies Cumulative.
No
right or remedy herein conferred upon or reserved to the Indenture Trustee,
the
Securities Administrator or to the Noteholders is intended to be exclusive
of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section
5.10. Delay
or Omission Not a Waiver.
No
delay or omission of the Indenture Trustee or any Holder of any Note to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by
law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or
by
the Noteholders, as the case may be.
Section
5.11. Control
By Noteholders. The
Holders of a majority of the aggregate Note Balance of Notes shall have the
right to direct the time, method and place of conducting any Proceeding for
any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided
that:
(i) such
direction shall not be in conflict with any rule of law or with this
Indenture;
(ii) any
direction to the Indenture Trustee to sell or liquidate the Collateral shall
be
by Holders of Notes representing not less than 100% of the Note Balances of
the
Notes;
(iii) the
Indenture Trustee has been provided with indemnity satisfactory to it;
and
(iv) the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction of the Holders of Notes
representing a majority of the Note Balances of the Notes.
Notwithstanding
the rights of Noteholders set forth in this Section 5.11 the Indenture Trustee
need not take any action that it determines might involve it in
liability.
Section
5.12. Waiver
of Past Defaults. Prior
to the declaration of the acceleration of the maturity of the Notes as provided
in Section 5.02 hereof, the Holders of Notes representing not less than a
majority of the aggregate Note Balance of the Notes may waive any past Event
of
Default and its consequences except an Event of Default (a) with respect to
payment of principal of or interest on any of the Notes or (b) in respect of
a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Note. In the case of any such waiver, the Issuer,
the Indenture Trustee, the Securities Administrator and the Holders of the
Notes
shall be restored to their former positions and rights hereunder, respectively,
but no such waiver shall extend to any subsequent or other Event of Default
or
impair any right consequent thereto.
Upon
any
such waiver, any Event of Default arising therefrom shall be deemed to have
been
cured and not to have occurred, for every purpose of this Indenture; but no
such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereto.
Section
5.13. Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Note and each Beneficial
Owner of any interest therein by such Holder’s or Beneficial Owner’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee or the Securities
Administrator for any action taken, suffered or omitted by it as Indenture
Trustee or Securities Administrator, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in
its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted
by
the Indenture Trustee or the Securities Administrator, (b) any suit instituted
by any Noteholder, or group of Noteholders, in each case holding in the
aggregate more than 10% of the Note Balances of the Notes or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal
of
or interest on any Note on or after the respective due dates expressed in such
Note and in this Indenture.
Section
5.14. Waiver
of Stay or Extension Laws.
The
Issuer covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, that may affect the covenants or the performance
of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it
shall not hinder, delay or impede the execution of any power herein granted
to
the Indenture Trustee or the Securities Administrator, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
Section 5.15. |
Sale
of Trust.
|
(a) The
power
to effect any sale or other disposition (a “Sale”) of any portion of the Trust
pursuant to Section 5.04 hereof is expressly subject to the provisions of
Section 5.05 hereof and this Section 5.15. The power to effect any such Sale
shall not be exhausted by any one or more Sales as to any portion of the Trust
remaining unsold, but shall continue unimpaired until the entire Trust shall
have been sold or all amounts payable on the Notes and under this Indenture
shall have been paid. The Indenture Trustee may from time to time postpone
any
public Sale by public announcement made at the time and place of such Sale.
The
Indenture Trustee hereby expressly waives its right to any amount fixed by
law
as compensation for any Sale.
(b) The
Indenture Trustee shall not in any private Sale sell the Trust, or any portion
thereof, unless
(i) the
Holders of all Notes consent to or direct the Indenture Trustee to make, such
Sale, or
(ii) the
proceeds of such Sale would be not less than the entire amount which would
be
payable to the Noteholders under the Notes, in full payment thereof in
accordance with Section 5.02 hereof, on the Payment Date next succeeding the
date of such Sale, or
(iii) the
Indenture Trustee determines that the conditions for retention of the Collateral
set forth in Section 5.05 hereof cannot be satisfied (in making any
determination under this Section 5.15, the Indenture Trustee may conclusively
rely upon written advice or an opinion of an Independent investment banking
firm
obtained and delivered as provided in Section 5.05 hereof), the Holders of
Notes
representing at least 100% of the Note Balances of the Notes consent to such
Sale.
The
purchase by the Indenture Trustee of all or any portion of the Trust at a
private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
(c) [Reserved].
(d) In
connection with a Sale of all or any portion of the Trust,
(i) any
Holder or Holders of Notes may bid for and purchase the property offered for
sale, and upon compliance with the terms of sale may hold, retain and possess
and dispose of such property, without further accountability, and may, in paying
the purchase money therefor, deliver any Notes or claims for interest thereon
in
lieu of cash up to the amount which shall, upon distribution of the net proceeds
of such sale, be payable thereon, and such Notes, in case the amounts so payable
thereon shall be less than the amount due thereon, shall be returned to the
Holders thereof after being appropriately stamped to show such partial
payment;
(ii) the
Indenture Trustee, may bid for and acquire the property offered for Sale in
connection with any Sale thereof, and, subject to any requirements of, and
to
the extent permitted by, applicable law in connection therewith, may purchase
all or any portion of the Trust in a private sale, and, in lieu of paying cash
therefor, may make settlement for the purchase price by crediting the gross
Sale
price against the sum of (A) the amount which would be payable to the Holders
of
the Notes and Holders of Certificates on the Payment Date next succeeding the
date of such Sale and (B) the expenses of the Sale and of any Proceedings in
connection therewith which are reimbursable to it, without being required to
produce the Notes in order to complete any such Sale or in order for the net
Sale price to be credited against such Notes, and any property so acquired
by
the Indenture Trustee shall be held and dealt with by it in accordance with
the
provisions of this Indenture;
(iii) the
Indenture Trustee shall execute and deliver an appropriate instrument of
conveyance, prepared by the Issuer and satisfactory to the Indenture Trustee,
transferring its interest in any portion of the Trust in connection with a
Sale
thereof;
(iv) the
Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact
of the Issuer to transfer and convey its interest in any portion of the Trust
in
connection with a Sale thereof, and to take all action necessary to effect
such
Sale; and
(v) no
purchaser or transferee at such a Sale shall be bound to ascertain the Indenture
Trustee’s authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
Section
5.16. Action
on Notes.
The
Indenture Trustee’s right to seek and recover judgment on the Notes or under
this Indenture shall not be affected by the seeking, obtaining or application
of
any other relief under or with respect to this Indenture. Neither the lien
of
this Indenture nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Trust or upon any of the assets of the Issuer. Any
money
or property collected by the Indenture Trustee shall be applied in accordance
with Section 5.04(b) hereof.
Section 5.17. |
Performance
and Enforcement of Certain Obligations.
|
(a) Promptly
following a request from the Indenture Trustee to do so, the Issuer in its
capacity as holder of the Mortgage Loans, shall take all such lawful action
as
the Indenture Trustee may request to cause the Issuer to compel or secure the
performance and observance by the Seller, the Servicer and the Master Servicer,
as applicable, of each of their obligations to the Issuer under or in connection
with the Mortgage Loan Sale and Contribution Agreement and the Servicing
Agreement, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Mortgage Loan
Sale and Contribution Agreement and the Servicing Agreement to the extent and
in
the manner directed by the Indenture Trustee, as pledgee of the Mortgage Loans,
including the transmission of notices of default on the part of the Seller,
the
Servicer or the Master Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller, the Servicer or the Master Servicer of each of their obligations under
the Mortgage Loan Sale and Contribution Agreement and the Servicing
Agreement.
(b) The
Indenture Trustee, as pledgee of the Mortgage Loans, may, and at the direction
(which direction shall be in writing or by telephone (confirmed in writing
promptly thereafter)) of the Holders of 66-2/3% of the Note Balances of the
Notes, shall exercise all rights, remedies, powers, privileges and claims of
the
Issuer against the Originator, the Seller, the Servicer or the Master Servicer
under or in connection with the Mortgage Loan Sale and Contribution Agreement
and the Servicing Agreement, including the right or power to take any action
to
compel or secure performance or observance by the Originator, the Seller, the
Servicer or the Master Servicer, as the case may be, of each of their
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Mortgage Loan Sale and
Contribution Agreement and the Servicing Agreement, as the case may be, and
any
right of the Issuer to take such action shall not be suspended.
ARTICLE
VI
THE
INDENTURE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 6.01. |
Duties
of Indenture Trustee and the Securities Administrator.
|
(a) If
an
Event of Default has occurred and is continuing, each of the Indenture Trustee
and the Securities Administrator shall exercise the rights and powers vested
in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) each
of
the Indenture Trustee and the Securities Administrator undertakes to perform
such duties and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee or the Securities Administrator; and
(ii) in
the
absence of bad faith on its part, each of the Indenture Trustee and the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee or the Securities
Administrator and conforming to the requirements of this Indenture; however,
each of the Indenture Trustee and the Securities Administrator shall examine
the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) Neither
the Indenture Trustee nor the Securities Administrator may be relieved from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct, except that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section
6.01;
(ii) neither
the Indenture Trustee nor the Securities Administrator shall be liable for
any
error of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee or the Securities Administrator was negligent
in ascertaining the pertinent facts; and
(iii) neither
the Indenture Trustee nor the Securities Administrator shall be liable with
respect to any action it takes or omits to take in good faith in accordance
with
a direction received by it from Noteholders or from the Issuer, which they
are
entitled to give under the Basic Documents.
(d) Neither
the Indenture Trustee nor the Securities Administrator shall be liable for
interest on any money received by it.
(e) Money
held in trust by the Indenture Trustee or the Securities Administrator need
not
be segregated from other trust funds except to the extent required by law or
the
terms of this Indenture or the Trust Agreement.
(f) No
provision of this Indenture shall require the Indenture Trustee or the
Securities Administrator to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in
the
exercise of any of its rights or powers, if it shall have reasonable grounds
to
believe that repayment of such funds or indemnity satisfactory to it against
such risk or liability is not reasonably assured to it.
(g) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee and the Securities
Administrator shall be subject to the provisions of this Section and to the
provisions of the TIA.
(h) The
Indenture Trustee shall act in accordance with Section 6.03 of the Servicing
Agreement and shall act as successor to the Master Servicer or appoint a
successor Master Servicer in accordance with Section 6.04 of the Servicing
Agreement.
(i) In
order
to comply with its duties under U.S.A. Patriot Act, the Securities Administrator
shall obtain and verify certain information and documentation from the other
parties hereto, including, but not limited to, such party’s name, address, and
other identifying information.
(j) The
Securities Administrator agrees to notify the Master Servicer in writing no
later than 5:00 p.m. New York time on each Deposit Date of the aggregate dollar
amount of the funds received by the Securities Administrator from the Servicer
on such Deposit Date and any other information reasonably requested by the
Master Servicer, so as to enable the Master Servicer to make the reconciliations
and verifications required to be made by it pursuant to Section 4.01 of the
Servicing Agreement.
(k) The
Indenture Trustee shall, at the written direction of the Depositor, enforce
all
of its rights and exercise any remedies under the Interest Rate Swap Agreement.
In the event the Interest Rate Swap Agreement is terminated as a result of
the
designation by either party thereto of an Early Termination Date (as defined
therein), the Indenture Trustee shall, at the direction of the Depositor,
appoint a replacement counterparty to enter into a replacement swap agreement.
The Indenture Trustee shall have no responsibility with regard to the selection
of a replacement swap provider or the negotiation of a replacement swap
agreement. Any Swap Termination Payment received by the Securities Administrator
on behalf of the Indenture Trustee shall be part of Available Funds and shall
be
used to make any upfront payment required under a replacement swap agreement
and
any upfront payment received from the counterparty to a replacement swap
agreement shall be used to pay any Swap Termination Payment owed to the Swap
Provider. If the Indenture Trustee is unable to appoint a successor swap
provider within 30 days of the Early Termination Date, then the Securities
Administrator (acting on behalf of the Issuer) will deposit any Swap Termination
Payment received from the original Swap Provider into a separate, non-interest
bearing reserve account and will, on each subsequent payment date, withdraw
from
the amount then remaining on deposit in such reserve account an amount equal
to
the Net Swap Payment, if any, that would have been paid to the Issuer by the
original Swap Provider calculated in accordance with the terms of the original
Interest Rate Swap Agreement, and distribute such amount in accordance with
the
terms of this Indenture.
Section 6.02. |
Rights
of Indenture Trustee and Securities Administrator.
|
(a) Each
of
the Indenture Trustee and the Securities Administrator may conclusively rely
on,
and shall be fully protected from acting or refraining from acting upon, any
document believed by it to be genuine and to have been signed or presented
by
the proper person. Neither the Indenture Trustee nor the Securities
Administrator need investigate any fact or matter stated in the
document.
(b) Before
the Indenture Trustee or the Securities Administrator acts or refrains from
acting, it may require an Officer’s Certificate or an Opinion of Counsel.
Neither the Indenture Trustee nor the Securities Administrator shall be liable
for any action it takes or omits to take in good faith in reliance on an
Officer’s Certificate or Opinion of Counsel.
(c) Neither
the Indenture Trustee nor the Securities Administrator shall be liable for
any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided,
however,
that
the Indenture Trustee’s or the Securities Administrator’s conduct does not
constitute willful misconduct, negligence or bad faith.
(d) Each
of
the Indenture Trustee and the Securities Administrator may consult with counsel,
and the advice or Opinion of Counsel with respect to legal matters relating
to
the Basic Documents and the Notes shall be full and complete authorization
and
protection from liability in respect to any action taken, omitted or suffered
by
it hereunder or in connection herewith in good faith and in accordance with
the
advice or opinion of such counsel.
(e) Each
of
the Indenture Trustee and the Securities Administrator may execute any of the
trusts or powers hereunder or perform any duties hereunder, either directly
or
by or through agents, attorneys, custodians or nominees appointed with due
care,
and shall not be responsible for any willful misconduct or negligence on the
part of any agent, attorney, custodian or nominee so appointed.
(f) Any
permissive right of the Indenture Trustee enumerated in this Indenture shall
not
be construed as a duty.
(g) In
no
event shall the Indenture Trustee be liable, directly or indirectly, for any
special, indirect or consequential damages, even if the Indenture Trustee has
been advised of the possibility of such damages.
Section
6.03. Individual
Rights of Indenture Trustee and Securities Administrator.
The
Indenture Trustee or the Securities Administrator in its individual or any
other
capacity may become the owner or pledgee of Notes and may otherwise deal with
the Issuer or its Affiliates with the same rights it would have if it were
not
Indenture Trustee or the Securities Administrator, as applicable, subject to
the
requirements of the Trust Indenture Act. Any Note Registrar, co-registrar or
co-paying agent may do the same with like rights. However, each of the Indenture
Trustee and the Securities Administrator must comply with Sections 6.11 and
6.12
hereof.
Section
6.04. Indenture
Trustee’s and Securities Administrator’s Disclaimer.
Neither
the Indenture Trustee nor the Securities Administrator shall be responsible
for
and makes no representation as to the validity or adequacy of this Indenture
or
the Notes, it shall not be accountable for the Issuer’s use of the proceeds from
the Notes, and it shall not be responsible for any statement of the Issuer
in
the Indenture or in any document issued in connection with the sale of the
Notes
or in the Notes other than the Securities Administrator’s certificate of
authentication.
Section
6.05. Notice
of Event of Default.
Subject
to Section 5.01, the Indenture Trustee or the Securities Administrator shall
promptly mail to each Noteholder notice of the Event of Default after it is
actually known to a Responsible Officer
of
the Indenture Trustee or the Securities Administrator, unless such Event of
Default shall have been waived or cured. Except in the case of an Event of
Default in payment of principal of or interest on any Note, the Indenture
Trustee or the Securities Administrator may withhold the notice if and so long
as it in good faith determines that withholding the notice is in the interests
of Noteholders.
Section 6.06. |
Reports
by Securities Administrator to Holders and Tax
Administration.
|
The
Securities Administrator shall deliver to each Noteholder such information
as
may be required to enable such holder to prepare its federal and state income
tax returns. Pursuant to the Mortgage Loan Sale and Contribution Agreement,
the
Administrator will prepare and file (or cause to be prepared and filed), on
behalf of the Owner Trustee or the Issuer, all tax returns (if any) and
information reports, tax elections and such annual or other reports of the
Issuer as are necessary for preparation of tax returns and information reports
as required by the Code. In addition, the Securities Administrator shall prepare
a Form 1099 with respect to each calendar year.
Section
6.07. Compensation
and Indemnity. Each
of the Indenture Trustee and the Securities Administrator shall be paid by
the
Master Servicer from a portion of the Master Servicing Fee.
The
Issuer shall reimburse the Indenture Trustee, the Securities Administrator
and
the Owner Trustee for all reasonable out-of-pocket expenses incurred or made
by
it, including costs of collection, in addition to compensation for its services.
Such expenses shall include reasonable compensation and expenses, disbursements
and advances of the Indenture Trustee’s the Securities Administrator’s or the
Owner Trustee’s agents, counsel, accountants and experts. The Issuer shall
indemnify each of the Indenture Trustee, the Securities Administrator and the
Master Servicer and hold each of them harmless against any and all claim, tax,
penalty, loss, liability or expense (including attorneys’ fees and expenses) of
any kind whatsoever incurred by it in connection with the administration of
this
Trust and the performance of its duties under any of the Basic Documents. The
Indenture Trustee, the Securities Administrator or the Master Servicer, as
applicable, shall notify the Issuer promptly of any claim for which it may
seek
indemnity. Failure by the Indenture Trustee, the Securities Administrator or
the
Master Servicer to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder, unless the Issuer is materially prejudiced thereby.
The
Issuer shall defend any such claim, and the Indenture Trustee, the Securities
Administrator or the Master Servicer, as applicable (each an “Indemnified
Party”) shall have the right to employ separate counsel with respect to any such
claim and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such Indemnified Party unless: (i)
the
employment thereof has been specifically authorized by the Issuer in writing;
(ii) such Indemnified Party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from
or
additional to those available to the Issuer and in the reasonable judgment
of
such counsel it is advisable for such Indemnified Party to employ separate
counsel or (iii) the Issuer has failed to assume the defense of such claim
within a reasonable period of time following written notice thereof, it being
understood, however, with respect to any event described in clause (ii) or
clause (iii) hereof, that the Issuer shall not, in connection with any one
such
claim or separate but substantially similar or related claims in the same
jurisdiction arising out of the same general allegations or circumstances,
be
liable for the reasonable fees and expenses of more than one separate firm
of
attorneys (in addition to local counsel) at any time for all such Indemnified
Parties, which firm shall be designated in writing by the Indemnified Parties.
The Issuer is not obligated to reimburse any expense or indemnify against any
loss, liability or expense incurred by the Indenture Trustee, the Securities
Administrator or the Master Servicer through the Indenture Trustee’s, the
Securities Administrator’s or the Master Servicer’s own willful misconduct,
negligence or bad faith.
Notwithstanding
anything to the contrary contained herein, the Issuer shall not settle any
claim
involving the Indenture Trustee without the Indenture Trustee’s prior written
consent unless such settlement involves a complete and absolute release of
the
Indenture Trustee from any and all liability in connection with such
claim.
The
Issuer shall indemnify each of the Originator and the Seller to the extent
set
forth in Section 5.2 of the Mortgage Loan Sale and Contribution
Agreement.
The
Issuer’s payment and indemnification obligations to the Indenture Trustee, the
Securities Administrator, the Master Servicer and the Owner Trustee pursuant
to
this Section 6.07 shall survive the discharge of this Indenture and the
termination or resignation of the Indenture Trustee, the Securities
Administrator or the Master Servicer. When the Indenture Trustee, the Securities
Administrator, the Master Servicer or the Owner Trustee incurs expenses after
the occurrence of an Event of Default with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section
6.08. Replacement
of Indenture Trustee or Securities Administrator.
No
resignation or removal of the Indenture Trustee or the Securities Administrator
and no appointment of a successor Indenture Trustee or Securities Administrator
shall become effective until the acceptance of appointment by the successor
Indenture Trustee or Securities Administrator pursuant to this Section 6.08.
The
Indenture Trustee or the Securities Administrator may resign at any time by
so
notifying the Issuer. Holders of a majority of Note Balances of the Notes may
remove the Indenture Trustee or the Securities Administrator by so notifying
the
Indenture Trustee or the Securities Administrator, as applicable, and may
appoint a successor Indenture Trustee or Securities Administrator. The Issuer
shall remove the Indenture Trustee or the Securities Administrator
if:
(i) the
Indenture Trustee or the Securities Administrator fails to comply with Section
6.11 hereof;
(ii) the
Indenture Trustee or the Securities Administrator is adjudged a bankrupt or
insolvent;
(iii) a
receiver or other public officer takes charge of the Indenture Trustee or the
Securities Administrator or its respective property; or
(iv) the
Indenture Trustee or the Securities Administrator otherwise becomes incapable
of
acting.
If
the
Indenture Trustee or the Securities Administrator resigns or is removed or
if a
vacancy exists in the office of the Indenture Trustee or the Securities
Administrator for any reason (the Indenture Trustee in such event being referred
to herein as the retiring Indenture Trustee and the Securities Administrator
in
such event being referred to herein as the retiring Securities Administrator),
the Issuer shall, promptly appoint a successor Indenture Trustee or Securities
Administrator, as applicable.
A
successor Indenture Trustee or Securities Administrator shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee or Securities
Administrator, as applicable, and to the Issuer. Thereupon, the resignation
or
removal of the retiring Indenture Trustee or Securities Administrator shall
become effective, and the successor Indenture Trustee or Securities
Administrator shall have all the rights, powers and duties of the Indenture
Trustee or Securities Administrator, as applicable, under this Indenture. The
successor Indenture Trustee or Securities Administrator shall mail a notice
of
its succession to Noteholders. The retiring Indenture Trustee or Securities
Administrator shall promptly transfer all property held by it as Indenture
Trustee or Securities Administrator to the successor Indenture Trustee or
Securities Administrator, as applicable.
If
a
successor Indenture Trustee or Securities Administrator does not take office
within 30 days after the retiring Indenture Trustee or Securities Administrator
resigns or is removed, the retiring Indenture Trustee or Securities
Administrator, as applicable, the Issuer or the Holders of a majority of Note
Balances of the Notes may petition any court of competent jurisdiction for
the
appointment of a successor Indenture Trustee or Securities
Administrator.
Notwithstanding
the replacement of the Indenture Trustee or Securities Administrator pursuant
to
this Section, the Issuer’s obligations under Section 6.07 shall continue
for the benefit of the retiring Indenture Trustee or Securities
Administrator.
Section
6.09. Successor
Indenture Trustee or Securities Administrator by Xxxxxx.
If
either the Indenture Trustee or the Securities Administrator consolidates with,
merges or converts into, or transfers all or substantially all of its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation, without any further act, shall
be the successor Indenture Trustee or Securities Administrator, as applicable;
provided, that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11 hereof. The Indenture Trustee or
the
Securities Administrator, as applicable, shall provide the Rating Agencies
with
prior written notice of any such transaction.
If
at the
time such successor or successors by merger, conversion or consolidation to
the
Securities Administrator shall succeed to the trusts created by this Indenture
and any of the Notes shall have been authenticated but not delivered, any such
successor to the Securities Administrator may adopt the certificate of
authentication of any predecessor trustee and deliver such Notes so
authenticated; and if at that time any of the Notes shall not have been
authenticated, any successor to the Securities Administrator may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the
successor to the Securities Administrator; and in all such cases such
certificates shall have the full force which it is in the Notes or in this
Indenture provided that the certificate of the Securities Administrator shall
have.
Section 6.10. |
Appointment
of Co-Indenture Trustee or Separate Indenture Trustee.
|
(a) Notwithstanding
any other provisions of this Indenture, at any time, for the purpose of meeting
any legal requirement of any jurisdiction in which any part of the Trust may
at
the time be located, the Indenture Trustee shall have the power and may execute
and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, separate trustee or separate trustees, of all or
any
part of the Trust, and to vest in such Person or Persons, in such capacity
and
for the benefit of the Noteholders, such title to the Trust, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required
to
meet the terms of eligibility as a successor trustee under Section 6.11
hereof.
(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Collateral or
any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Indenture Trustee;
(ii) no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
(iii) the
Indenture Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any
notice, request or other writing given to the Indenture Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance
of
the trusts conferred, shall be vested with the estates or property specified
in
its instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating
to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any
separate trustee or co-trustee may at any time constitute the Indenture Trustee,
its agent or attorney-in-fact with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Indenture
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment
of a
new or successor trustee.
Section
6.11. Eligibility;
Disqualification. The
Indenture Trustee shall at all times satisfy the requirements of TIA § 310(a).
The Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and it or its parent shall have a long-term debt rating of “Baa3” or better by
Xxxxx’x and “BBB” or better by S&P. The Indenture Trustee shall comply with
TIA § 310(b), including the optional provision permitted by the second sentence
of TIA § 310(b)(9); provided,
however,
that
there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA § 310(b)(1) are
met.
Section
6.12. Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA § 311(a) to the extent
indicated.
Section
6.13. Representations
and Warranties. Each
of the Indenture Trustee and the Securities Administrator hereby represents
that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States.
(ii) The
execution and delivery of this Indenture by it, and the performance and
compliance with the terms of this Indenture by it, will not violate its charter
or bylaws.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Indenture has duly authorized the execution, delivery
and
performance of this Indenture, and has duly executed and delivered this
Indenture.
(iv) This
Indenture, assuming due authorization, execution and delivery by the Issuer,
constitutes a valid, legal and binding obligation of it, enforceable against
it
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, receivership, reorganization, moratorium and other laws affecting
the enforcement of creditors’ rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding
in
equity or at law.
(v) Each
of
the Indenture Trustee and the Securities Administrator is a “securities
intermediary,” as such term is defined in Section 8-102(a)(14)(B) of the New
York UCC, that in the ordinary course of its business maintains “securities
accounts” for others, as such term is used in Section 8-501 of the New York UCC.
The local law of jurisdiction of each of the Indenture Trustee and the
Securities Administrator as securities intermediary shall be the State of New
York.
Section
6.14. Directions
to Indenture Trustee and Securities Administrator.
The Indenture Trustee and the Securities Administrator are hereby
directed:
(i) in
the
case of the Indenture Trustee, to accept the pledge of the Mortgage Loans and
hold the assets of the Trust in trust for the Noteholders;
(ii) in
the
case of the Securities Administrator, to authenticate and deliver the Notes
substantially in the form prescribed by Exhibit A-1 and Exhibit A-2 to this
Indenture in accordance with the terms of this Indenture; and
(iii) to
take
all other actions as shall be required to be taken by the terms of this
Indenture.
Section
6.15. The
Agents. The
provisions of this Indenture relating to the limitations of the Indenture
Trustee’s and the Securities Administrator’s liability and to its indemnity,
rights and protections shall inure also to the Paying Agent and Note
Registrar.
ARTICLE
VII
NOTEHOLDERS’
LISTS AND REPORTS
Section 7.01. |
Issuer
To Furnish Securities Administrator Names and Addresses of
Noteholders.
|
The
Issuer will furnish or cause to be furnished to the Securities Administrator
(a)
not more than five days after each Record Date, a list, in such form as the
Securities Administrator may reasonably require, of the names and addresses
of
the Holders of Notes as of such Record Date, and (b) at such other times as
the
Securities Administrator may request in writing, within 30 days after receipt
by
the Issuer of any such request, a list of similar form and content as of a
date
not more than 10 days prior to the time such list is furnished; provided,
however,
that so
long as the Securities Administrator is the Note Registrar, no such list shall
be required to be furnished to the Securities Administrator.
Section 7.02. |
Preservation
of Information; Communications to Noteholders.
|
(a) The
Securities Administrator shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section
7.01
hereof and the names and addresses of Holders of Notes received by the
Securities Administrator in its capacity as Note Registrar. The Securities
Administrator may destroy any list furnished to it as provided in such Section
7.01 upon receipt of a new list so furnished.
(b) Noteholders
or Note Owners may communicate pursuant to TIA § 312(b) with other Noteholders
or Note Owners with respect to their rights under this Indenture or under the
Notes.
(c) The
Issuer, the Indenture Trustee, the Securities Administrator and the Note
Registrar shall have the protection of TIA § 312(c).
Section 7.03. |
Reports
of Issuer.
|
(a) Subject
to Section 3.13 of the Servicing Agreement,
(i) The
Securities Administrator shall file with the Commission on behalf of the Issuer,
with a copy to the Issuer within 15 days before the Issuer is required to file
the same with the Commission, the annual reports and the information, documents
and other reports (or such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the Issuer may
be
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) The
Securities Administrator shall file with the Commission, on behalf of the
Issuer, in accordance with rules and regulations prescribed from time to time
by
the Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations;
(iii) The
Securities Administrator shall supply (and the Securities Administrator shall
transmit by mail to all Noteholders described in TIA § 313(c)) such summaries of
any information, documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.03(a) and by rules and
regulations prescribed from time to time by the Commission; and
(iv) For
each
Distribution Date, through and including the Distribution Date in December
2006,
the Securities Administrator shall calculate the Significance Percentage of
the
Interest Rate Swap Agreement. If on any such Distribution Date, the Significance
Percentage is equal to or greater than 9%, the Securities Administrator shall
promptly notify the Depositor and the Depositor, on behalf of the Securities
Administrator, shall obtain the financial information required to be delivered
by the Swap Provider pursuant to the terms of the Interest Rate Swap Agreement.
If, on any succeeding Distribution Date through and including the Distribution
Date in December 2006, the Significance Percentage is equal to or greater than
10%, the Securities Administrator shall promptly notify the Depositor and the
Depositor shall, within 5 Business Days of such Distribution Date, deliver
to
the Securities Administrator the financial information provided to it by the
Swap Provider for inclusion in the Form 10-D relating to such Distribution
Date.
With
respect to any Payment Date, for purposes of determining the numerator of the
fraction that constitutes the Significance Percentage, the interest rate used
to
project future amounts payable under the Interest Rate Swap Agreement shall
be
equal to the highest rate reflected on the Implied Forwards Curve available
at
Bloomberg Financial Markets, L.P. for the remaining term of the Interest Rate
Swap Agreement plus the percentage equivalent of a fraction, the numerator
of
which is 3.00% and the denominator of which is the remaining Payment Dates
on
which the Securities Administrator is entitled to receive payments under the
Interest Rate Swap Agreement). The discount rate used to determine the net
present value of the estimated future amounts payable shall be equal to the
lowest rate reflected on the Implied Forwards Curve. The Securities
Administrator shall obtain the Implied Forwards Curve from Bloomberg within
15
Business Days of the respective Payment Date. To determine the Implied Forwards
Curve for such Payment Date, the Securities Administrator shall take the
following steps on the Bloomberg terminal: (1) the following keystrokes shall
be
entered: fwcv <enter>, 32 (or any such other number as represents the
United States) <enter>, 3 <enter>; (2) the Forwards shall be set to
“1-Mo”; (3) the Intervals shall be set to “1-Mo”; and (4) the Points shall be
set to equal the remaining term of the Interest Rate Swap Agreement in months
and the Securities Administrator shall click <enter>. For purposes of
estimating future amounts payable under the Interest Rate Swap Agreement, the
accrual period for both the Fixed Amounts and the Floating Amounts (as defined
in the Confirmation) shall be assumed to be a 30-day period in a 360-day
year.
(b) Unless
the Issuer otherwise determines, the fiscal year of the Issuer shall end on
December 31st
of each
year.
Section
7.04. Reports
by Securities Administrator.
If
required by TIA § 313(a), within 60 days after each January 30th
beginning with March 31, 2007, the Securities Administrator (on behalf of the
Indenture Trustee) shall mail to each Noteholder as required by TIA § 313(c) a
brief report dated as of such date that complies with TIA § 313(a). The
Securities Administrator (on behalf of the Indenture Trustee) also shall comply
with TIA § 313(b).
A
copy of
each report at the time of its mailing to Noteholders shall be filed by the
Securities Administrator with the Commission via XXXXX and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee and the Securities Administrator if and when the Notes are listed on
any
stock exchange.
Section 7.05. |
Statements
to Noteholders.
|
(a) Not
later
than each Payment Date the Securities Administrator shall prepare a statement
(the “Remittance Report”) containing the information set forth below with
respect to such Payment Date, which information shall be based solely upon
the
loan level information furnished by the Servicer and the Master Servicer, as
applicable, upon which the Securities Administrator shall conclusively rely
without independent verification thereof:
(i) the
Available Funds and the Note Rate for each Class for the related Payment
Date;
(ii) the
aggregate amount of the payment to each Class of Notes on such Payment
Date;
(iii) the
amount of the payment set forth in paragraph (ii) above in respect of interest,
the amount thereof in respect of any Class Interest Carryover Shortfall, and
the
amount of any Class Interest Carryover Shortfall remaining and the amount
thereof in respect of any Class N Interest Shortfall, and the amount of any
Class N Interest Shortfall remaining;
(iv) the
amount of the payment set forth in paragraph (ii) above in respect of principal
and the amount thereof in respect of the Class Principal Carryover Shortfall,
and any remaining Class Principal Carryover Shortfall;
(v) the
amount of Excess Interest paid as principal;
(vi) the
aggregate amount of the Servicing Fee and the Master Servicing Fee for such
Payment Date;
(vii) the
Pool
Balance and the aggregate Principal Balance of the Mortgage Loans in each Loan
Group as of the close of business on the last day of the preceding Due
Period;
(viii) the
Class
Note Balance of each Class of Notes after giving effect to payments allocated
to
principal;
(ix) the
Overcollateralization Amount and the Required Overcollateralization Amount
as of
the close of business on the Payment Date, after giving effect to payments
of
principal on such Payment Date;
(x) whether
a
Cumulative Loss Event or a Delinquency Event has occurred and is continuing
and
the calculation thereof;
(xi) the
aggregate amount of Principal Prepayments received during the related Prepayment
Period;
(xii) the
amount of all Curtailments that were received during the Due
Period;
(xiii) the
principal portion of all Monthly Payments received during the Due
Period;
(xiv) the
interest portion of all Monthly Payments received on the Mortgage Loans during
the Due Period;
(xv) the
amount of the Monthly Advances and the Compensating Interest payment to be
made
on the Determination Date;
(xvi) the
amount to be distributed to the Certificates for the Payment Date;
(xvii) the
weighted average remaining term to maturity of the Mortgage Loans and the
weighted average Loan Rate as of the first day of the related Due
Period;
(xviii) the
amount of all payments or reimbursements to the Servicer pursuant to Sections
3.03(ii) and (vi) of the Servicing Agreement (as reported by the
Servicer);
(xix) the
number of Mortgage Loans outstanding at the beginning and at the end of the
related Due Period;
(xx) the
amount of Liquidation Loan Losses experienced during the preceding Due Period
and the Cumulative Net Losses as a percentage of the Cut-Off Date Pool
Balance;
(xxi) as
of the
end of the preceding calendar month, the number and Principal Balance of
Mortgage Loans which are 30-59 days delinquent; the number and Principal Balance
of Mortgage Loans which are 60-89 days delinquent; the number and Principal
Balance of Mortgage Loans which are 90 or more days delinquent (including the
number and Principal Balance of Mortgage Loans which are in foreclosure; the
number and Principal Balance of Mortgage Loans in bankruptcy; and the number
and
Principal Balance of Mortgage Loans which are REO Property, each separately
set
forth) (for the avoidance of doubt, delinquencies in this clause (xxi) are
measured in accordance with the OTS method);
(xxii) the
amounts of Applied Realized Loss Amounts for the applicable Due Period and
the
cumulative amount of Applied Realized Loss Amounts to date;
(xxiii) the
number and aggregate Principal Balance of Mortgage Loans, other than Mortgage
Loans in default or imminent default, that were modified by the Servicer during
the related Due Period (as reported by the Servicer)
(xxiv) the
amount of Basis Risk Shortfall Amount paid to each Class of Group I
Notes;
(xxv) the
amount of any Net Swap Payments or Swap Termination Payments;
(xxvi) whether
a
Stepdown Date or Trigger Event is in effect on such Payment Date;
and
(xxvii) the
applicable Record Dates, Interest Accrual Periods and determination dates for
calculating payments for such Payment Date.
(b) The
Securities Administrator shall make available such report to the Servicer,
the
Master Servicer, the Indenture Trustee, the Seller, the Noteholders, the Rating
Agencies, Bloomberg (at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxxxx) and Intex Solutions (at 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, Attention: Xxxxxx Xxxxxxxx) on the Payment Date. The Securities
Administrator may fully rely upon and shall have no liability with respect
to
information provided by the Servicer or the Master Servicer. In the case of
information furnished pursuant to subclauses (ii), (iii), (iv) and (vi) above,
the amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the related
Cut-Off Date.
(c) The
Securities Administrator will make the Remittance Report (and, at its option,
any additional files containing the same information in an alternative format)
available each month to Noteholders and the parties to this Indenture via the
Securities Administrator’s internet website. The Securities Administrator’s
internet website shall initially be located at “xxx.xxxxxxx.xxx”. Assistance in
using the website can be obtained by calling the Securities Administrator’s
customer service desk at (000) 000-0000. Parties that are unable to use the
above distribution options are entitled to have a paper copy mailed to them
via
first class mail by calling the customer service desk and indicating such.
The
Securities Administrator shall have the right to change the way Remittance
Reports are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Securities Administrator
shall provide timely and adequate notification to all above parties regarding
any such changes. As a condition to access the Securities Administrator’s
internet website, the Securities Administrator may require registration and
the
acceptance of a disclaimer. The Securities Administrator will not be liable
for
the dissemination of information in accordance with this Agreement. The
Securities Administrator shall also be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Remittance Report and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
ARTICLE
VIII
ACCOUNTS,
DISBURSEMENTS AND RELEASES
Section
8.01. Collection
of Money.
Except
as otherwise expressly provided herein, the Indenture Trustee may demand payment
or delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee or the Securities
Administrator pursuant to this Indenture. The Securities Administrator shall
apply all such money received by it as provided in this Indenture. Except as
otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that
is
part of the Trust, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article
V.
Section 8.02. |
Trust
Accounts.
|
(a) On
or
prior to the Closing Date, the Issuer shall cause the
Securities Administrator
to
establish and maintain, in the name of the Indenture Trustee, for the benefit
of
the Noteholders, the Payment Account as provided in Section 3.01
hereof.
(b) On
each
Payment Date, the Securities Administrator shall pay all remaining amounts
on
deposit in the Payment Account to the Noteholders in respect of the Notes and
to
such other persons in the order of priority set forth in Section 3.05 hereof
(except as otherwise provided in Section 5.04(b) hereof).
Section
8.03. Officer’s
Certificate.
The
Indenture Trustee shall receive at least seven Business Days’ notice when
requested by the Issuer to take any action pursuant to Section 8.05(a) hereof,
accompanied by copies of any instruments to be executed, and the Indenture
Trustee shall also require, as a condition to such action, an Officer’s
Certificate, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking
of
such action have been complied with.
Section
8.04. Termination
Upon Payment to Noteholders.
This
Indenture and the respective obligations and responsibilities of the Issuer,
the
Indenture Trustee and the Securities Administrator created hereby shall
terminate upon the payment to Noteholders, the Certificate Paying Agent on
behalf of the Owner Trustee, the Certificateholders, the Indenture Trustee
and
the Securities Administrator of all amounts required to be paid pursuant to
Article III; provided,
however,
that in
no event shall the trust created hereby continue beyond the expiration of 21
years from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late ambassador of the United States to the Court of St. Xxxxx, living
on
the date hereof.
Section 8.05. |
Release
of Collateral.
|
(a) Subject
to the payment of its fees and expenses and the fees and expenses of the
Securities Administrator, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property
from
the lien of this Indenture, or convey the Indenture Trustee’s interest in the
same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture, including for the purposes of any repurchase
of a
Mortgage Loan pursuant to Section 3.16 of the Servicing Agreement. No party
relying upon an instrument executed by the Indenture Trustee as provided in
Article VIII hereunder shall be bound to ascertain the Indenture Trustee’s
authority, inquire into the satisfaction of any conditions precedent, or see
to
the application of any monies.
(b) The
Indenture Trustee shall, at such time as (i) there are no Notes Outstanding
and
(ii) all sums due to the Indenture Trustee and the Securities Administrator
pursuant to this Indenture have been paid, release any remaining portion of
the
Trust that secured the Notes from the lien of this Indenture.
(c) The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.05 only upon receipt of a request from the Issuer
accompanied by an Officers’ Certificate and an Opinion of Counsel stating that
all applicable requirements have been satisfied.
Section
8.06. Surrender
of Notes Upon Final Payment.
By
acceptance of any Note, the Holder thereof agrees to surrender such Note to
the
Securities Administrator promptly, prior to such Noteholder’s receipt of the
final payment thereon.
Section 8.07. |
Optional
Redemption of the Notes.
|
(a) The
Seller may, at its option, redeem the Notes on any Payment Date on or after
the
Optional Redemption Date, by purchasing (on a servicing-retained basis), on
such
Payment Date, all of the outstanding Mortgage Loans and REO Properties at a
price equal to the greater of (I) the sum of (w) 100% of the aggregate Principal
Balance of the Mortgage Loans plus (x) the lesser of (A) the appraised value
of
any REO Property as determined by the higher of two appraisals completed by
two
independent appraisers selected by the Seller and at the Seller’s expense and
(B) the Principal Balance of the Mortgage Loan related to such REO Property
plus
(y) in each case, the greater of (i) the aggregate amount of accrued and unpaid
interest on the Mortgage Loans through the related Due Period and (ii) thirty
(30) days’ accrued interest thereon at a rate equal to the Loan Rate, in each
case net of the Servicing Fee and the Master Servicing Fee and (II) the sum
of
(a) the fair market value of the assets of the Trust and (b) the greater of
(i)
the aggregate amount of accrued and unpaid interest on the Mortgage Loans
through the related Due Period and (ii) thirty (30) days’ accrued interest
thereon at a rate equal to the Loan Rate, in each case net of the Servicing
Fee
and the Master Servicing Fee and any Swap Termination Payment to the Swap
Provider then remaining unpaid which is due to the exercise of such option(the
“Redemption Price”); provided,
however,
that
the Seller hereby covenants and agrees not to exercise its rights under this
Section 8.07 on any Payment Date unless the Redemption Price is sufficient
to
redeem in full all of the Class N Notes (including all accrued and unpaid
interest thereon). Following an Optional Redemption of the Notes and a purchase
of the Mortgage Loans and any REO Properties pursuant to this Section 8.07,
the
Servicer shall be entitled to receive the Servicing Fee as compensation for
its
continued servicing of such Mortgage Loans and REO Properties.
(b) In
order
to exercise the foregoing option, the Seller shall provide written notice of
its
exercise of such option to the Indenture Trustee, the Securities Administrator
and the Owner Trustee at least 15 days prior to its exercise. Following receipt
of the notice, the Securities Administrator shall provide notice to the
Noteholders of the final payment on the Notes. In addition, the Seller shall,
not less than one Business Day prior to the proposed Payment Date on which
such
redemption is to be made, deposit the aggregate redemption price specified
in
(a) above with the Securities Administrator, who shall deposit the aggregate
redemption price into the Payment Account and shall, on the Payment Date after
receipt of the funds, apply such funds to make final payments of principal
and
interest on the Notes in accordance with Section 3.05(b) and (c) hereof and
payment in full to the Indenture Trustee and the Securities Administrator,
and
this Indenture shall be discharged subject to the provisions of Section 4.10
hereof. If for any reason the amount deposited by the Seller is not sufficient
to make such redemption or such redemption cannot be completed for any reason,
the amount so deposited by the Seller with the Securities Administrator shall
be
immediately returned to the Seller in full and shall not be used for any other
purpose or be deemed to be part of the Trust.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section 9.01. |
Supplemental
Indentures Without Consent of Noteholders.
|
(a) Without
the consent of the Holders of any Notes but with prior notice to the Rating
Agencies, the Issuer, the Indenture Trustee and the Securities Administrator,
when authorized by an Issuer Request, at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform
to
the provisions of the TIA as in force at the date of the execution thereof),
in
form satisfactory to the Indenture Trustee and the Securities Administrator,
for
any of the following purposes:
(i) to
correct or amplify the description of any property at any time subject to the
lien of this Indenture, or better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to be subjected to the lien
of this Indenture, or to subject to the lien of this Indenture additional
property;
(ii) to
evidence the succession, in compliance with the applicable provisions hereof,
of
another person to the Issuer, and the assumption by any such successor of the
covenants of the Issuer herein and in the Notes contained;
(iii) to
add to
the covenants of the Issuer, for the benefit of the Holders of the Notes, or
to
surrender any right or power herein conferred upon the Issuer;
(iv) to
convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee;
(v) to
cure
any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision herein
or in any supplemental indenture;
(vi) to
make
any other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that such action (as
evidenced by either (i) an Opinion of Counsel delivered to the Depositor, the
Issuer, the Seller, the Securities Administrator and the Indenture Trustee
or
(ii) confirmation from the Rating Agencies that such amendment will not result
in the reduction or withdrawal of the rating of any Class of Notes) shall not
materially and adversely affect the interests of the Holders of the
Notes;
(vii) to
evidence and provide for the acceptance of the appointment hereunder by a
successor trustee with respect to the Notes and to add to or change any of
the
provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to
the
requirements of Article VI hereof; or
(viii) to
modify, eliminate or add to the provisions of this Indenture to such extent
as
shall be necessary to effect the qualification of this Indenture under the
TIA
or under any similar federal statute hereafter enacted and to add to this
Indenture such other provisions as may be expressly required by the
TIA;
provided,
however,
that no
such indenture supplements shall be entered into unless the Indenture Trustee
and the Securities Administrator shall have received an Opinion of Counsel
as to
the enforceability of any such indenture supplement and to the effect that
(i)
such indenture supplement is permitted hereunder and (ii) entering into such
indenture supplement will not result in a “substantial modification” of the
Notes under Treasury Regulation Section 1.1001-3 or adversely affect the status
of the Notes as indebtedness for federal income tax purposes.
Each
of
the Indenture Trustee and the Securities Administrator is hereby authorized
to
join in the execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein
contained.
(b) The
Issuer, the Indenture Trustee and the Securities Administrator, when authorized
by an Issuer Request, may, also without the consent of any of the Holders of
the
Notes and prior notice to the Rating Agencies, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to,
or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under
this
Indenture; provided,
however,
that
such action as evidenced by an Opinion of Counsel, (i) is permitted by this
Indenture, and shall not (ii) adversely affect in any material respect the
interests of any Noteholder (which may be evidenced by confirmation from the
Rating Agencies that such amendment will not result in the reduction or
withdrawal of the rating of any Class of Notes) or (iii) if 100% of the
Certificates are not owned by the Seller, cause the Issuer to be subject to
an
entity level tax for federal income tax purposes.
(c) Notwithstanding
any of the other provisions of this Section 9.01, none of the Issuer, the
Indenture Trustee or the Securities Administrator shall knowingly enter into
any
amendment to this Agreement that adversely affects in any respect the rights
and
interests hereunder of the Swap Provider without the prior written consent
of
the Swap Provider, such consent not to be unreasonably withheld.
Section
9.02. Supplemental
Indentures With Consent of Noteholders.
The
Issuer, the Indenture Trustee and the Securities Administrator, when authorized
by an Issuer Request, also may, with prior notice to the Rating Agencies and,
with the consent of the Holders of not less than a majority of the Note Balance
of each Class of Notes affected thereby, by Act (as defined in Section 10.03
hereof) of such Holders delivered to the Issuer, the Indenture Trustee and
the
Securities Administrator, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner
or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided,
however,
that no
such supplemental indenture shall, without the consent of the Holder of each
Note affected thereby:
(i) change
the date of payment of any installment of principal of or interest on any Note,
or reduce the principal amount thereof or the interest rate thereon, change
the
provisions of this Indenture relating to the application of collections on,
or
the proceeds of the sale of, the Trust to payment of principal of or interest
on
the Notes, or change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture requiring
the application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due
dates
thereof;
(ii) reduce
the percentage of the Note Balances of the Notes, the consent of the Holders
of
which is required for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify
or
alter the provisions of the proviso to the definition of the term “Outstanding”
or modify or alter the exception in the definition of the term
“Holder”;
(iv) reduce
the percentage of the Note Balances of the Notes required to direct the
Indenture Trustee to direct the Issuer to sell or liquidate the Trust pursuant
to Section 5.04 hereof;
(v) modify
any provision of this Section 9.02 except to increase any percentage specified
herein or to provide that certain additional provisions of this Indenture or
the
Basic Documents cannot be modified or waived without the consent of the Holder
of each Note affected thereby;
(vi) modify
any of the provisions of this Indenture in such manner as to affect the
calculation of the amount of any payment of interest or principal due on any
Note on any Payment Date (including the calculation of any of the individual
components of such calculation); or
(vii) permit
the creation of any lien ranking prior to or on a parity with the lien of this
Indenture with respect to any part of the Trust or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note of the
security provided by the lien of this Indenture;
and
provided,
further,
that
such action shall not, as evidenced by an Opinion of Counsel, cause the Issuer
(if 100% of the Certificates are not owned by the Seller) to be subject to
an
entity level tax.
Any
such
action shall not (as evidenced by either (i) an Opinion of Counsel delivered
to
the Depositor, the Issuer, the Indenture Trustee and the Securities
Administrator or (ii) confirmation from the Rating Agencies that such amendment
will not result in the reduction or withdrawal of the rating of any Class of
Notes) adversely affect in any material respect the interest of any Holder
(other than a Holder who shall consent to such supplemental
indenture).
It
shall
not be necessary for any Act of Noteholders under this Section 9.02 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Promptly
after the execution by the Issuer, the Indenture Trustee and the Securities
Administrator of any supplemental indenture pursuant to this Section 9.02,
the
Securities Administrator shall mail to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the
Securities Administrator to mail such notice, or any defect therein, shall
not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section
9.03. Execution
of Supplemental Indentures.
In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the trusts
created by this Indenture, each of the Indenture Trustee and the Securities
Administrator shall be entitled to receive (in addition to the documents
required by Section 10.01), and subject to Sections 6.01 and 6.02 hereof, shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. Each of the Indenture Trustee and the Securities Administrator may,
but shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee’s or the Securities Administrator’s own rights,
duties, liabilities or immunities under this Indenture or
otherwise.
Section
9.04. Effect
of Supplemental Indenture.
Upon
the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and
immunities under this Indenture of the Indenture Trustee, the Securities
Administrator, the Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section
9.05. Conformity
with Trust Indenture Act.
Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture
Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
Section
9.06. Reference
in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee or
the
Securities Administrator shall, bear a notation in form approved by the
Indenture Trustee and the Securities Administrator as to any matter provided
for
in such supplemental indenture. If the Issuer, the Indenture Trustee or the
Securities Administrator shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee, the Securities Administrator
and the Issuer, to any such supplemental indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Securities Administrator
in
exchange for Outstanding Notes.
ARTICLE
X
MISCELLANEOUS
Section 10.01. |
Compliance
Certificates and Opinions, etc.
|
(a) Upon
any
application or request by the Issuer to the Indenture Trustee or the Securities
Administrator to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee or the Securities Administrator,
as applicable, (i) an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (ii) an Opinion of Counsel stating that
in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request
as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be
furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a
statement that each signatory of such certificate or opinion has read or has
caused to be read such covenant or condition and the definitions herein relating
thereto;
(ii) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(iii) a
statement that, in the opinion of each such signatory, such signatory has made
such examination or investigation as is necessary to enable such signatory
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with;
(iv) a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with; and
(v) if
the
signatory of such certificate or opinion is required to be Independent, the
statement required by the definition of the term “Independent
Certificate.”
(b) (i)
Prior
to the deposit of any Collateral or other property or securities with the
Indenture Trustee that is to be made the basis for the release of any property
or securities subject to the lien of this Indenture, the Issuer shall, in
addition to any obligation imposed in Section 10.01(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying
or stating the opinion of each person signing such certificate as to the fair
value (within 90 days prior to such deposit) to the Issuer of the Collateral
or
other property or securities to be so deposited and a report from a nationally
recognized accounting firm verifying such value.
(ii) Whenever
the Issuer is required to furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall also deliver to the
Indenture Trustee an Independent Certificate from a nationally recognized
accounting firm as to the same matters, if the fair value of the securities
to
be so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then current fiscal year
of
the Issuer, as set forth in the certificates delivered pursuant to clause (i)
above and this clause (ii), is 10% or more of the Note Balances of the Notes,
but such a certificate need not be furnished with respect to any securities
so
deposited, if the fair value thereof as set forth in the related Officer’s
Certificate is less than $25,000 or less than one percent of the Note Balances
of the Notes.
(iii) Whenever
any property or securities are to be released from the lien of this Indenture,
the Issuer shall also furnish to the Indenture Trustee an Officer’s Certificate
certifying or stating the opinion of each person signing such certificate as
to
the fair value (within 90 days prior to such release) of the property or
securities proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this Indenture
in
contravention of the provisions hereof.
(iv) Whenever
the Issuer is required to furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of any signer thereof as to the
matters described in clause (iii) above, the Issuer shall also furnish to the
Indenture Trustee an Independent Certificate as to the same matters if the
fair
value of the property or securities and of all other property or securities
released from the lien of this Indenture since the commencement of the
then-current calendar year, as set forth in the certificates required by clause
(iii) above and this clause (iv), equals 10% or more of the Note Principal
Balances of the Notes, but such certificate need not be furnished in the case
of
any release of property or securities if the fair value thereof as set forth
in
the related Officer’s Certificate is less than $25,000 or less than one percent
of the then Note Principal Balances of the Notes.
Section
10.02. Form
of Documents Delivered to Indenture Trustee.
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an Authorized Officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based
are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or
opinion of, or representations by, an officer or officers of the Seller or
the
Issuer, stating that the information with respect to such factual matters is
in
the possession of the Seller or the Issuer, unless such counsel knows, or in
the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Whenever
in this Indenture, in connection with any application or certificate or report
to the Indenture Trustee, it is provided that the Issuer shall deliver any
document as a condition of the granting of such application, or as evidence
of
the Issuer’s compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the effective
date of such certificate or report (as the case may be), of the facts and
opinions stated in such document shall in such case be conditions precedent
to
the right of the Issuer to have such application granted or to the sufficiency
of such certificate or report. The foregoing shall not, however, be construed
to
affect the Indenture Trustee’s or the Securities Administrator’s right to rely
upon the truth and accuracy of any statement or opinion contained in any such
document as provided in Article VI.
Section 10.03. |
Acts
of Noteholders.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Securities Administrator, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01 hereof)
conclusive in favor of the Securities Administrator and the Issuer, if made
in
the manner provided in this Section 10.03 hereof.
(b) The
fact
and date of the execution by any person of any such instrument or writing may
be
proved in any manner that the Securities Administrator deems
sufficient.
(c) The
ownership of Notes shall be proved by the Note Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Securities
Administrator or the Issuer in reliance thereon, whether or not notation of
such
action is made upon such Note.
Section 10.04. |
Notices
etc., to Indenture Trustee, Securities Administrator, Issuer and
Rating
Agencies.
|
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Noteholders or other documents provided or permitted by this Indenture shall
be
in writing and if such request, demand, authorization, direction, notice,
consent, waiver or act of Noteholders is to be made upon, given or furnished
to
or filed with:
(i) the
Indenture Trustee or the Securities Administrator by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Indenture Trustee or the Securities
Administrator at the Corporate Trust Office. The Indenture Trustee or the
Securities Administrator, as applicable, shall promptly transmit any notice
received by it from the Noteholders to the Issuer; or
(ii) the
Issuer by the Indenture Trustee, the Securities Administrator or by any
Noteholder shall be sufficient for every purpose hereunder if in writing and
mailed first-class, postage prepaid to the Issuer addressed to: Renaissance
Home
Equity Loan Trust 2006-3, in care of Wilmington Trust Company, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration, or at any other address previously furnished in writing to
the
Indenture Trustee and the Securities Administrator by the Issuer. The Issuer
shall promptly transmit any notice received by it from the Noteholders to the
Indenture Trustee and the Securities Administrator.
Notices
required to be given to the Rating Agencies by the Issuer, the Indenture
Trustee, the Securities Administrator or the Owner Trustee shall be in writing,
mailed first-class postage pre-paid, to (i) in the case of Moody’s, at the
following address: Xxxxx’x Investors Service, Inc., Residential Mortgage
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in
the
case of S&P, at the following address: Standard & Poor’s, 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed
Surveillance Department and (iii) in the case of Fitch, at the following
address: Fitch Ratings, 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or
as to
each of the foregoing, at such other address as shall be designated by written
notice to the other parties.
Section
10.05. Notices
to Noteholders; Waiver.
Where
this Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if
in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by
such event, at such Person’s address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so
mailed to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Noteholders shall be filed with the Securities Administrator but
such
filing shall not be a condition precedent to the validity of any action taken
in
reliance upon such a waiver.
In
case,
by reason of the suspension of regular mail service as a result of a strike,
work stoppage or similar activity, it shall be impractical to mail notice of
any
event to Noteholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall
be
satisfactory to the Securities Administrator shall be deemed to be a sufficient
giving of such notice.
Where
this Indenture provides for notice to the Rating Agencies, failure to give
such
notice shall not affect any other rights or obligations created hereunder,
and
shall not under any circumstance constitute an Event of Default.
Section
10.06. Conflict
with Trust Indenture Act.
If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions
of
the TIA, such required provision shall control.
The
provisions of TIA §§ 310 through 317 that impose duties on any Person (including
the provisions automatically deemed included herein unless expressly excluded
by
this Indenture) are a part of and govern this Indenture, whether or not
physically contained herein.
Section
10.07. Effect
of Headings.
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
Section
10.08. Successors
and Assigns. All
covenants and agreements in this Indenture and the Notes by the Issuer shall
bind its successors and assigns, whether so expressed or not. All agreements
of
the Indenture Trustee and the Securities Administrator in this Indenture shall
bind its successors, co-trustees and agents.
Section
10.09. Separability.
In case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
10.10. Third
Party Beneficiary.
The
Master Servicer shall be a third party beneficiary for purposes of Section
6.07
of this Indenture.
Section
10.11. Legal
Holidays.
In any
case where the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
Section
10.12. GOVERNING
LAW. THIS
INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section
10.13. Counterparts.
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
10.14. Recording
of Indenture.
If this
Indenture is subject to recording in any appropriate public recording offices,
such recording is to be effected by the Issuer and at its expense accompanied
by
an Opinion of Counsel at its expense (which may be counsel to the Indenture
Trustee or the Securities Administrator or any other counsel reasonably
acceptable to the Indenture Trustee and the Securities Administrator) to the
effect that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of
any
right or remedy granted to the Indenture Trustee under this
Indenture.
Section
10.15. Issuer
Obligation. No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee, the Indenture Trustee or the Securities
Administrator on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Indenture
Trustee, the Securities Administrator or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of
the
Indenture Trustee, the Securities Administrator or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee, the Indenture Trustee or the Securities Administrator or of
any
successor or assign of any of them in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee, the Securities Administrator and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes
of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust
Agreement.
Section
10.16. No
Petition. The
Indenture Trustee and the Securities Administrator, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time prior to one year from the date of termination
hereof, institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Notes, this Indenture or
any
of the Basic Documents, except for filing proofs of claim.
Section
10.17. Inspection.
The
Issuer agrees that, at its expense, on reasonable prior notice, it shall permit
any representative of the Indenture Trustee or the Securities Administrator,
during the Issuer’s normal business hours, to examine all the books of account,
records, reports and other papers of the Issuer, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss the Issuer’s affairs, finances and accounts with the
Issuer’s officers, employees, and Independent certified public accountants, all
at such reasonable times and as often as may be reasonably requested. The
Indenture Trustee or the Securities Administrator, as applicable, shall cause
its representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
Section
10.18. No
Recourse to Owner Trustee.
It is
expressly understood and agreed by the parties hereto that (a) this Indenture
is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of Renaissance Home Equity Loan Trust
2006-3, in the exercise of the powers and authority conferred and vested in
it,
(b) each of the representations, undertakings and agreements herein made on
the
part of the Issuer is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose for binding only the Issuer, (c) nothing herein contained shall
be construed as creating any liability of Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d)
under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Indenture or any other related
documents.
Section
10.19. Proofs
of Claim.
The
Indenture Trustee is authorized to file such proofs of claim and other papers
or
documents as may be necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel) and the Noteholders allowed in any judicial proceedings relative to
the
Issuer (or any other obligor upon the Notes), its creditors or its property
and
shall be entitled and empowered to collect, receive and distribute any money
or
other property payable or deliverable on any such claims and any custodian
in
any such judicial proceeding is hereby authorized by each Noteholder to make
such payments to the Indenture Trustee, as administrative expenses associated
with any such proceeding, and, in the event that the Indenture Trustee shall
consent to the making of such payments directly to the Noteholder to pay to
the
Indenture Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, and any other amounts due to the Indenture Trustee under Section 6.07
hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel,
and
any other amounts due the Indenture Trustee under Section 6.07 hereof out of
the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Noteholders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Indenture Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Noteholder
of the rights of any Noteholder thereof, or to authorize the Indenture Trustee
to vote in respect of the claim of any Noteholder in any such
proceeding.
IN
WITNESS WHEREOF, the Issuer, the Indenture Trustee and the Securities
Administrator have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
RENAISSANCE
HOME EQUITY LOAN TRUST 2006-3, as Issuer
By:
Wilmington Trust Company, not in its individual capacity but solely
as
Owner Trustee
|
|
By:
|
/s/
Xxxxxxxx X. Xxxxx
|
Name:
|
Xxxxxxxx
X. Xxxxx
|
Title:
|
Vice
President
|
HSBC
BANK USA, NATIONAL ASSOCIATION, as Indenture Trustee
|
|
By:
|
/s/
Xxxxxxxx Xxxxxxx
|
Name:
|
Xxxxxxxx
Xxxxxxx
|
Title:
|
Vice
President
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|
By:
|
/s/
Xxxxxx Xxxxxx
|
Name:
|
Xxxxxx
Xxxxxx
|
Title:
|
Vice
President
|
For
purposes of Section 6.07:
XXXXX
FARGO BANK, N.A., as Master Servicer
|
|
By:
|
/s/
Xxxxxx Xxxxxx
|
Name:
|
Xxxxxx
Xxxxxx
|
Title:
|
Vice
President
|
STATE
OF DELAWARE
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF NEW CASTLE
|
)
|
On
this
___ day of September, 2006, before me personally appeared __________________
to
me known, who being by me duly sworn, did depose and say, that he is a
__________________ of the Owner Trustee, one of the corporations described
in
and which executed the above instrument; and that he signed his name thereto
by
like order.
Notary
Public
NOTARY
PUBLIC
|
[NOTARIAL
SEAL]
STATE
OF
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
this
___ day of September, 2006, before me personally appeared __________________
to
me known, who being by me duly sworn, did depose and say, that he is a
__________________ of the Indenture Trustee, one of the corporations described
in and which executed the above instrument; and that he signed his name thereto
by like order.
Notary
Public
NOTARY
PUBLIC
|
[NOTARIAL
SEAL]
STATE
OF
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
this
___ day of September, 2006, before me personally appeared ________________
to me
known, who being by me duly sworn, did depose and say, that she is a
___________________ of the Securities Administrator, one of the corporations
described in and which executed the above instrument; and that she signed her
name thereto by like order.
Notary
Public
NOTARY
PUBLIC
|
[NOTARIAL
SEAL]
)
|
||
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
this
___ day of September, 2006, before me personally appeared ________________
to me
known, who being by me duly sworn, did depose and say, that she is a
___________________ of the Master Servicer, one of the corporations described
in
and which executed the above instrument; and that she signed her name thereto
by
like order.
Notary
Public
NOTARY
PUBLIC
|
[NOTARIAL
SEAL]
EXHIBIT
A-1 - FORM OF OFFERED NOTES
FORM
OF
CLASS ___ NOTES
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE SECURITIES ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE
HOLDER OF THIS NOTE OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE DEEMED
TO
REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF THE
INDENTURE.
THIS
NOTE
IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF PAYMENT
TO AMOUNTS AVAILABLE FROM THE TRUST AS PROVIDED IN THE INDENTURE REFERRED TO
BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS
NOTE.
PRINCIPAL
OF THIS NOTE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
[FOR
CLASS M NOTES: THIS NOTE IS SUBORDINATE TO CERTAIN NOTES TO THE EXTENT DESCRIBED
IN THE INDENTURE REFERRED TO HEREIN].
HOME
EQUITY LOAN ASSET-BACKED NOTES, SERIES 2006-3
CLASS
____
AGGREGATE
NOTE BALANCE:
$_____________________
|
NOTE
RATE:
|
INITIAL
NOTE BALANCE OF THIS BOND: $_____________________
|
BOND
NO. 1
|
PERCENTAGE
INTEREST: 100%
|
CUSIP
NO. [
]
|
Renaissance
Home Equity Loan Trust 2006-3 (the “Issuer”), a Delaware statutory trust, for
value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ($_________________) in monthly installments on the
twenty-fifth day of each month or, if such day is not a Business Day, the next
succeeding Business Day (each a “Payment Date”), commencing in October 2006 and
ending on or before the Payment Date occurring on the Final Stated Maturity
Date
and to pay interest on the Note Balance of this Note (this “Note”) outstanding
from time to time as provided below.
This
Note
is one of a duly authorized issue of the Issuer’s Home Equity Loan Asset-Backed
Notes, Series 2006-3 (the “Notes”), issued under an Indenture dated as of
September 28, 2006 (the “Indenture”), among the Issuer, HSBC Bank USA, National
Association, as indenture trustee (the “Indenture Trustee”, which term includes
any successor Indenture Trustee under the Indenture) and Xxxxx Fargo Bank,
N.A.,
as securities administrator (the “Securities Administrator”, which term includes
any successor Securities
Administrator under
the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights thereunder of the
Issuer, the Indenture Trustee, the Securities Administrator and the Holders
of
the Notes and the terms upon which the Notes are to be authenticated and
delivered. All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Payments
of principal and interest on this Note will be made on each Payment Date to
the
Noteholder of record as of the related Record Date. The “Note Balance” of a Note
as of any date of determination is equal to the Initial Note Balance thereof,
reduced by the aggregate of all amounts previously paid with respect to such
Note on account of principal and the aggregate amount of cumulative Realized
Losses allocated to such Note on all prior Payment Dates.
The
principal of, and interest on, this Note are due and payable as described in
the
Indenture, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be equal to this
Note’s pro
rata
share of
the aggregate payments on all Class ____ Notes as described above, and shall
be
applied as between interest and principal as provided in the
Indenture.
All
principal and interest accrued on the Notes, if not previously paid, will become
finally due and payable at the Final Stated Maturity Date.
The
Notes
are subject to redemption in whole, but not in part, by the Seller on any
Payment Date on or after the Optional Redemption Date.
The
Issuer shall not be liable upon the indebtedness evidenced by the Notes except
to the extent of amounts available from the Trust which constitutes security
for
the payment of the Notes. The assets included in the Trust will be the sole
source of payments on the Class ____ Notes, and each Holder hereof, by its
acceptance of this Note, agrees that (i) such Note will be limited in right
of
payment to amounts available from the Trust as provided in the Indenture and
(ii) such Holder shall have no recourse to the Issuer, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Seller, the Servicer,
the
Master Servicer or any of their respective affiliates, or to the assets of
any
of the foregoing entities, except the assets of the Issuer pledged to secure
the
Class ____ Notes pursuant to the Indenture and the rights conveyed to the Issuer
under the Indenture.
Any
payment of principal or interest payable on this Note which is punctually paid
on the applicable Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the Record Date for such Payment
Date by check mailed to such person’s address as it appears in the Note Register
on such Record Date, except for the final installment of principal and interest
payable with respect to such Note, which shall be payable as provided below.
Notwithstanding the foregoing, upon written request with appropriate
instructions by the Holder of this Note delivered to the Securities
Administrator at least five Business Days prior to the Record Date, any payment
of principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Holder. All scheduled reductions in the Note Balance of
a
Note (or one or more predecessor Notes) effected by payments of principal made
on any Payment Date shall be binding upon all Holders of this Note and of any
note issued upon the registration of transfer thereof or in exchange therefor
or
in lieu thereof, whether or not such payment is noted on such Note. The final
payment of this Note shall be payable upon presentation and surrender thereof
on
or after the Payment Date thereof at the office or agency of the Issuer
maintained by it for such purpose pursuant to Section 3.02 of the
Indenture.
Subject
to the foregoing provisions, each Note delivered under the Indenture, upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the right to unpaid principal and interest that were carried by
such
other Note.
If
an
Event of Default as defined in the Indenture shall occur and be continuing
with
respect to the Notes, the Notes may become or be declared due and payable in
the
manner and with the effect provided in the Indenture. If any such acceleration
of maturity occurs prior to the payment of the entire unpaid Note Balance of
the
Notes, the amount payable to the Holder of this Note will be equal to the sum
of
the unpaid Note Balance of the Notes, together with accrued and unpaid interest
thereon as described in the Indenture. The Indenture provides that,
notwithstanding the acceleration of the maturity of the Notes, under certain
circumstances specified therein, all amounts collected as proceeds of the Trust
securing the Notes or otherwise shall continue to be applied to payments of
principal of and interest on the Notes as if they had not been declared due
and
payable.
The
failure to pay any Class Interest Carryover Shortfall at any time when funds
are
not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under the Indenture.
The
Holder of this Note or Beneficial Owner of any interest herein is deemed to
represent that either (1) it is not acquiring this Note with Plan Assets or
(2)(A) the acquisition, holding and transfer of this Note will not give rise
to
a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code and (B) this Note is rated investment grade or better and such person
believes that this Note is properly treated as indebtedness without substantial
equity features for purposes of the DOL Regulations, and agrees to so treat
this
Note. Alternatively, regardless of the rating of this Note, such person may
provide the Securities Administrator with an Opinion of Counsel, which Opinion
of Counsel will not be at the expense of the Trust, the Issuer, the Seller,
the
Depositor, the Indenture Trustee, the Securities Administrator, or the Master
Servicer or any successor servicer which opines that the acquisition, holding
and transfer of this Note or interest herein is permissible under applicable
law, will not constitute or result in a non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Trust, the Issuer,
the Seller, the Depositor, the Indenture Trustee, the Securities Administrator
or the Master Servicer to any obligation in addition to those undertaken in
the
Indenture.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note may be registered on the Note Register of the Issuer.
Upon surrender for registration of transfer of, or presentation of a written
instrument of transfer for, this Note at the office or agency designated by
the
Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the
Securities Administrator,
one or
more new Notes of any authorized denominations and of a like aggregate initial
Note Balance, will be issued to the designated transferee or
transferees.
Prior
to
the due presentment for registration of transfer of this Note, the Issuer,
the
Indenture Trustee, the Securities Administrator and any agent of the Issuer,
the
Indenture Trustee or the Securities Administrator may treat the Person in whose
name this Note is registered as the owner of such Note (i) on the applicable
Record Date for the purpose of making payments and interest of such Note and
(ii) on any other date for all other purposes whatsoever, as the owner hereof,
whether or not this Note be overdue, and neither the Issuer, the Indenture
Trustee, the Securities Administrator nor any such agent of any of them shall
be
affected by notice to the contrary.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuer and
the
rights of the Holders of the Notes under the Indenture at any time by the Issuer
and the Holders of a majority of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the aggregate Note Balance of the Notes on behalf
of
the Holders of all the Notes, to waive any past Default under the Indenture
and
its consequences. Any such waiver by the Holder, at the time of the giving
thereof, of this Note (or any one or more predecessor Notes) shall bind the
Holder of every Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent
or
waiver is made upon such Note. The Indenture also permits the Issuer, the
Indenture Trustee and the Securities Administrator to amend or waive certain
terms and conditions set forth in the Indenture without the consent of the
Holders of the Notes issued thereunder.
Initially,
this Note will be registered in the name of Cede & Co. as nominee of DTC,
acting in its capacity as the Depository for this Note. This Note will be
delivered by the clearing agency in denominations as provided in the Indenture
and subject to certain limitations therein set forth. This Note is exchangeable
for a like aggregate initial Note Balance of Notes of different authorized
denominations, as requested by the Holder surrendering same.
Unless
the Certificate of Authentication hereon has been executed by the Securities
Administrator by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
AS
PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS NOTE SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF
NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
IN
WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed
by
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee.
Dated:
September ___, 2006
BY:
WILMINGTON TRUST COMPANY, not in its individual capacity but solely
in its
capacity as Owner Trustee
|
|
By:
|
|
Authorized
Signatory
|
INDENTURE
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Notes referred to in the within-mentioned Indenture.
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
|
|
By:
|
|
Authorized
Signatory
|
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of the Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN
COM
|
--
|
as
tenants in common
|
TEN
ENT
|
--
|
as
tenants by the entireties
|
JT
TEN
|
--
|
as
joint tenants with right of survivorship and not as tenants in
common
|
UNIF
GIFT MIN ACT
|
--
|
____________
Custodian
|
(Cust) (Minor)
|
||
under
Uniform Gifts to Minor Act
|
||
(State)
|
Additional
abbreviations may also be used though not in the above LIST.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
OF
ASSIGNEE:
(Please
print or typewrite name and address, including zip code, of
assignee)
the
within Note and all rights thereunder, and hereby irrevocably constitutes and
appoints
attorney
to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
____________________ _________________________________
Signature
Guaranteed by _________________________________
NOTICE:
The signature(s) to this assignment must correspond with the name as it appears
upon the face of the within Note in every particular, without alteration or
enlargement or any change whatsoever. Signature(s) must be guaranteed by a
commercial bank or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
EXHIBIT
A-2 - FORM OF CLASS N NOTES
FORM
OF
CLASS ___ NOTES
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE INDENTURE TRUSTEE OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
NOTE
IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF PAYMENT
TO AMOUNTS AVAILABLE FROM THE TRUST AS PROVIDED IN THE INDENTURE REFERRED TO
BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS
NOTE.
PRINCIPAL
OF THIS NOTE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
THIS
NOTE
IS SUBORDINATE TO THE OFFERED NOTES TO THE EXTENT DESCRIBED IN THE INDENTURE
REFERRED TO HEREIN.
THIS
NOTE
HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE OR ANY INTEREST HEREIN
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 4.16 OF THE INDENTURE REFERRED TO
HEREIN. [FOR REGULATION S ONLY: NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES (AS DEFINED IN
RULES 901 THROUGH 905 OF THE SECURITIES ACT (“REGULATION S”)) OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), IN THE
ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.]
NO
TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (“PLAN”) THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS NOTE OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, UNLESS
SUCH PLAN OR PERSON PROVIDES THE CERTIFICATION DESCRIBED IN SECTION 4.16 OF
THE
INDENTURE REFERRED TO HEREIN.
HOME
EQUITY LOAN ASSET-BACKED NOTES, SERIES 2006-3
CLASS
____
AGGREGATE
NOTE BALANCE:
$_____________________
|
NOTE
RATE:
|
INITIAL
NOTE BALANCE OF THIS BOND: $_____________________
|
BOND
NO. 1
|
PERCENTAGE
INTEREST: 100%
|
CUSIP
NO. [ ]
|
Renaissance
Home Equity Loan Trust 2006-3 (the “Issuer”), a Delaware statutory trust, for
value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ($_________________) in monthly installments on the
twenty-fifth day of each month or, if such day is not a Business Day, the next
succeeding Business Day (each a “Payment Date”), commencing in October 2006 and
ending on or before the Payment Date occurring on the Final Stated Maturity
Date
and to pay interest on the Note Balance of this Note (this “Note”) outstanding
from time to time as provided below.
This
Note
is one of a duly authorized issue of the Issuer’s Home Equity Loan Asset-Backed
Notes, Series 2006-3 (the “Notes”), issued under an Indenture dated as of
September 28, 2006 (the “Indenture”), among the Issuer, HSBC Bank USA, National
Association, as indenture trustee (the “Indenture Trustee”, which term includes
any successor Indenture Trustee under the Indenture) and Xxxxx Fargo Bank,
N.A.,
as securities administrator (the “Securities Administrator”, which term includes
any successor Securities Administrator under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights thereunder of the Issuer, the Indenture Trustee, the
Securities Administrator and the Holders of the Notes and the terms upon which
the Notes are to be authenticated and delivered. All terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them
in
the Indenture.
Payments
of principal and interest on this Note will be made on each Payment Date to
the
Noteholder of record as of the related Record Date. The “Note Balance” of a Note
as of any date of determination is equal to the Initial Note Balance thereof,
reduced by the aggregate of all amounts previously paid with respect to such
Note on account of principal and the aggregate amount of cumulative Realized
Losses allocated to such Note on all prior Payment Dates.
The
principal of, and interest on, this Note are due and payable as described in
the
Indenture, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be equal to this
Note’s pro
rata
share of
the aggregate payments on all Class N Notes as described above, and shall be
applied as between interest and principal as provided in the
Indenture.
All
principal and interest accrued on the Notes, if not previously paid, will become
finally due and payable at the Final Stated Maturity Date.
The
Notes
are subject to redemption in whole, but not in part, by the Seller on any
Payment Date on or after the Optional Redemption Date.
The
Issuer shall not be liable upon the indebtedness evidenced by the Notes except
to the extent of amounts available from the Trust which constitutes security
for
the payment of the Notes. The assets included in the Trust will be the sole
source of payments on the Class ____ Notes, and each Holder hereof, by its
acceptance of this Note, agrees that (i) such Note will be limited in right
of
payment to amounts available from the Trust as provided in the Indenture and
(ii) such Holder shall have no recourse to the Issuer, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Seller, the Servicer,
the
Master Servicer or any of their respective affiliates, or to the assets of
any
of the foregoing entities, except the assets of the Issuer pledged to secure
the
Class N Notes pursuant to the Indenture and the rights conveyed to the Issuer
under the Indenture.
No
transfer of this Note or any interest herein shall be made except in accordance
with Section 4.16 of the Indenture.
Any
payment of principal or interest payable on this Note which is punctually paid
on the applicable Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the Record Date for such Payment
Date by check mailed to such person’s address as it appears in the Note Register
on such Record Date, except for the final installment of principal and interest
payable with respect to such Note, which shall be payable as provided below.
Notwithstanding the foregoing, upon written request with appropriate
instructions by the Holder of this Note delivered to the Securities
Administrator at least five Business Days prior to the Record Date, any payment
of principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All scheduled reductions in the Note Balance of
a
Note (or one or more predecessor Notes) effected by payments of principal made
on any Payment Date shall be binding upon all Holders of this Note and of any
note issued upon the registration of transfer thereof or in exchange therefor
or
in lieu thereof, whether or not such payment is noted on such Note. The final
payment of this Note shall be payable upon presentation and surrender thereof
on
or after the Payment Date thereof at the office or agency of the Issuer
maintained by it for such purpose pursuant to Section 3.02 of the
Indenture.
Subject
to the foregoing provisions, each Note delivered under the Indenture, upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the right to unpaid principal and interest that were carried by
such
other Note.
If
an
Event of Default as defined in the Indenture shall occur and be continuing
with
respect to the Notes, the Notes may become or be declared due and payable in
the
manner and with the effect provided in the Indenture. If any such acceleration
of maturity occurs prior to the payment of the entire unpaid Note Balance of
the
Notes, the amount payable to the Holder of this Note will be equal to the sum
of
the unpaid Note Balance of the Notes, together with accrued and unpaid interest
thereon as described in the Indenture. The Indenture provides that,
notwithstanding the acceleration of the maturity of the Notes, under certain
circumstances specified therein, all amounts collected as proceeds of the Trust
securing the Notes or otherwise shall continue to be applied to payments of
principal of and interest on the Notes as if they had not been declared due
and
payable.
The
failure to pay any Class Interest Carryover Shortfall at any time when funds
are
not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under the Indenture.
The
Holder of this Note or Beneficial Owner of any interest herein shall represent
or shall be deemed to represent that either (1) it is not acquiring this Note
with Plan Assets or (2) (A) the acquisition, holding and transfer of this Note
will not give rise to a nonexempt prohibited transaction under Section 406
of
ERISA or Section 4975 of the Code and (B) this Note is rated investment grade
or
better and such person believes that this Note is properly treated as
indebtedness without substantial equity features for purposes of the DOL
Regulations, and agrees to so treat this Note. Alternatively, regardless of
the
rating of this Note, such person may provide the Indenture Trustee, the
Securities Administrator and the Owner Trustee with an Opinion of Counsel,
which
Opinion of Counsel will not be at the expense of the Issuer, the Depositor,
the
Seller, any Underwriter, the Owner Trustee, the Indenture Trustee, the
Securities Administrator, the Servicer, the Master Servicer or any successor
servicer which opines that the acquisition, holding and transfer of this Note
or
interest herein is permissible under applicable law, will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section 4975 of
the
Code and will not subject the Issuer, the Depositor, the Seller, any
Underwriter, the Owner Trustee, the Indenture Trustee, the Securities
Administrator, the Servicer, the Master Servicer or any successor servicer
to
any obligation in addition to those undertaken in the Indenture.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note may be registered on the Note Register of the Issuer.
Upon surrender for registration of transfer of, or presentation of a written
instrument of transfer for, this Note at the office or agency designated by
the
Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Securities Administrator, one or more
new
Notes of any authorized denominations and of a like aggregate initial Note
Balance, will be issued to the designated transferee or
transferees.
Prior
to
the due presentment for registration of transfer of this Note, the Issuer,
the
Indenture Trustee, the Securities Administrator and any agent of the Issuer,
the
Indenture Trustee or the Securities Administrator may treat the Person in whose
name this Note is registered as the owner of such Note (i) on the applicable
Record Date for the purpose of making payments and interest of such Note and
(ii) on any other date for all other purposes whatsoever, as the owner hereof,
whether or not this Note be overdue, and neither the Issuer, the Indenture
Trustee, the Securities Administrator nor any such agent of any of them shall
be
affected by notice to the contrary.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuer and
the
rights of the Holders of the Notes under the Indenture at any time by the Issuer
and the Holders of a majority of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the aggregate Note Balance of the Notes on behalf
of
the Holders of all the Notes, to waive any past Default under the Indenture
and
its consequences. Any such waiver by the Holder, at the time of the giving
thereof, of this Note (or any one or more predecessor Notes) shall bind the
Holder of every Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent
or
waiver is made upon such Note. The Indenture also permits the Issuer, the
Indenture Trustee and the Securities Administrator to amend or waive certain
terms and conditions set forth in the Indenture without the consent of the
Holders of the Notes issued thereunder.
Initially,
this Note will be registered in the name of Cede & Co. as nominee of DTC,
acting in its capacity as the Depository for this Note. This Note will be
delivered by the clearing agency in denominations as provided in the Indenture
and subject to certain limitations therein set forth. This Note is exchangeable
for a like aggregate initial Note Balance of Notes of different authorized
denominations, as requested by the Holder surrendering same.
Unless
the Certificate of Authentication hereon has been executed by the Securities
Administrator by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
AS
PROVIDED IN THE INDENTURE, THIS NOTE AND THE INDENTURE CREATING THIS NOTE SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF
NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
IN
WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed
by
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee.
Dated:
September ___, 2006
RENAISSANCE
HOME EQUITY LOAN TRUST 2006-3
BY:
WILMINGTON TRUST COMPANY, not in its individual capacity but solely
in its
capacity as Owner Trustee
|
|
By:
|
|
Authorized
Signatory
|
INDENTURE
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Notes referred to in the within-mentioned Indenture.
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
|
|
By:
|
|
Authorized
Signatory
|
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of the Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN
COM
|
--
|
as
tenants in common
|
TEN
ENT
|
--
|
as
tenants by the entireties
|
JT
TEN
|
--
|
as
joint tenants with right of survivorship and not as tenants in
common
|
UNIF
GIFT MIN ACT
|
--
|
____________
Custodian
|
(Cust) (Minor)
|
||
under
Uniform Gifts to Minor Act
|
||
(State)
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
(Please
print or typewrite name and address, including zip code, of
assignee)
the
within Note and all rights thereunder, and hereby irrevocably constitutes and
appoints
attorney
to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
____________________ _________________________________
Signature
Guaranteed by _________________________________
NOTICE:
The signature(s) to this assignment must correspond with the name as it appears
upon the face of the within Note in every particular, without alteration or
enlargement or any change whatsoever. Signature(s) must be guaranteed by a
commercial bank or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
Previously
filed with the Securities and Exchange Commission on September 28,
2006.
EXHIBIT
C-1
FORM
OF
INITIAL CERTIFICATION
September
___, 2006
Renaissance
Home Equity Loan Trust 2006-3
c/o
Wilmington Trust Company
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0001
Attention:
Corporate Trust Administration
|
Ocwen
Loan Servicing, LLC
0000
Xxxxxxxxxxx Xxxx,
Xxxxx
000 XxxxxxXxxx Xxxx
Xxxx
Xxxx Xxxxx, XX 00000
|
Renaissance
Mortgage Acceptance Corporation
0000
Xxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
|
HSBC
Bank USA, National Association
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Re:
|
Indenture,
dated as of September 28, 2006 among Renaissance Home Equity Loan
Trust
2006-3, as Issuer, HSBC Bank USA, National Association, as Indenture
Trustee and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Home Equity Loan Asset-Backed Notes, Series
2006-3
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 2.03 of the above-referenced
Indenture, the undersigned, as Custodian, pursuant to the Custodial Agreement,
dated as of September 28, 2006, by and among Xxxxx Fargo Bank, N.A., as
Custodian, HSBC Bank USA, National Association, as Indenture Trustee, the Seller
and the Depositor hereby certifies that as to each Mortgage Loan listed in
the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified on the attachment hereto), it has reviewed
the documents delivered to it pursuant to Section 2.03 of the Indenture and
has
determined that (i) all documents required to be delivered to it pursuant
paragraphs (i) - (v) and (vii) of Section 2.1(b) of the Mortgage Loan Sale
and
Contribution Agreement are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and have not been mutilated,
damaged, torn or otherwise physically altered and relate to such Mortgage Loans,
(iii) based on its examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule as to the information set
forth in clauses (ii) and (iii) of the definition “Mortgage Loan Schedule” set
forth in Annex A to the Indenture accurately reflects the information set forth
in the Indenture Trustee’s Mortgage File. The Custodian has made no independent
examination of such documents beyond the review specifically required in the
above-referenced Indenture. The Custodian makes no representations as to: (i)
the validity, legality, enforceability or genuineness of any such documents
contained in each or any of the Mortgage Loans identified on the Mortgage Loan
Schedule or (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Indenture.
XXXXX
FARGO BANK, N.A.,
as
Custodian
|
|
By:
|
|
Name:
|
|
Title:
|
EXHIBIT
C-2
FORM
OF
FINAL CERTIFICATION
[DATE]
Renaissance
Home Equity Loan Trust 2006-3
c/o
Wilmington Trust Company
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0001
Attention:
Corporate Trust Administration
|
Ocwen
Loan Servicing, LLC
0000
Xxxxxxxxxxx Xxxx,
Xxxxx
000 XxxxxxXxxx Xxxx
Xxxx
Xxxx Xxxxx, XX 00000
|
Renaissance
Mortgage Acceptance Corporation
0000
Xxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
|
HSBC
Bank USA, National Association
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Re:
|
Indenture,
dated as of September 28, 2006 among Renaissance Home Equity Loan
Trust
2006-3, as Issuer, HSBC Bank USA, National Association, as Indenture
Trustee and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Home Equity Loan Asset-Backed Notes, Series
2006-3
|
Ladies
and Gentlemen:
In
accordance with Section 2.03 of the above-captioned Indenture, the
undersigned, as Custodian, pursuant to the Custodial Agreement, dated as of
September 1, 2006, by and among Xxxxx Fargo Bank, N.A., as Custodian, HSBC
Bank
USA, National Association, as Indenture Trustee, the Seller and the Depositor
hereby certifies that, except
as
noted on the attachment hereto, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attachment hereto) the Custodian has reviewed the documents delivered to it
pursuant to Sections 2.1(b) (other than items listed in Section 2.1(b)(vi))
of
the Mortgage Loan Sale and Contribution Agreement and has determined that (i)
all such documents are in its possession, (ii) such documents have been reviewed
by it and have not been mutilated, damaged, torn or otherwise physically altered
and relate to such Mortgage Loan, (iii) based on its examination, and only
as to
the foregoing documents, the information set forth in clauses (ii) and (iii)
of
the Mortgage Loan Schedule respecting such Mortgage Loan is
correct.
The
Custodian has made no independent examination of such documents beyond the
review specifically required in the above-referenced Indenture. The Custodian
makes no representations as to: (i) the validity, legality, enforceability
or
genuineness of any such documents contained in each or any of the Mortgage
Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Servicing Agreement.
XXXXX
FARGO BANK, N.A.,
as
Custodian
|
|
By:
|
|
Name:
|
|
Title:
|
EXHIBIT
D
INTEREST
RATE SWAP AGREEMENT
![]() |
|
DATE:
|
28th
September 2006
|
TO:
|
Renaissance
Home Equity Loan Trust 2006-3
|
c/o
Wilmington Trust Company
|
|
0000
Xxxxx Xxxxxx Xx.
|
|
Wilmington,
DE 19890 - 0001
|
|
ATTENTION:
|
Corporate
Trust Administration
|
With
copy to:
|
Xxxxx
Fargo Bank, N.A.
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
Columbia,
MD 21045
|
|
Attention:
Client Manager - Renaissance 06-3
|
|
Tel:
000-000-0000
|
|
Fax:
000-000-0000
|
|
FROM:
|
Bank
of America, N.A.
|
Sears
Tower
|
|
000
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
|
|
Chicago,
IL 60606
|
|
OUR
REFERENCE NO:
|
13986007
|
INTERNAL
TRACKING NOS.:
|
13986007
|
The
purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the current Transaction entered into on the Trade Date specified
below (the "Transaction") between Bank of America, N.A. ("Party A") and
Renaissance
Home Equity Loan Trust 2006-3
(“Party
B”). This Agreement, which evidences a complete and binding agreement between
you and us to enter into the Transaction on the terms set forth below,
constitutes a "Confirmation" as referred to in the "Master Agreement" (as
defined below), as well as a “Schedule” as referred to in the Master
Agreement.
1.
This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement
in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) form (the "Master Agreement") but, rather, a Master
Agreement shall be deemed to have been executed by you and us on the date we
entered into the Transaction. Terms capitalized but not defined herein
except
in
the Definitions
shall
have the respective meanings attributed to them in the Indenture, dated as
of
September 1st,
2006,
among Renaissance
Home Equity Loan Trust 2006-3 as
Issuer
(the “Issuer”), HSBC Bank USA, National Association, as Indenture Trustee (the
“Indenture Trustee”) and Xxxxx Fargo Bank, N.A., as Securities Administrator
(the “Securities Administrator”) (the “Indenture”). In the event of any
inconsistency between the provisions of this Agreement and the Definitions
or
the Master Agreement, this Agreement shall prevail for purposes of the
Transaction. Each reference to a “Section” (unless specifically referencing
another agreement) will be construed as a reference to a Section of the Master
Agreement.
2.
The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
Type
of Transaction:
|
Interest
Rate Swap
|
||
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period on
Schedule I attached hereto.
|
||
Trade
Date:
|
8th
September 2006
|
||
Effective
Date:
|
25th
October 2006
|
||
Termination
Date:
|
25th
October 2009, subject to adjustment in accordance with the Modified
Following Business Day Convention
|
||
Fixed
Amount:
|
|||
Fixed
Rate Payer:
|
Party
B
|
||
Fixed
Rate Payer
|
|||
Period
End Dates:
|
The
25th
of
each Month, commencing 25th
November 2006 and ending on the Termination Date, subject to adjustment
in
accordance with the Modified Following Business Day
Convention.
|
||
Fixed
Rate Payer
|
|||
Payment
Dates:
|
Early
Payment shall be applicable. Each Fixed Rate Payer Payment Date
shall be
one Business Day prior to the related Fixed Rate Payer Period End
Date.
|
||
Fixed
Rate:
|
5.17750
per cent
|
||
Fixed
Rate Day
|
|||
Count
Fraction:
|
30/360
|
||
Floating
Amounts:
|
|||
Floating
Rate Payer:
|
Party
A
|
||
Floating
Rate Payer
|
|||
Period
End Dates:
|
The
25th
of
each Month, commencing 25th
November 2006 and ending on the Termination Date, subject to adjustment
in
accordance with the Modified Following Business Day
Convention.
|
||
Floating
Rate Payer
|
|||
Payment
Dates:
|
Early
Payment shall be applicable. Each Floating Rate Payer Payment Date
shall
be one Business Day prior to the related Floating Rate Payer Period
End
Date.
|
||
Floating
Rate for
|
|||
Initial
Calculation
|
|||
Period:
|
to
be determined
|
||
Floating
Rate Option:
|
USD-LIBOR-BBA
|
||
Designated
Maturity:
|
1
Month
|
||
Spread:
|
None
|
||
Floating
Rate Day
|
|||
Count
Fraction:
|
Actual/360
|
||
Reset
Dates:
|
The
first day of each Calculation Period
|
||
Compounding:
|
Inapplicable
|
||
Business
Days:
|
New
York
|
||
Calculation
Agent:
|
Party
A
|
3.
Provisions
Deemed Incorporated in a Schedule to the Master
Agreement:
1) The
parties agree that subparagraph (ii) of Section 2(c) of the Master Agreement
will apply to any Transaction.
2)
Termination
Provisions.
For
purposes of the Master Agreement:
(a) “Specified
Entity” is not applicable to Party A or Party B for any purpose.
(b) “Breach
of Agreement” provision of Section 5(a)(ii) and will not apply to Party A or
Party B.
(c) “Credit
Support Default” provisions of Section 5(a)(iii) will apply to Party A (if Party
A posts collateral or obtains a guarantee or other contingent agreement pursuant
to paragraph 14 below) will not apply to Party B.
(d) “Misrepresentation”
provisions of Section 5(a)(iv) will not apply to Party A or Party
B.
(e)
"Specified
Transaction" is not applicable to Party A or Party B for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to Party A or Party B.
(f) The
"Cross Default" provisions of Section 5(a)(vi) will not apply to Party A or
to
Party B.
(g) “Bankruptcy”
provision of Section 5(a)(vii)(2) will not apply to Party B.
(h) “Merger
without Assumption” provision of Section 5(a)(viii) will not apply to Party
B.
(i) The
“Credit Event Upon Merger” provisions of Section 5(b)(iv) will not apply to
Party A or Party B.
(j) The
“Automatic Early Termination” provision of Section 6(a) will not apply to Party
A or to Party B.
(k) Payments
on Early Termination. For the purpose of Section 6(e):
(i) Market
Quotation will apply.
(ii) the
Second Method will apply.
(l) “Termination
Currency” means United States Dollars.
(m)
Gross
Up.
The provisions of Section 2(d)(i)(4) and 2(d)(ii) shall not apply to Party
B and
Party B shall not be required to pay any additional amounts referred to
therein.
3)
Tax
Representations.
(a)
Payer Representations. For the purpose of Section 3(e), each of Party
A
and Party B will make the following
representations:
|
It
is not required by any applicable law, as modified by the practice
of any
relevant governmental revenue authority, of any Relevant Jurisdiction
to
make any deduction or withholding for or on account of any Tax from
any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e))
to be
made by it to the other party under this Agreement. In making this
representation, it may rely on:
|
(i) the
accuracy of any representations made by the other party pursuant to Section
3(f);
(ii) the
satisfaction of the agreement contained in Section 4(a)(iii) and the accuracy
and effectiveness of any document provided by the other party pursuant to
Section 4(a)(iii); and
(iii)
the satisfaction of the agreement of the other party contained in
Section
4(d), provided that it shall not be a breach of this representation
where
reliance is placed on clause (ii) and the other party does not deliver
a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
|
(b)
Payee Representations. For the purpose of Section 3(f), each of Party
A
and Party B make the following representations.
|
The
following representation will apply to Party A:
Party
A is a national banking association formed under the laws of the
United
States of America. Party A is a United States person for U.S. Federal
Income Tax purposes and its U.S. taxpayer identification number is
00-0000000.
|
The
following representation will apply to Party B:
Party
B is a United States person for U.S. Federal Income Tax
purposes.
|
4)
The
Master Agreement is hereby amended as follows:
The
word
“third” shall be replaced by the word “second” in the third line of Section
5(a)(i).
5)
Documents
to be Delivered.
For the
purpose of Section 4(a):
(1) Tax
forms, documents, or certificates to be delivered are:
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Party
A and
Party
B
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
(2) Other
documents to be delivered are:
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver this Agreement, any Confirmation , and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under this Agreement, such Confirmation and/or Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
Party
A
|
Annual
Report of Bank of America Corporation containing audited, consolidated
financial statements certified by independent certified public accountants
and prepared in accordance with generally accepted accounting principles
in the country in which such party is organized.
|
To
be made available on xxx.xxxxxxxxxxxxx.xxx/xxxxxxxx/
as
soon as available and in any event within 90 days after the end of
each
fiscal year of Party A.
|
Yes
|
Party
A and Party B
|
Legal
opinion from counsel for such party.
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
No
|
Party
B
|
A
duly executed copy of the Indenture.
|
Upon
the execution and receipt of such Indenture.
|
No
|
Party
B
|
Copy
of each monthly servicer report.
|
Upon
availability
|
No
|
6)
Miscellaneous.
Miscellaneous
(a)
|
Address
for Notices: For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A:
Bank
of
America, N.A.
Sears
Tower
000
Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000
Chicago,
IL 60606
Attention:
Swap Operations
Telephone
No.: 000-000-0000
Facsimile
No.: 000-000-0000
with
a
copy to:
Bank
of
America, N.A.
000
X.
Xxxxx Xx.
NC1-007-13-01
Charlotte,
North Carolina 28255
Attention:
Global Markets Trading Agreements
Facsimile
No.: 000-000-0000
(For
all
purposes)
Address
for notices or communications to Party B:
Renaissance
Home Equity Loan Trust 2006-3
c/o
Wilmington Trust Company
0000
Xxxxx Xxxxxx Xx.
Wilmington,
DE 19890 - 0001
Attention:
Corporate Trust Administration
With
copy
to:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Columbia,
MD 21045
Attention:
Client Manager - Renaissance 06-3
Tel:
000-000-0000
Fax:
000-000-0000
(For
all
purposes)
(b)
Process
Agent. For the purpose of Section 13(c):
Party
A
appoints as its
Process
Agent: Not
Applicable
The
Party
B appoints as its
Process
Agent: Not
Applicable
(c)
Offices.
The provisions of Section 10(a) will apply to this Agreement.
(d)
|
Multibranch
Party. For the purpose of
Section 10(c):
|
Party
A
is a Multibranch Party and may act through its Charlotte, North Carolina,
Chicago, Illinois, San Francisco, California, New York, New York, Boston,
Massachusetts, or such other Office as may be agreed to by the parties in
connection with a Transaction.
Party
B is not a Multibranch Party.
|
(e)
Credit
Support Document. Not
applicable for Party A or, if Party A posts collateral pursuant to a Credit
Support Annex or obtains a guarantee or other contingent agreement pursuant
to
paragraph 14 below, such Credit Support Annex, guarantee, or other contingent
agreement. The Indenture for Party B.
(f)
|
Credit
Support Provider.
|
Party
A:
Not
Applicable or, if Party A obtains a guarantee or other provider of credit
support pursuant to paragraph 14 below, such guarantee or other provider of
credit support
Party
B:
|
Not
Applicable
|
(g)
Governing
Law. The parties to this Agreement hereby agree that the law of the State of
New
York shall govern their rights and duties in whole, without regard to the
conflict of law provisions thereof other than New York General Obligations
Law
Sections 5-1401 and 5-1402.
(h)
Severability. If
any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties as
to
the subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(i) Consent
to Recording. Each party hereto consents to the monitoring or recording, at
any
time and from time to time, by the other party of any and all communications
between officers or employees of the parties, and waives any further notice
of
such monitoring or recording.
(j)
Waiver
of
Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
(k) Set-Off.
The provisions for Set-off set forth in Section 6(e) of the Master Agreement
shall not apply for purposes of this Transaction. Notwithstanding any provision
of this Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup or
otherwise withhold or suspend or condition payment or performance of any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements.
(l)
Additional
Definitional Provisions.
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise: