INDENTURE among Issuer Trust Administrator and Indenture Trustee Dated as of ________, 200_
EXHIBIT
4.3
among
[ ]
200__-[ ]
Issuer
______________________,
Trust
Administrator
and
____________________________________
Indenture
Trustee
Dated
as
of ________, 200_
TABLE
OF
CONTENTS
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
Section
1.01.
|
Definitions
|
|
Section
1.02.
|
Incorporation
by Reference of Trust Indenture Act
|
|
Section
1.03.
|
Rules
of Construction
|
ARTICLE
TWO
THE
NOTES
|
Section
2.01.
|
Form
|
|
Section
2.02.
|
Execution,
Authentication and Delivery
|
|
Section
2.03.
|
Limitation
on Transfer of Notes
|
|
Section
2.04.
|
Registration;
Registration of Transfer and Exchange
|
|
Section
2.05.
|
Mutilated,
Destroyed, Lost or Stolen Notes
|
|
Section
2.06.
|
Persons
Deemed Owners
|
|
Section
2.07.
|
Payment
of Principal and Interest
|
|
Section
2.08.
|
Cancellation
|
|
Section
2.09.
|
Release
of Collateral
|
|
Section
2.10.
|
Book-Entry
Notes
|
|
Section
2.11.
|
Notices
to Clearing Agency
|
|
Section
2.12.
|
Definitive
Notes
|
|
Section
2.13.
|
Tax
Treatment
|
ARTICLE
THREE
COVENANTS
|
Section
3.01.
|
Payment
of Principal and Interest
|
|
Section
3.02.
|
Maintenance
of Office or Agency
|
|
Section
3.03.
|
Money
for Payments to be Held in Trust
|
|
Section
3.04.
|
Existence
|
|
Section
3.05.
|
Protection
of Collateral
|
|
Section
3.06.
|
Opinions
as to Collateral
|
|
Section
3.07.
|
Performance
of Obligations
|
|
Section
3.08.
|
Negative
Covenants
|
|
Section
3.09.
|
Annual
Statement as to Compliance
|
|
Section
3.10.
|
Treatment
of Notes as Debt for Tax Purposes
|
|
Section
3.11.
|
[Reserved]
|
|
Section
3.12.
|
No
Other Business
|
|
Section
3.13.
|
No
Borrowing
|
|
Section
3.14.
|
[Reserved].
|
|
Section
3.15.
|
Guarantees,
Loans, Advances and Other Liabilities
|
|
Section
3.16.
|
Capital
Expenditures
|
|
Section
3.17.
|
Removal
of Trust Administrator
|
|
Section
3.18.
|
Restricted
Payments
|
|
Section
3.19.
|
Notice
of Events of Default
|
|
Section
3.20.
|
Further
Instruments and Acts
|
|
Section
3.21.
|
Covenants
of the Issuer
|
|
Section
3.22.
|
Representations
and Warranties of the Issuer
|
ARTICLE
FOUR
SATISFACTION
AND DISCHARGE
|
Section
4.01.
|
Satisfaction
and Discharge of Indenture
|
|
Section
4.02.
|
Application
of Trust Money
|
|
Section
4.03.
|
Repayment
of Moneys Held by Paying Agent
|
|
Section
4.04.
|
Trust
Money Received by Indenture Trustee
|
ARTICLE
FIVE
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.
|
Action
on Notes
|
|
Section
5.16.
|
Performance
and Enforcement of Certain
Obligations
|
ARTICLE
SIX
THE
INDENTURE TRUSTEE
|
Section
6.01.
|
Duties
of Indenture Trustee
|
|
Section
6.02.
|
Rights
of Indenture Trustee
|
|
Section
6.03.
|
Individual
Rights of Indenture Trustee
|
|
Section
6.04.
|
Indenture
Trustee’s Disclaimer
|
|
Section
6.05.
|
Notice
of Defaults
|
|
Section
6.06.
|
Reports
by Trust Administrator to Holders
|
|
Section
6.07.
|
Compensation
and Indemnity
|
|
Section
6.08.
|
Replacement
of Indenture Trustee
|
|
Section
6.09.
|
Successor
Indenture Trustee or Trust Administrator by Xxxxxx
|
|
Section
6.10.
|
Appointment
of Co-Indenture Trustee or Separate Indenture Trustee
|
|
Section
6.11.
|
Eligibility;
Disqualification
|
|
Section
6.12.
|
Representations
and Warranties
|
|
Section
6.13.
|
Preferential
Collection of Claims Against Issuer
|
ARTICLE
SEVEN
NOTEHOLDERS’
LISTS AND REPORTS
|
Section
7.01.
|
Note
Registrar To Furnish to the Indenture Trustee the Names and Addresses
of
Noteholders
|
|
Section
7.02.
|
Preservation
of Information; Communications to Noteholders
|
|
Section
7.03.
|
Reports
by Issuer
|
|
Section
7.04.
|
Reports
by Indenture Trustee
|
ARTICLE
EIGHT
ACCOUNTS,
DISBURSEMENTS AND RELEASES
|
Section
8.01.
|
Collection
of Money
|
|
Section
8.02.
|
Collection
Account
|
|
Section
8.03.
|
Release
of Collateral
|
ARTICLE
NINE
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
|
|
Section
9.07.
|
Opinion
of Counsel
|
ARTICLE
TEN
REDEMPTION
OF NOTES
|
Section
10.01.
|
Redemption
|
|
Section
10.02.
|
Form
of Redemption Notice
|
|
Section
10.03.
|
Notes
Payable on Applicable Redemption
Date
|
ARTICLE
ELEVEN
MISCELLANEOUS
|
Section
11.01.
|
Compliance
Certificates and Opinions, etc
|
|
Section
11.02.
|
Form
of Documents Delivered to Indenture Trustee
|
|
Section
11.03.
|
Acts
of Noteholders
|
|
Section
11.04.
|
Notices,
etc., to Indenture Trustee, Trust Administrator, Issuer and Rating
Agencies
|
|
Section
11.05.
|
Notices
to Noteholders; Waiver
|
|
Section
11.06.
|
Conflict
with Trust Indenture Act
|
|
Section
11.07.
|
Effect
of Headings and Table of Contents
|
|
Section
11.08.
|
Successors
and Assigns
|
|
Section
11.09.
|
Severability
|
|
Section
11.10.
|
Benefits
of Indenture and Consents of Noteholders
|
|
Section
11.11.
|
Legal
Holidays
|
|
Section
11.12.
|
Governing
Law
|
|
Section
11.13.
|
Counterparts
|
|
Section
11.14.
|
Recording
of Indenture
|
|
Section
11.15.
|
Trust
Obligations
|
|
Section
11.16.
|
No
Petition
|
|
Section
11.17.
|
Inspection
|
EXHIBITS
|
EXHIBIT
A
|
Forms
of Notes
|
|
EXHIBIT
B
|
Form
of ERISA Transfer Affidavit
|
This
INDENTURE, dated as of ________, 200_, is among
[ ]
200__-[ ], a Delaware statutory trust (the “Issuer”),
______________________, as Trust Administrator (the “Trust Administrator”) and
____________________________________, as indenture trustee and not in its
individual capacity (the “Indenture Trustee”).
Each
party agrees as follows for the benefit of the other party, for the equal and
ratable benefit of the Holders of the Issuer’s variable rate Notes in the
Classes specified herein (the “Notes”):
GRANTING
CLAUSE
The
Issuer hereby Grants to the Indenture Trustee at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Notes, all of the Issuer’s right,
title and interest, whether now owned or hereafter acquired, in and to: (i)
the
Trust Estate; (ii) the Issuer’s rights and benefits but none of its obligations
under the Sale and Servicing Agreement (including the Issuer’s right to cause
the Seller to repurchase Mortgage Loans from the Issuer under the circumstances
described therein); (iii) the Trust Account and the Interest Rate Cap Account
and all amounts and property in the Trust Account and the Interest Rate Cap
Account from time to time, and the Security Entitlements to all Financial Assets
credited to such accounts from time to time; (iv) all other property of the
Trust from time to time; and (v) all present and future claims, demands, causes
of action 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, including all proceeds of the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all
cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every 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, and to secure
(i) the payment of all amounts due on the Notes in accordance with their terms,
(ii) the payment of all other sums payable under the Indenture with respect
to
the Notes, and (iii) compliance with the provisions of this Indenture, all
as
provided in this Indenture.
The
Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes,
acknowledges such Xxxxx, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and agrees to perform its duties required
of it in this Indenture in accordance with its terms.
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01. Definitions.
(a)
Except
as otherwise specified herein or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes
of
this Indenture.
Act:
The
meaning specified in Section 11.03(a).
Authorized
Officer:
With
respect to the Issuer, any officer of the Owner Trustee who is authorized to
act
for the Owner Trustee in matters relating to the Issuer and who is identified
on
the list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) and, so long as the Sale and Servicing Agreement is
in
effect, any Vice President, Assistant Vice President, Trust Officer or more
senior officer of the Trust Administrator who is authorized to act for the
Trust
Administrator in matters relating to the Issuer and to be acted upon by the
Trust Administrator pursuant to the Sale and Servicing Agreement and who is
identified on the list of Authorized Officers delivered by the Trust
Administrator to the Indenture Trustee on the Closing Date (as such list may
be
modified or supplemented from time to time thereafter).
Book-Entry
Notes:
Beneficial interests in Notes designated as “Book-Entry Notes” in this
Indenture, ownership and transfers of which shall be evidenced or made through
book entries by a Clearing Agency as described in Section 2.11; provided, that
after the occurrence of a condition whereupon Definitive Notes are to be issued
to Note Owners, such Book-Entry Notes shall no longer be “Book-Entry
Notes.”
Certificate
of Trust:
The
certificate of trust of the Issuer substantially in the form of Exhibit C to
the
Trust Agreement.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act, as amended. As of the Closing Date, the Clearing Agency shall
be
The Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking, société anonyme, and any successor thereto.
Collateral:
The
meaning specified in the Granting Clause of this Indenture.
Commission:
The
Securities and Exchange Commission.
Corporate
Trust Office:
With
respect to the Indenture Trustee, the designated office of the Indenture Trustee
in the State of _________ at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at
______________________________, Attn: ________________, and which is the address
to which notices to and correspondence with the Indenture Trustee should be
directed, or at such other address as the Indenture Trustee may designate from
time to time by notice to the Holders, the Issuer and the Trust Administrator
or
the principal corporate trust office of any successor Indenture Trustee. With
respect to the Note Registrar and presentment of Notes for registration of
transfer, exchange or final payment, __________________________________________,
Attention: __________________, and for all other purposes,
________________________________, Attention: _________________.
Current
Interest:
As
defined in the Sale and Servicing Agreement.
Default:
Any
occurrence that is, or with notice or the lapse of time or both would become,
an
Event of Default.
Definitive
Notes:
The
meaning specified in Section 2.10.
Depository
Institution:
Any
depository institution or trust company, including the Indenture Trustee, that
(a) is incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short term unsecured debt obligations that are rated in the highest rating
category by each Rating Agency, or is otherwise acceptable to each Rating
Agency.
Disregarded
Entity:
An
entity that is both (a) solely owned by a REIT or Qualified REIT Subsidiary
and
(b) disregarded as an entity separate from its owner within the meaning of
Section 301.7701-2(c)(2) of the Treasury Regulations.
Eligible
Corporation:
A
domestic corporation described in section 860L(a)(2) of the Code that (i) is
not
the obligor on any debt instrument held as part of the Trust, and (ii) is not
related, within the meaning of section 860L(g), to any person who is an obligor
on any debt instrument held as part of the Trust.
Euroclear:
Euroclear SA/NV, as operator of the Euroclear System.
Event
of Default:
The
meaning specified in Section 5.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Executive
Officer:
With
respect to any corporation or limited liability company, the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Manager,
Executive Vice President, any Vice President, the Secretary or the Treasurer
of
such entity; and with respect to any partnership, any general partner
xxxxxxx.
Global
Securities:
The
meaning specified in Section 2.01(a).
Grant:
Mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey,
assign, transfer, create, and xxxxx x xxxx upon and a security interest in
and a
right of set off against, deposit, set over and confirm pursuant to this
Indenture. A Grant of the Collateral or of any other agreement or instrument
shall include all rights, powers and options (but none of the obligations)
of
the granting party thereunder, including the immediate and continuing right
to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Collateral and all other moneys payable thereunder, to give
and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name
of the granting party or otherwise, and generally to do and receive anything
that the granting party is or may be entitled to do or receive thereunder or
with respect thereto.
Holder
or
Noteholder:
A
Person in whose name a Note is registered on the Note Register.
Independent:
When
used with respect to any specified Person, that such Person (a) is in fact
independent of the Issuer, any other obligor on the Notes, the Seller and any
Affiliate of any of the foregoing Persons, (b) does not have any direct
financial interest or any material indirect financial interest in the Issuer,
any such other obligor, the Seller or any Affiliate of any of the foregoing
Persons and (c) is not connected with the Issuer, any such other obligor, the
Seller or any Affiliate of any of the foregoing Persons as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Independent
Certificate:
A
certificate or opinion to be delivered to the Indenture Trustee under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.01, made by an Independent appraiser or other expert
appointed by an Issuer Order, and such opinion or certificate shall state that
the signer has read the definition of “Independent” in this Indenture and that
the signer is Independent within the meaning thereof.
Issuer:
___________ Mortgage Investment Trust 200_-__, a Delaware statutory trust,
or
any successor and, for purposes of any provision contained herein and required
by the TIA, each other obligor on the Notes.
Issuer
Order
or
Issuer
Request:
A
written order or request signed in the name of the Issuer by any one of its
Authorized Officers and delivered to the Indenture Trustee.
Non
Priority Class Note:
As of
any date of determination, any Outstanding Note other than the related Notes
that comprise the Priority Class Notes.
Note:
Any of
the [Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4],
[Class AF-5A], [Class AF-5B], [Class AF-6], [Class MF-1], [Class MF-2], [Class
MF-3], [Class MF-4], [Class MF-5], [Class MF-6], [Class MF-7], [Class MF-8],
[Class BF], [Class 2-AV-1], [Class 2-AV-2], [Class 3-AV-1], [Class 3-AV-2],
[Class 3-AV-3], [Class 3-AV-4], [Class MV-1], [Class MV-2], [Class MV-3], [Class
MV-4], [Class MV-5], [Class MV-6], [Class MV-7], [Class MV-8], [Class BV],
[Class PF], [Class PV], [Class CF] or [Class CV] Notes issued pursuant to this
Indenture, substantially in the forms attached hereto as Exhibit A.
Note
Owner or Owner:
With
respect to a Book-Entry Note, the Person that is the beneficial owner of such
Book-Entry Note, as reflected on the books of the Clearing Agency or on the
books of a Person maintaining an account with such Clearing Agency (directly
as
a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency), and with respect to a
Definitive Note, the Person that is the registered owner of such Note as
reflected in the Note Register.
Note
Register:
The
meaning specified in Section 2.04.
Note
Registrar:
The
meaning specified in Section 2.04. The initial Note Registrar shall be the
Trust
Administrator.
Officer’s
Certificate:
A
certificate signed by any Authorized Officer of the Issuer, under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.01, and delivered to the Indenture Trustee. Unless
otherwise specified, any reference in this Indenture to an Officer’s Certificate
shall be to an Officer’s Certificate of any Authorized Officer of the
Issuer.
Outstanding:
As of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture except:
(i) Notes
theretofore cancelled by the Note Registrar or delivered to the Note Registrar
for cancellation;
(ii) Notes
the
payment for which money in the necessary amount has been theretofore deposited
with the Trust Administrator or any Paying Agent in trust for the Holders of
such Notes (provided,
however,
that if
such Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision for such notice has been made,
satisfactory to the Trust Administrator); and
(iii) Notes
in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture unless proof satisfactory to the Trust
Administrator is presented that any such Notes are held by a protected
purchaser;
provided,
that in
determining whether the Holders of the requisite Outstanding Balance of the
Notes have given any request, demand, authorization, direction, notice, consent
or waiver hereunder or under any Operative Agreement, Notes owned by the Issuer,
any other obligor upon the Notes, the Depositor, the Owner Trustee, the
Indenture Trustee, the Servicer, the Trust Administrator or any Affiliate of
any
of the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee or Trust Administrator
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that the Indenture Trustee
or
Trust Administrator has actual knowledge to be so owned shall be so disregarded
(unless such action requires the consent, waiver, request or demand of [100]%
of
the Outstanding Balance represented by a particular Class and [100]% of the
Outstanding Balance represented by such Class is registered in the name of
one
or more of the foregoing entities). Notes so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee or Trust Administrator the pledgee’s right
so to act with respect to such Notes and that the pledgee is not the Issuer,
any
other obligor upon the Notes, the Depositor, the Owner Trustee, the Indenture
Trustee, the Servicer, the Trust Administrator or any Affiliate of any of the
foregoing Persons.
Outstanding
Balance:
The
aggregate principal amount of the Notes Outstanding as of the date of
determination.
Paying
Agent:
Initially, the Trust Administrator or any other Person that meets the
eligibility standards for the Indenture Trustee specified in Section 6.11 and
is
authorized by the Issuer, in accordance with the provision of Section 3.03,
to
make payments to and distributions from the Trust Account, including payments
of
principal of or interest on the Notes on behalf of the Issuer.
Predecessor
Note:
With
respect to any particular Note, every previous Note evidencing all or a portion
of the same debt as that evidenced by such particular Note; and, for the purpose
of this definition, any Note authenticated and delivered under Section 2.04
in
lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
Priority
Class Notes:
Until
the Class Principal Amounts of the Senior Notes are reduced to zero and all
sums
payable to the Holders of the Senior Notes have been paid in full, the Senior
Notes; when the Class Principal Amounts of the Senior Notes have been reduced
to
zero and all amounts payable to the Holders of the Senior Notes have been paid
in full, (i) with respect to the Fixed Rate Notes, the [Class MF-1] Notes;
when
the Class Principal Amounts of the Senior Notes and the [Class MF-1] Notes
have
been reduced to zero and all sums payable to the Holders of such Classes have
been paid in full, the [Class MF-2] Notes; when the Class Principal Amounts
of
the Senior Notes, the [Class MF-1] Notes and the [Class MF-2] Notes have been
reduced to zero and all sums payable to the Holders of such Classes have been
paid in full, the [Class MF-3] Notes; when the Class Principal Amounts of the
Senior Notes, the [Class MF-1] Notes, the [Class MF-2] Notes and the [Class
MF-3] Notes have been reduced to zero and all sums payable to the Holders of
such Classes have been paid in full, the [Class MF-4] Notes; when the Class
Principal Amounts of the Senior Notes, the [Class MF-1] Notes, the [Class MF-2]
Notes, the [Class MF-3] Notes and the [Class MF-4] Notes have been reduced
to
zero and all sums payable to the Holders of such Classes have been paid in
full;
when the Class Principal Amounts of the Senior Notes, the [Class MF-1], the
[Class MF-2], the [Class MF-3] Notes, and the [Class MF-4] Notes, have been
reduced to zero and all sums payable to the Holders of such Classes have been
paid in full, the [Class MF-5] Notes; when the Class Principal Amounts of the
Senior Notes, the [Class MF-1] Notes, the [Class MF-2] Notes, the[Class MF-3]
Notes, the [Class MF-4] Notes and the [Class MF-5] Notes have been reduced
to
zero and all sums payable to the Holders of such Classes have been paid in
full,
the [Class MF-6] Notes; when the Class Principal Amounts of the Senior Notes,
the [Class MF-1] Notes, the [Class MF-2] Notes, the [Class MF-3] Notes, [Class
MF-4] Notes, the [Class MF-5] Notes and the [Class MF-6] Notes have been reduced
to zero and all sums payable to the Holders of such Classes have been paid
in
full, the [Class MF-7] Notes; and when the Class Principal Amounts of the Senior
Notes, the [Class MF-1] Notes, the [Class MF-2] Notes, the [Class MF-3] Notes,
the [Class MF-4] Notes, the [Class MF-5] Notes, the [Class MF-6] Notes and
the
[Class MF-7] Notes have been reduced to zero and all sums payable to the Holders
of such Classes have been paid in full, the [Class MF-8] Notes, when the Class
Principal Amounts of the Senior Notes, the [Class MF-1] Notes, the [Class MF-2]
Notes, the [Class MF-3] Notes, [Class MF-4] Notes, the [Class MF-5] Notes,
the
[Class MF-6] Notes and the [Class MF-7] Notes have been reduced to zero and
all
sums payable to the Holders of such Classes have been paid in full, the [Class
MF-8] Notes; and when the Class Principal Amounts of the Senior Notes, the
[Class MF-1] Notes, the [Class MF-2] Notes, the [Class MF-3] Notes, the [Class
MF-4] Notes, the [Class MF-5] Notes, the [Class MF-6] Notes, the [Class MF-7]
Notes and the [Class MF-8] Notes have been reduced to zero and all sums payable
to the Holders of such Classes have been paid in full, the [Class BF] Notes
and
(ii) with respect to the Adjustable Rate Notes, the [Class MV-1] Notes; when
the
Class Principal Amounts of the Senior Notes and the [Class MV-1] Notes have
been
reduced to zero and all sums payable to the Holders of such Classes have been
paid in full, the [Class MV-2] Notes; when the Class Principal Amounts of the
Senior Notes, the [Class MV-1] Notes and the [Class MV-2] Notes have been
reduced to zero and all sums payable to the Holders of such Classes have been
paid in full, the [Class MV-3] Notes; when the Class Principal Amounts of the
Senior Notes, the [Class MV-1] Notes, the [Class MV-2] Notes and the [Class
MV-3] Notes have been reduced to zero and all sums payable to the Holders of
such Classes have been paid in full, the [Class MV-4] Notes; when the Class
Principal Amounts of the Senior Notes, the [Class MV-1] Notes, the [Class MV-2]
Notes, the [Class MV-3] Notes and the [Class MV-4] Notes have been reduced
to
zero and all sums payable to the Holders of such Classes have been paid in
full;
when the Class Principal Amounts of the Senior Notes, the [Class MV-1], the
[Class MV-2], the [Class MV-3] Notes, and the [Class MV-4] Notes, have been
reduced to zero and all sums payable to the Holders of such Classes have been
paid in full, the [Class MV-5] Notes; when the Class Principal Amounts of the
Senior Notes, the [Class MV-1] Notes, the [Class MV-2] Notes, the[Class MV-3]
Notes, the [Class MV-4] Notes and the [Class MV-5] Notes have been reduced
to
zero and all sums payable to the Holders of such Classes have been paid in
full,
the [Class MV-6] Notes; when the Class Principal Amounts of the Senior Notes,
the [Class MV-1] Notes, the [Class MV-2] Notes, the [Class MV-3] Notes, [Class
MV-4] Notes, the [Class MV-5] Notes and the [Class MV-6] Notes have been reduced
to zero and all sums payable to the Holders of such Classes have been paid
in
full, the [Class MV-7] Notes; and when the Class Principal Amounts of the Senior
Notes, the [Class MV-1] Notes, the [Class MV-2] Notes, the [Class MV-3] Notes,
the [Class MV-4] Notes, the [Class MV-5] Notes, the [Class MV-6] Notes and
the
[Class MV-7] Notes have been reduced to zero and all sums payable to the Holders
of such Classes have been paid in full, the [Class MV-8] Notes; when the Class
Principal Amounts of the Senior Notes, the [Class MV-1] Notes, the [Class MV-2]
Notes, the [Class MV-3] Notes, [Class MV-4] Notes, the [Class MV-5] Notes,
the
[Class MV-6] Notes and the [Class MV-7] Notes have been reduced to zero and
all
sums payable to the Holders of such Classes have been paid in full, the [Class
MV-8] Notes; and when the Class Principal Amounts of the Senior Notes, the
[Class MV-1] Notes, the [Class MV-2] Notes, the [Class MV-3] Notes, the [Class
MV-4] Notes, the [Class MV-5] Notes, the [Class MV-6] Notes, the [Class MV-7]
Notes and the [Class MV-8] Notes have been reduced to zero and all sums payable
to the Holders of such Classes have been paid in full, the [Class BF]
Notes.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Prospective
Owner:
Each
prospective purchaser and any subsequent transferee of a Note.
Rating
Agency Condition:
With
respect to any action to which the Rating Agency Condition applies, that each
Rating Agency shall have been given [10] days (or such shorter period as is
acceptable to each Rating Agency) prior notice thereof and that each Rating
Agency shall have notified the Depositor, the Issuer and the Indenture Trustee
in writing that such action will not result in a reduction or withdrawal of
the
then current rating of the rated Notes.
Redemption
Date:
In the
case of a redemption of the Notes pursuant to Section 10.01, the Payment Date
specified by the Trust Administrator in the notice delivered pursuant to Section
10.02.
Responsible
Officer:
When
used with respect to the Indenture Trustee, any vice president, any assistant
vice president, any associate, or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom, with respect
to
a particular matter, such matter is referred because of such officer’s knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement. With respect to the
Trust Administrator, any officer in the corporate trust department or similar
group of the Trust Administrator with direct responsibility for the
administration of this Agreement and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
[Retained
Notes:
Means
those certain classes, or portions of certain classes, of Notes which, at the
time of their issuance, ________________________ or one of its qualified REIT
subsidiaries or a Disregarded Entity acquires beneficial ownership
thereof.]
Sale
and Servicing Agreement:
The
Sale and Servicing Agreement dated as of ________, 200_, among the Issuer,
IndyMac ABS, Inc., as depositor, ______________________, as seller, servicer
and
trust administrator, the Indenture Trustee, ________________________, as seller
and _____________________, as servicer, as such may be amended or supplemented
from time to time.
Senior
Notes:
Any of
the [Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4],
[Class AF-5A], [Class AF-5B], [Class AF-6], [Class 2-AV-1], [Class 2-AV-2],
[Class 3-AV-1], [Class 3-AV-2], [Class 3-AV-3] or [Class 3-AV-4]
Notes.
State:
Any one
of the 50 States of the United States of America or the District of
Columbia.
Trust:
The Delaware statutory trust known as “[
] 200__
[ ].”
Trust
Indenture Act or TIA:
The
Trust Indenture Act of 1939 as in force on the date hereof, unless otherwise
specifically provided.
(b) Except
as
otherwise specified herein or as the context may otherwise require, capitalized
terms used but not otherwise defined herein shall have the meanings assigned
to
them in the Sale and Servicing Agreement.
Section
1.02. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
“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.
(a) All
other
TIA terms used in this Indenture that are defined in the TIA, defined by TIA
reference to another statute or defined by rule of the Securities and Exchange
Commission have the respective 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;
(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;
(vii) terms
defined in the UCC and not otherwise defined herein shall have the meaning
assigned to them in the UCC; and
(viii) to
“U.S.
dollars”, “dollars”, or the sign “$” shall be construed as references to United
States dollars which are freely transferable by residents and non-residents
of
the United States of America and convertible by such persons into any other
freely convertible currency unless such transferability or convertibility is
restricted by any law or regulation of general application in which event
references to “U.S. dollars”, “dollars”, or the sign “$” shall be construed as
references to such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts in the United States of America, and “cents” shall be construed
accordingly.
ARTICLE
TWO
THE
NOTES
Section
2.01. Form.
(a)
The
Notes shall be designated as the “[ ] 200__ [ ]” The Notes, together with the
Trust Administrator’s certificate of authentication, shall be in substantially
the forms set forth in Exhibit A with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth
on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The
Definitive Notes and the global certificates (“Global Securities”) representing
the Book-Entry Notes shall be typewritten, printed, lithographed or engraved
or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
Each
Note
shall be dated the date of its authentication. The terms of the Notes set forth
in Exhibit A are part of the terms of this Indenture.
Section
2.02. Execution,
Authentication and Delivery.
The
Notes shall be executed on behalf of the Issuer by any Authorized Officer of
the
Owner Trustee. 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 Owner Trustee or the Trust Administrator 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
Trust
Administrator shall, upon Issuer Order, authenticate and deliver the Notes
for
original issue in the aggregate principal amounts with respect to each Class
as
specified below:
|
Class
|
Class
Principal Amount
|
|
[Class
AF-1A]
|
$__________
|
|
[Class
AF-1B]
|
$__________
|
|
[Class
AF-2]
|
$__________
|
|
[Class
AF-3]
|
$__________
|
|
[Class
AF-4]
|
$__________
|
|
[Class
AF-5A]
|
$__________
|
|
[Class
AF-5B]
|
$__________
|
|
[Class
AF-6]
|
$__________
|
|
[Class
MF-1]
|
$__________
|
|
[Class
MF-2]
|
$__________
|
|
[Class
MF-3]
|
$__________
|
|
[Class
MF-4]
|
$__________
|
|
[Class
MF-5]
|
$__________
|
|
[Class
MF-6]
|
$__________
|
|
[Class
MF-7]
|
$__________
|
|
[Class
MF-8]
|
$__________
|
|
[Class
BF]
|
$__________
|
|
[Class
2-AV-1]
|
$__________
|
|
[Class
2-AV-2]
|
$__________
|
|
[Class
3-AV-1]
|
$__________
|
|
[Class
3-AV-2]
|
$__________
|
|
[Class
3-AV-3]
|
$__________
|
|
[Class
3-AV-4]
|
$__________
|
|
[Class
MV-1]
|
$__________
|
|
[Class
MV-2]
|
$__________
|
|
[Class
MV-3]
|
$__________
|
|
[Class
MV-4]
|
$__________
|
|
[Class
MV-5]
|
$__________
|
|
[Class
MV-6]
|
$__________
|
|
[Class
MV-7]
|
$__________
|
|
[Class
MV-8]
|
$__________
|
|
[Class
BV]
|
$__________
|
___________________________
The
aggregate principal amounts of such Classes of Notes outstanding at any time
may
not exceed such respective amounts.
The
[Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4], [Class
AF-5A], [Class AF-5B], [Class AF-6], [Class 2-AV-1], [Class 2-AV-2], [Class
3-AV-1], [Class 3-AV-2], [Class 3-AV-3] or [Class 3-AV-4] Notes will be issued
in minimum denominations of $[25,000] and integral multiples of $[1] in excess
thereof. The [Class MF-1], [Class MF-2], [Class MF-3], [Class MF-4], [Class
MF-5], [Class MF-6], [Class MF-7], [Class MF-8], [Class BF], [Class MV-1],
[Class MV-2], [Class MV-3], [Class MV-4], [Class MV-5], [Class MV-6], [Class
MV-7], [Class MV-8] or [Class BV] Notes will be issued in minimum denominations
of $[100,000] and integral multiples of $[1] in excess thereof.
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
Trust 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. Limitation
on Transfer of Notes.
(a)
No
transfer of a Note in the form of a Definitive Note shall be made unless the
Note Registrar shall have received a representation from the transferee of
such
Note, acceptable to and in form and substance satisfactory to the Note Registrar
and the Depositor (such requirement is satisfied only by the Note Registrar’s
receipt of a transfer affidavit from the transferee substantially in the form
of
Exhibit B hereto), to the effect that such transferee (i) is not acquiring
such
note for, or with the assets of, an employee benefit plan or other retirement
arrangement that is subject to Section 406 of ERISA or to Section 4975 of the
Code or to any substantially similar law (“Similar Law”), or any entity deemed
to hold the plan assets of the foregoing (collectively, “Benefit Plans”), or
(ii) its acquisition and holding of such Notes for, or with the assets of,
a
Benefit Plan will not result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under
Prohibited Transaction Class Exemption (“PTCE”) 84-14, PTCE 90-1, PTCE 91-38,
PTCE 95-60, PTCE 96-23 or some other applicable exemption, and will not result
in a non-exempt violation of any Similar Law.
In
the
case of a Note that is a Book-Entry Note, for purposes of clauses (i) or (ii)
of
the preceding paragraph, such representations shall be deemed to have been
made
to the Note Registrar by the transferee’s acceptance of such Note that is a
Book-Entry Note (or the acceptance by a Note Holder of the beneficial interest
in such Note).
None
of
the Indenture Trustee, the Trust Administrator, the Note Registrar or the
Depositor shall have any liability to any Person for any registration of
transfer of any Note that is in fact not permitted by this Section 2.03(a)
or
for the Trust Administrator or the Paying Agent making any payments due on
such
Note to the Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the transfer was
registered by the Note Registrar in accordance with the foregoing requirements.
In addition, none of the Indenture Trustee, the Trust Administrator, the Note
Registrar or the Depositor shall be required to monitor, determine or inquire
as
to compliance with the transfer restrictions with respect to any Note in the
form of a Book-Entry Note, and none of the Indenture Trustee, the Trust
Administrator, the Note Registrar or the Depositor shall have any liability
for
transfers of Book-Entry Notes or any interests therein made in violation of
the
restrictions on transfer described in the Prospectus and this
Agreement.
In
the
event that a Note is transferred to a Person that does not meet the requirements
of this Section 2.03, such transfer shall be of no force and effect, shall
be
void ab
initio,
and
shall not operate to transfer any rights to such Person, notwithstanding any
instructions to the contrary to the Issuer, the Indenture Trustee or any
intermediary; and the Trust Administrator shall not make any payments on such
Note for as long as such Person is the Holder of such Note.
Each
Note
shall contain a legend substantially similar to the applicable legend provided
in Exhibit A hereto stating that transfer of such Notes is subject to certain
restrictions as set forth herein.
(b) Any
purported transfer of a Note (or any interest therein) not in accordance with
this Section 2.03 shall be null and void and shall not be given effect for
any
purpose hereunder.
(c) The
Trust
Administrator will not have the ability to monitor transfers of the Notes while
they are in book-entry form and will have no liability for transfers of
Book-Entry Notes in violation of any of the transfer restrictions described
in
this Section 2.03.
Section
2.04. Registration;
Registration of Transfer and Exchange.
The
Issuer shall cause the Note Registrar to keep a register (the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe and the
restrictions on transfers of the Notes set forth herein, the Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. The Trust Administrator initially shall be the “Note Registrar” for the
purpose of registering Notes and transfers of Notes as herein provided. Upon
any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If
a
Person other than the Trust Administrator is appointed by the Issuer as Note
Registrar, the Issuer will give the Indenture Trustee and the Trust
Administrator prompt written notice of the appointment of such Note Registrar
and of the location, and any change in the location, of the Note Register,
and
the Indenture Trustee shall have the right to inspect the Note Register at
all
reasonable times and to obtain copies thereof, and the Indenture Trustee shall
have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of
the
Holders of the Notes and the principal amounts and number of such
Notes.
Subject
to Section 2.03, upon surrender for registration of transfer of any Note at
the
office or agency of the Issuer to be maintained as provided in Section 3.02,
the
Issuer shall execute, and the Note Registrar shall authenticate and the
Noteholder shall be entitled to obtain from the Note Registrar, in the name
of
the designated transferee or transferees, one or more new Notes of the same
Class in any authorized denominations, of a like aggregate principal
amount.
At
the
option of the Holder, Notes may be exchanged for other Notes of the same Class
in any authorized denominations, of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute, and the Note
Registrar shall authenticate and the Noteholder shall be entitled to obtain
from
the Trust Administrator, the Notes which the Noteholder making the exchange
is
entitled to receive.
All
Notes
issued upon any registration of transfer or exchange of Notes shall be the
valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
Every
Note presented or surrendered for registration of transfer or exchange shall
be
duly endorsed by, or be accompanied by a written instrument of transfer in
form
satisfactory to the Note Registrar duly executed by, the Holder thereof or
such
Xxxxxx’s attorney duly authorized in writing, with such signature guaranteed by
an “eligible guarantor institution” meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Note Registrar in addition to, or
in substitution for, STAMP.
No
service charge shall be made to a Holder for any registration of transfer or
exchange of Notes, but the Issuer or the Note Registrar may require payment
of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than
exchanges pursuant to Section 2.05 not involving any transfer.
The
preceding provisions of this Section notwithstanding, the Issuer shall not
be
required to make and the Note Registrar need not register transfers or exchanges
of Notes selected for redemption or of any Note for a period of [15] days
preceding the due date for any payment with respect to such Note.
Section
2.05. Mutilated,
Destroyed, Lost or Stolen Notes.
If (i)
any mutilated Note is surrendered to the Trust Administrator, or the Trust
Administrator receives evidence to its satisfaction of the destruction, loss
or
theft of any Note, and (ii) there is delivered to the Trust Administrator such
security or indemnity as may be required by it to hold the Issuer and the Trust
Administrator harmless, then, in the absence of actual notice to the Issuer,
the
Note Registrar or the Trust Administrator that such Note has been acquired
by a
protected purchaser, and upon certification provided by the Holder of such
Note
that the requirements of Section 8-405 of the Relevant UCC are met, the Issuer
shall execute, and upon its request the Note Registrar 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, or shall have been
called for redemption, instead of issuing a replacement Note, the Issuer may
pay
such destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date 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 bona fide purchaser of the original Note
in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Note Registrar 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
protected 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 or the Trust Administrator in connection
therewith.
Upon
the
issuance of any replacement Note under this Section, the Issuer, the Trust
Administrator or the Note Registrar 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 Trust Administrator) connected
therewith.
Every
replacement Note issued pursuant to this Section in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note 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 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
2.06. Persons
Deemed Owners.
Prior
to due presentment for registration of transfer of any Note, the Issuer, the
Trust Administrator, the Indenture Trustee and any agent of the Issuer, the
Trust Administrator or the Indenture Trustee may treat the Person in whose
name
any Note is registered (as of the day of determination) as the owner of 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 none of the Issuer, the Trust Administrator, the Indenture Trustee
or any agent of the Issuer, the Trust Administrator or the Indenture Trustee
shall be affected by notice to the contrary.
Section
2.07. Payment
of Principal and Interest.
(a)
Each
Class of Notes shall accrue interest at the applicable Note Interest Rate as
set
forth in the Sale and Servicing Agreement, and such interest shall be payable
on
each Payment Date, subject to Section 3.01. Interest shall be computed on each
Class of Notes on the basis of a 360-day year and the actual number of days
elapsed in each Accrual Period. With respect to each outstanding Class of Notes,
the Trust Administrator shall determine LIBOR for each applicable Accrual Period
on the second LIBOR Business Day prior thereto, in accordance with the
provisions of the Sale and Servicing Agreement. All interest payments on each
Class of Notes shall be made in the order provided for in Section [6.02] of
the
Sale and Servicing Agreement. Any installment of interest or principal payable
on any Note shall be paid on the applicable Payment Date to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the Record
Date by check mailed first-class postage prepaid to such Person’s address as it
appears on the Note Register on such Record Date or, upon written request made
to the Note Registrar and the Paying Agent at least [five] Business Days prior
to the related Record Date, by the Holder of a Note having an initial Note
Principal Amount of not less than $[2,500,000] by wire transfer in immediately
available funds to an account specified in the request and at the expense of
such Noteholder, except that, unless Definitive Notes have been issued pursuant
to Section 2.12, with respect to Notes registered on the Record Date in the
name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds
to
the account designated by such nominee, except for the final installment of
principal payable with respect to such Note on a Payment Date or on the
applicable Maturity Date for such Class of Notes (and except for the Termination
Price for any Note called for redemption pursuant to Section 10.01), which
shall
be payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.03.
(b) The
principal of the Notes shall be payable in installments on each Payment Date
as
provided herein and in the Notes, subject to Section 3.01. Notwithstanding
the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, or if the Indenture Trustee or Holders of
the
Notes representing not less than a majority of the Outstanding Balance of the
Priority Class Notes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.02. All principal payments on a Class of
Notes shall be made in accordance with Section [6.02] of the Sale and Servicing
Agreement. The Trust Administrator shall notify the Person in whose name a
Note
is registered at the close of business on the Record Date preceding the Payment
Date on which the Issuer expects that the final installment of principal of
and
interest on such Note will be paid. Such notice shall be mailed or transmitted
by facsimile no later than [five] Business Days prior to such final Payment
Date
and shall specify that such final installment 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 payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.02.
Section
2.08. Cancellation.
All
Notes surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Trust Administrator, be
delivered to the Trust Administrator and shall be promptly cancelled by the
Trust Administrator. The Issuer may at any time deliver to the Note Registrar
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 Trust Administrator. No Notes
shall
be authenticated in lieu of or in exchange for any Notes cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Notes may be held or disposed of by the Note Registrar in accordance with its
standard retention or disposal policy as in effect at the time unless the Issuer
shall direct by an Issuer Order that they be destroyed or returned to it;
provided, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Trust Administrator.
Section
2.09. Release
of Collateral.
(a)
Except
as otherwise provided in subsections (b) and (c) of this Section and the terms
of the Operative Agreements, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt by it of an Issuer Request
accompanied by (i) an Officer’s Certificate, (ii) an Opinion of Counsel, (iii)
certificates in accordance with TIA Sections 314(c) and (d)(1), and (iv)(A)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
or
(B) an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates; provided that
no such Independent Certificates or Opinion of Counsel in lieu of such
Independent Certificates shall be necessary in respect of property released
from
the lien of the Indenture in accordance with the provisions hereof if such
property consists solely of cash.
(b) The
Servicer, on behalf of the Issuer, shall be entitled to obtain a release from
the lien of this Indenture for any Mortgage Loan and the Mortgaged Property
at
any time (i) after a payment by the Seller or the Issuer of the Purchase Price
of the Mortgage Loan, (ii) after a Qualifying Substitute Mortgage Loan is
substituted for such Mortgage Loan and payment of the Substitution Amount,
if
any, (iii) after liquidation of the Mortgage Loan in accordance with the Sale
and Servicing Agreement and the deposit of all Liquidation Proceeds and
Insurance Proceeds in the Collection Account, (iv) upon the termination of
a
Mortgage Loan (due to, among other causes, a prepayment in full of the Mortgage
Loan and sale or other disposition of the related Mortgaged Property), or (v)
as
contemplated by Section [9.02] of the Sale and Servicing Agreement.
Section
2.10. Book-Entry
Notes.
Each
Class of Notes will be issued in the form of typewritten Notes or Global
Securities representing the Book-Entry Notes, to be delivered to, or to the
Trust Administrator as custodian for, the initial Clearing Agency, by, or on
behalf of, the Issuer. The Book-Entry Notes shall be registered initially on
the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Owner thereof will receive a Definitive Note representing such
Note Owner’s interest in such Note, except as provided in Section 2.12. Unless
and until definitive, fully registered Notes (the “Definitive Notes”) have been
issued to such Note Owners pursuant to Section 2.12:
(i) the
provisions of this Section shall be in full force and effect;
(ii) the
Note
Registrar, the Indenture Trustee and the Trust Administrator shall be entitled
to deal with the Clearing Agency 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 Note Owners;
(iii) to
the
extent that the provisions of this Section conflict with any other provisions
of
this Indenture, the provisions of this Section shall control;
(iv) the
rights of Note Owners shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such Note
Owners and the Clearing Agency and/or the Clearing Agency Participants pursuant
to the Note Depository Agreement. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the Note Registrar shall not register any transfer
of
a beneficial interest in a Book-Entry Note; and the initial Clearing Agency
will
make book entry transfers among the Clearing Agency Participants and receive
and
transmit payments of principal of and interest on the Notes to such Clearing
Agency 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
Outstanding Balance of the Notes (or the Priority Class Notes), the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it
has received instructions to such effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required percentage
of
the beneficial interest in the Notes and has delivered such instructions to
the
Indenture Trustee or the Trust Administrator, as the case may be.
Section
2.11. Notices
to Clearing Agency.
Whenever a notice or other communication to the Noteholders is required under
this Indenture, unless and until Definitive Notes shall have been issued to
such
Note Owners pursuant to Section 2.12, the Trust Administrator shall give all
such notices and communications specified herein to be given to Holders of
the
Notes to the Clearing Agency, and shall have no obligation to such Note
Owners.
Section
2.12. Definitive
Notes.
If (i)
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book-Entry Notes and the Depositor is
unable to locate a qualified successor or (ii) after the occurrence of an Event
of Default hereunder, Note Owners of the Book-Entry Notes representing
beneficial interests aggregating not less than [50]% of the Outstanding Balance
of the Book-Entry Notes advise the Clearing Agency and the Trust Administrator
in writing that the continuation of a book entry system through the Clearing
Agency is no longer in the best interests of such Note Owners, then the Trust
Administrator shall direct the Clearing Agency to notify all Note Owners and
the
Note Registrar of the occurrence of any such event and of the availability
of
Definitive Notes for their Book-Entry Notes. Upon surrender to the Note
Registrar of the typewritten Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by registration instructions, the Issuer shall
execute and the Note Registrar shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer,
the
Note Registrar, Trust Administrator or the Indenture Trustee 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 Indenture Trustee and the Trust Administrator shall
recognize the Holders of the Definitive Notes as Noteholders.
Section
2.13. 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 (other than the Retained Notes) will qualify
as indebtedness of the Issuer secured by the Collateral. The Issuer, by entering
into this Indenture, and each Noteholder, by its acceptance of a Note (and
each
Note 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 of the Issuer.
ARTICLE
THREE
COVENANTS
Section
3.01. Payment
of Principal and Interest.
The
Issuer will duly and punctually pay (or will cause to be duly and punctually
paid) the principal of and interest on the Notes in accordance with the terms
of
the Notes and this Indenture. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal shall
be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
The
Notes
shall be non-recourse obligations of the Issuer and shall be limited in right
of
payment to amounts available from the Collateral as provided in this Indenture.
The Issuer shall not otherwise be liable for payments of the Notes, and none
of
the owners, agents, officers, directors, employees, or successors or assigns
of
the Issuer shall be personally liable for any amounts payable, or performance
due, under the Notes or this Indenture. If any other provision of this Indenture
shall be deemed to conflict with the provisions of this Section 3.01, the
provisions of this Section 3.01 shall control.
Section
3.02. Maintenance
of Office or Agency.
The
Note Registrar on behalf of the Issuer will maintain an office or agency where
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.
Section
3.03. Money
for Payments to be Held in Trust.
As
provided in Section 8.02, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Collection
Account pursuant to Article [VI] of the Sale and Servicing Agreement shall
be
made on behalf of the Issuer by the Trust Administrator or by another Paying
Agent, and no amounts so withdrawn from the such account for payments of Notes
shall be paid over to the Issuer except as provided in this
Section.
On
or
before the Business Day preceding each Payment Date, the Issuer shall deposit
or
cause to be deposited in the Collection Account an aggregate sum sufficient
to
pay the amounts then becoming due under the Notes, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless the Paying Agent
is
the Trust Administrator) shall promptly notify the Trust Administrator of its
action or failure so to act.
The
Trust
Administrator is hereby appointed the initial Paying Agent. Any successor Paying
Agent shall be appointed by Issuer Order with written notice thereof to the
Indenture Trustee and the Trust Administrator. Any Paying Agent appointed by
the
Issuer shall be a Person that would be eligible to be Trust Administrator
hereunder as provided in Section 6.11. The Issuer shall not appoint any Paying
Agent (other than the Trust Administrator) which is not, at the time of such
appointment, a Depository Institution.
The
Issuer shall cause each Paying Agent other than the Trust Administrator, as
initial Paying Agent, to execute and deliver to the Indenture Trustee and the
Trust Administrator an instrument in which such Paying Agent shall agree with
the Indenture Trustee (and if the Trust Administrator acts as Paying Agent,
it
hereby so agrees), subject to the provisions of this Section, 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 in the
Sale
and Servicing Agreement and pay such sums to such Persons as herein
provided;
(ii) give
the
Indenture Trustee notice of any default by the Issuer of which the Paying Agent
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 such default, upon the written request of
the
Indenture Trustee, forthwith pay to the Trust Administrator all sums so held
in
trust by such Paying Agent;
(iv) immediately
resign as a Paying Agent and forthwith pay to the Trust 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; and
(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; provided,
however,
that
with respect to reporting requirements applicable to original issue discount,
the accrual of market discount or the amortization of premium on the Notes,
the
Depositor shall have first provided the calculations pertaining thereto and
the
amount of any resulting withholding taxes to the Trust Administrator and the
Paying Agent.
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 Order direct
any
Paying Agent to pay to the Trust Administrator all sums held in trust by such
Paying Agent, such sums to be held by the Trust 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 Trust 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
Trust
Administrator or any Paying Agent in trust for the payment of any amount due
with respect to any Note and remaining unclaimed for two years 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 Trust Administrator or such Paying Agent with respect to such trust money
shall thereupon cease; provided,
however,
that the
Trust 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 a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York (including, but not limited to, The
Wall Street Journal),
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
Trust Administrator or Paying Agent shall 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 moneys due and payable but not
claimed is determinable from the records of the Trust Administrator or of any
Paying Agent, at the last address of record for each such Holder).
Section
3.04. Existence.
(a)
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 Collateral and each other instrument or agreement included in the
Collateral.
(b) Any
successor to the Owner Trustee appointed pursuant to Section 9.03 of the Trust
Agreement shall be the successor Owner Trustee under this Indenture without
the
execution or filing of any paper, instrument or further act to be done on the
part of the parties hereto.
(c) Upon
any
consolidation or merger of or other succession to the Owner Trustee, the Person
succeeding to the Owner Trustee under the Trust Agreement may exercise every
right and power of the Owner Trustee under this Indenture with the same effect
as if such Person had been named as the Owner Trustee herein.
Section
3.05. Protection
of Collateral.
The
Issuer will from time to time execute, deliver and file 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) enforce
any rights with respect to the Collateral; or
(iv) preserve
and defend title to the Collateral and the rights of the Indenture Trustee
and
the Noteholders in such Collateral against the claims of all persons and
parties.
The
Issuer hereby designates the Trust Administrator as its agent and attorney
in
fact to prepare and file amendments, if a Responsible Officer of the Trust
Administrator has actual knowledge of a need to amend, and to prepare and file
continuation statements or other instruments required to be filed pursuant
to
this Section 3.05 and hereby authorizes it to file in any filing office such
amendment to financing statement, or continuation statement required to be
filed
pursuant to this Section 3.05.
Section
3.06. Opinions
as to Collateral.
On the
Closing Date, the Issuer shall furnish to the Trust Administrator and the
Indenture Trustee an Opinion of Counsel to the effect that either, 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 make
effective the lien and security interest of this Indenture, or stating that,
in
the opinion of such counsel, no such action is necessary to make such lien
and
security interest effective.
Section
3.07. Performance
of Obligations.
(a)
The
Issuer will not take any action and will use its best efforts not to permit
any
action to be taken by others that would release any Person from any of such
Person’s material covenants or obligations under any instrument or agreement
included in the Collateral or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly provided
in this Indenture, the Sale and Servicing Agreement or such other instrument
or
agreement.
(b) 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. Initially, the Issuer has contracted
with the Trust Administrator pursuant to the Sale and Servicing Agreement to
assist the Issuer in performing certain of its duties under this
Indenture.
(c) The
Issuer will punctually perform and observe all of its obligations and agreements
contained in this Indenture, the Operative Agreements and in the instruments
and
agreements included in the Collateral, including but not limited to filing
or
causing to be filed all financing statements and continuation statements
required to be filed by the terms of this Indenture and the Sale and Servicing
Agreement in accordance with and within the time periods provided for herein
and
therein.
(d) If
a
responsible officer of the Owner Trustee shall have written notice or actual
knowledge of the occurrence of an Event of Default under the Sale and Servicing
Agreement, the Issuer shall promptly notify the Indenture Trustee and each
Rating Agency thereof.
(e) As
promptly as possible after the giving of notice of termination to the Servicer
of the Servicer’s rights and powers pursuant to Section [8.01(a)] of the Sale
and Servicing Agreement, the Indenture Trustee shall proceed in accordance
with
Section [8.01] and [8.02] of the Sale and Servicing Agreement
(f) Without
derogating from the absolute nature of the assignment granted to the Indenture
Trustee under this Indenture or the rights of the Indenture Trustee hereunder,
the Issuer agrees (i) that it will not, without the prior written consent of
the
Holders of at least a majority in Outstanding Balance of the Notes affected
thereby, amend, modify, waive, supplement, terminate or surrender, or agree
to
any amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral or the Operative Agreements (except to the extent
otherwise provided in any such Operative Agreement), or waive timely performance
or observance by the Trust Administrator, Servicer or the Depositor of its
respective duties under the Sale and Servicing Agreement; and (ii) that any
such
amendment shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, payments that are required to be made for
the
benefit of the Noteholders or (B) reduce the aforesaid percentage of the Notes
that is required to consent to any such amendment, without the consent of the
Holders of all the Outstanding Notes affected thereby. If any such amendment,
modification, supplement or waiver shall be so consented to by such Holders,
the
Issuer agrees, promptly following a request by the Indenture Trustee to do
so,
to execute and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as the Indenture Trustee may deem
necessary or appropriate in the circumstances.
Section
3.08. Negative
Covenants.
So long
as any Notes are Outstanding, the Issuer shall not:
(i) except
as
expressly permitted by this Indenture or the Sale and Servicing Agreement,
sell,
transfer, exchange or otherwise dispose of any of the properties or assets
of
the Issuer, including those included in the Collateral;
(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
Collateral;
(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 Collateral
or any part thereof or any interest therein or the proceeds thereof (other
than
tax liens, mechanics’ liens and other liens that arise by operation of law, in
each case with respect to any Collateral and arising solely as a result of
an
action or omission of a Borrower or as otherwise permitted in the Sale and
Servicing Agreement) or (C) permit the lien of this Indenture not to constitute
a valid first priority (other than with respect to any such tax, mechanics’ or
other lien) or as otherwise permitted in the Sale and Servicing Agreement)
security interest in the Collateral;
(iv) dissolve
or liquidate in whole or in part or merge or consolidate with any other
Person;
(v) remove
the Trust Administrator without cause unless the Rating Agency Condition shall
have been satisfied in connection with such removal;
(vi) [take
any
other action or fail to take any action that would jeopardize the status of
the
Holder of the Ownership Certificate as a REIT, Qualified REIT Subsidiary or
Disregarded Entity under the Code or result in an imposition of tax on the
Issuer]; or
(vii) except
with the prior written consent of the Noteholders, take any action described
in
Section 5.06 of the Trust Agreement.
Section
3.09. Annual
Statement as to Compliance.
The
Issuer will deliver to the Indenture Trustee, within [120] days after the end
of
each fiscal year of the Issuer (commencing with the fiscal year 200_), an
Officer’s Certificate stating, as to the Authorized Officer signing such
Officer’s Certificate, that:
(i) a
review
of the activities of the Issuer during such year and of its performance under
this Indenture has been made under such Authorized Officer’s supervision;
and
(ii) to
the
best of such Authorized Officer’s knowledge, based on such review, the Issuer
has complied with all conditions and covenants under this Indenture throughout
such year or, if there has been a default in its compliance with any such
condition or covenant, specifying each such default known to such Authorized
Officer and the nature and status thereof.
Section
3.10. Treatment
of Notes as Debt for Tax Purposes.
The
Issuer shall, and shall cause the Trust Administrator and the Servicer to,
treat
the Notes as indebtedness for all federal, state and local income, single
business, and franchise tax purposes.
Section
3.11. [Reserved]
Section
3.12. No
Other Business.
The
Issuer shall not engage in any business other than financing, purchasing,
owning, selling and managing the Collateral in the manner contemplated by this
Indenture and the Operative Agreements and activities incidental
thereto.
Section
3.13. No
Borrowing.
The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness other than the Notes.
Section
3.14. [Reserved].
Section
3.15. Guarantees,
Loans, Advances and Other Liabilities.
Except
as contemplated by the Sale and Servicing Agreement or this Indenture, 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
3.16. 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
3.17. Removal
of Trust Administrator.
So long
as any Notes are Outstanding, the Issuer shall not remove the Trust
Administrator without cause unless the Issuer has received a letter from each
Rating Agency to the effect that such removal will not cause the then current
ratings on the Notes to be qualified, reduced or withdrawn.
Section
3.18. Restricted
Payments.
The
Issuer shall not, directly or indirectly, (i) pay any dividend or make any
payment (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,
the
Issuer may make, or cause to be made, payments and distributions as contemplated
by, and to the extent funds are available for such purpose under, the Sale
and
Servicing Agreement, this Indenture or the Trust Agreement. The Issuer will
not,
directly or indirectly, make payments to or from the Collection Account except
in accordance with this Indenture and the Operative Agreements.
Section
3.19. Notice
of Events of Default.
The
Issuer shall promptly, and in no event more than [three] Business Days following
such event, give the Indenture Trustee, Trust Administrator and each Rating
Agency written notice of each Event of Default hereunder, and each default
on
the part of the Trust Administrator, Servicer or the Depositor of its
obligations under the Sale and Servicing Agreement, to the extent a responsible
officer of the Owner Trustee shall have written notice or actual knowledge
thereof.
Section
3.20. Further
Instruments and Acts.
Upon
request of the Indenture Trustee or the Trust 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
3.21. Covenants
of the Issuer.
All
covenants of the Issuer in this Indenture are covenants of the Issuer and are
not covenants of the Owner Trustee in its individual capacity. The Owner Trustee
is, and any successor Owner Trustee under the Trust Agreement will be, entering
into this Indenture on behalf of the Issuer solely as Owner Trustee under the
Trust Agreement and not in its respective individual capacity, and in no case
whatsoever shall the Owner Trustee or any such successor Owner Trustee be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties or obligations of the Issuer hereunder, as to all
of
which the parties hereto agree to look solely to the property of the
Issuer.
Section
3.22. Representations
and Warranties of the Issuer.
(a)
With
respect to the Mortgage Notes, the Issuer represents and warrants
that:
(i) This
Indenture creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code (the “UCC”) in the Mortgage Notes in favor of
the Indenture Trustee, which security interest is prior to all other liens,
and
is enforceable as such against creditors of and purchasers from the
Issuer;
(ii) The
Mortgage Notes constitute “instruments” within the meaning of the applicable
UCC;
(iii) The
Issuer owns and has good title to the Mortgage Notes free and clear of any
lien,
claim or encumbrance of any Person;
(iv) The
Issuer has received all consents and approvals required by the terms of the
Mortgage Notes to the pledge of the Mortgage Notes hereunder to the Indenture
Trustee;
(v) All
original executed copies of each Mortgage Note have been or will be delivered
to
the Indenture Trustee (or its custodian), as set forth in the Sale and Servicing
Agreement;
(vi) The
Issuer has received a written acknowledgement from the Indenture Trustee (or
its
custodian) that it is holding the Mortgage Notes solely on behalf and for the
benefit of the Indenture Trustee;
(vii) 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 Mortgage Notes. The Issuer has
not
authorized the filing of and is not aware of any financing statements against
the Issuer that include a description of the collateral covering the Mortgage
Notes other than a 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;
and
(viii) None
of
the Mortgage Notes has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Indenture
Trustee.
(b) The
representations and warranties set forth in this Section 3.22 shall survive
the
Closing Date and shall not be waived.
ARTICLE
FOUR
SATISFACTION
AND DISCHARGE
Section
4.01. 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, 3.05, 3.08, 3.12 and 3.13, (v) the rights, obligations and immunities
of
the Indenture Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.07), (vi) the rights, obligations and immunities of the Trust
Administrator hereunder (including the obligations of the Trust Administrator
under Section 4.02) and (vii) the rights of Noteholders as beneficiaries hereof
with respect to the property so deposited with the Trust Administrator 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, when
either (I) the Sale and Servicing Agreement has been terminated pursuant to
Section [9.01] thereof or (II)
| (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 2.05 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 Trust Administrator for cancellation; or
(2) all
Notes
not theretofore delivered to the Trust Administrator for
cancellation
a. have
become due and payable,
b. will
become due and payable at the applicable Maturity Date within one year,
or
c. are
to be
called for redemption within one year under arrangements satisfactory to the
Trust Administrator for the giving of notice of redemption by the Trust
Administrator in the name, and at the expense, of the Issuer,
and
the
Issuer, in the case of a., b. or c. above, has irrevocably deposited or caused
to be irrevocably deposited with the Trust 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 not theretofore delivered to the Trust Administrator or Note
Registrar for cancellation when due to the Maturity Date or Redemption Date
(if
the Notes are called for redemption pursuant to Section 10.01 hereof), as the
case may be;
| (B) |
the
Issuer has paid or caused to be paid all other sums payable hereunder
by
the Issuer;
|
| (C) |
the
Issuer has delivered to the Indenture Trustee an Officer’s Certificate and
an Opinion of Counsel (at the Issuer’s expense) and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of
certified public accountants, each meeting the applicable requirements
of
Section 11.01 hereof and, subject to Section 11.02 hereof, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Notes
have been complied with; and
|
| (D) |
the
Issuer has delivered to each Rating Agency notice of such satisfaction
and
discharge.
|
Section
4.02. Application
of Trust Money.
All
moneys deposited with the Trust Administrator pursuant to Sections 3.03 and
4.01
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, as the Trust Administrator may determine, to the
Holders of the particular Notes for the payment or redemption of which such
moneys have been deposited with the Trust Administrator, of all sums due and
to
become due thereon for principal and interest; but such moneys need not be
segregated from other funds except to the extent required herein or in the
Sale
and Servicing Agreement or required by law.
Section
4.03. Repayment
of Moneys Held by Paying Agent.
In
connection with the satisfaction and discharge of this Indenture with respect
to
the Notes, all moneys then held by any Paying Agent other than the Trust
Administrator under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Trust Administrator to be
held
and applied according to Section 3.03 and thereupon such Paying Agent shall
be
released from all further liability with respect to such moneys.
Section
4.04. Trust
Money Received by Indenture Trustee.
If the
Indenture Trustee receives any moneys in respect of the Collateral (other than
with respect to any amounts in respect of any payments or reimbursements of
fees, expenses or indemnity amounts properly owing to the Indenture Trustee
pursuant to the terms of any of the Operative Agreements), the Indenture Trustee
shall remit promptly such funds to the Trust Administrator.
ARTICLE
FIVE
REMEDIES
Section
5.01. Events
of Default.
“Event
of Default”, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) Default
for one month or more in the payment of any Current Interest on the Notes when
the same becomes due and payable under Section [6.02] of the Sale and Servicing
Agreement;
(ii) failure
to pay the entire principal of any Note when the same becomes due and payable
under the Sale and Servicing Agreement or on the applicable Maturity
Date;
(iii) failure
to observe or perform any covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in the observance
or
performance of which is elsewhere in this Section specifically dealt with),
or
any representation or warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in connection herewith
proving to have been incorrect in any material respect as of the time when
the
same shall have been made, and such default shall continue or not be cured,
or
the circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured, for
a
period of [30] days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer and
the
Indenture Trustee by the Holders of at least [25]% of the Outstanding Balance
of
the Notes, a written notice specifying such default or incorrect representation
or warranty and requiring it to be remedied and stating that such notice is
a
notice of Default hereunder;
(iv) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of the Issuer or any substantial part of the Collateral
in
an involuntary case under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of
the Issuer or for any substantial part of the Collateral, or ordering the
winding up or liquidation of the Issuer’s affairs, and such decree or order
shall remain unstayed and in effect for a period of [60] consecutive
days;
(v) [the
receipt of notice from the Holder of the Ownership Certificate to the Indenture
Trustee of such Xxxxxx’s failure to qualify as a REIT, a Qualified REIT
Subsidiary or a Disregarded Entity]; or
(vi) the
commencement by the Issuer of a voluntary case under any applicable federal
or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or
the consent by the Issuer to the entry of an order for relief in an involuntary
case under any such law, or the consent by the Issuer to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part
of
the Collateral, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay its debts
as
such debts become due, or the taking of any action by the Issuer in furtherance
of any of the foregoing.
The
Issuer shall deliver to the Indenture Trustee, within [five] days after the
occurrence thereof, written notice in the form of an Officer’s Certificate of
any event which with the giving of notice and the lapse of time would become
an
Event of Default under clause (iii), its status and what action the Issuer
is
taking or proposes to take with respect thereto.
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 may, or shall, at the direction of the Holders of Notes
representing not less than a majority of the Outstanding Balance of the Priority
Class Notes, declare all the Notes to be immediately due and payable, by a
notice in writing to the Issuer (and to the Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of
such
Notes, together with accrued and unpaid interest on the Notes through the date
of acceleration, shall become immediately due and payable.
At
any
time after such declaration of acceleration of maturity has been made and before
a judgment or decree for payment of the money due has been obtained by the
Indenture Trustee as hereinafter in this Article Five provided, the Holders
of
Notes representing a majority of the Outstanding Balance of the Priority Class
Notes, by written notice to the Issuer and the Indenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the
Issuer has paid or deposited with the Trust Administrator a sum sufficient
to
pay:
| (A) |
all
payments of principal of and interest on all affected Priority Class
Notes
and all other amounts that would then be due hereunder or upon such
Notes
if the Event of Default giving rise to such acceleration had not occurred;
and
|
| (B) |
all
sums paid or advanced by the Indenture Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel;
and
|
(ii) all
Events of Default, other than the nonpayment of the principal 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.
The
Holders of Non Priority Class Notes shall have no right to exercise any
Noteholders’ rights referred to in this Article Five, except to the extent
expressly provided herein.
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 Current
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 any Note when the same becomes due and payable on the
applicable Maturity Date, the Issuer will, upon demand of the Indenture Trustee,
pay to the Trust Administrator, for the benefit of the Holders of the Notes,
the
whole amount then due and payable on such Notes for principal and interest,
with
interest on the overdue principal and, to the extent payment at such rate of
interest shall be legally enforceable, on overdue installments of interest
at
the rate borne by the Notes and, in addition thereto, pay to the Indenture
Trustee 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 its 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, 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 upon such Notes and collect in the manner provided by law
out
of the property of the Issuer upon such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) If
an
Event of Default occurs and is continuing, the Indenture Trustee may, in its
discretion, or shall, at the direction of the Holders of Priority Class Notes
representing not less than a majority of the Outstanding Balance thereof, as
more particularly provided in Section 5.04, proceed to protect and enforce
its
rights and the rights of the Noteholders, by such appropriate Proceedings as
the
Indenture Trustee shall deem most effective 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 Collateral,
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, or 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, 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 and each predecessor Indenture Trustee, 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 each predecessor
Indenture Trustee, 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 moneys 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 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 Trust Administrator and, in such event or in the event that the Indenture
Trustee shall consent to the making of payments directly to such Noteholders,
to
pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred by it or its agents, and all advances made,
by
the Indenture Trustee and each predecessor Indenture Trustee except as a result
of negligence or bad faith.
(e) Nothing
herein contained shall be deemed to authorize the Indenture Trustee 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
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, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the ratable benefit of
the
Holders of the Notes.
(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, the Indenture Trustee
may, and at the direction of Holders of Priority Class Notes representing a
majority of the Outstanding Balance thereof shall, do one or more of the
following (subject to Section 5.05):
(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
moneys adjudged due;
(ii) institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture with respect to the Collateral;
(iii) exercise
any remedies of a secured party under the Relevant 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 any Collateral following
an Event of Default, other than an Event of Default described in Section
5.01(a)(i) or (ii), unless (A) the Holders of [100]% of the Outstanding Balance
of the Notes consent thereto or (B) the proceeds of such sale or liquidation
distributable to the Noteholders 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, based on information provided by the Trust
Administrator, that the Collateral will not continue to provide sufficient
funds
for the payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of Holders of [66-2/3]% of the Outstanding Balance
of the Notes. In determining such sufficiency or insufficiency with respect
to
clauses (B) and (C), the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to
the
sufficiency of the Collateral for such purpose.
(b) If
the
Indenture Trustee collects any money or property pursuant to this Article Five,
it shall pay out the money or property in the following order:
first:
to the
Indenture Trustee, for any costs or expenses, including any reasonable
out-of-pocket attorneys’ fees, incurred by it in connection with the enforcement
of the remedies provided for in this Article Five and for any other unpaid
amounts due to the Indenture Trustee hereunder, to the Trust Administrator
for
any amounts due and owing to it under the Sale and Servicing Agreement and
to
the Owner Trustee, to the extent of any fees and expenses due and owing to
it
(including pursuant to Section 7.03 of the Trust Agreement) and for any other
unpaid amounts due to the Owner Trustee under the Sale and Servicing
Agreement;
second:
to the
Servicer for any Servicing Fees then due and unpaid and any unreimbursed
Advances and other servicing advances;
third:
to the
Notes, all accrued and unpaid interest thereon and amounts in respect of
principal according to the priorities set forth in Section [6.02] of the Sale
and Servicing Agreement; provided,
however,
that
accrued and unpaid interest shall be paid to Noteholders of each Class of Notes
before any payments in respect of principal; and
fourth:
to the
Owner Trustee or its Paying Agent for any amounts to be distributed to the
Holder of the Ownership Certificate.
The
Trust
Administrator may fix a record date and payment date for any payment to
Noteholders pursuant to this Section. At least [15] days before such record
date, the Issuer shall mail to each Noteholder and the Indenture Trustee 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, but need not, elect to
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 the Indenture Trustee shall
take
such desire into account when determining whether or not to maintain possession
of the Collateral. In determining whether to maintain possession of the
Collateral, the Indenture Trustee may, but need not, obtain and rely upon an
opinion (at the expense of the Issuer) 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 Collateral for such
purpose.
Section
5.06. Limitation
of Suits.
Other
than as otherwise expressly provided herein in the case of an Event of Default,
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:
(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 Outstanding Balance of the Notes have
made
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, 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
Outstanding Balance 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.
In
the
event the Indenture Trustee shall receive conflicting or inconsistent requests
and indemnity from two or more groups of Holders of Notes, each representing
less than a majority of the Outstanding Balance of the Notes, the Indenture
Trustee shall take the action requested by the Holders of the largest percentage
in Outstanding Balance of the Notes, notwithstanding any other provisions of
this Indenture.
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 (or, in the case
of redemption, on or after the Redemption Date) 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
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 Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or Event
of
Default or an acquiescence therein. Every right and remedy given by this Article
Five 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.
Except
as otherwise provided in Section 5.02, the Holders of a majority of the
Outstanding Balance of the 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) subject
to the express terms of Section 5.04, 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 Outstanding Balance of the Notes;
(iii) if
the
conditions set forth in Section 5.05 have been satisfied and the Indenture
Trustee elects to retain the Collateral pursuant to such Section, then any
direction to the Indenture Trustee by Holders of Notes representing less than
[100]% of the Outstanding Balance of the Notes to sell or liquidate the
Collateral shall be of no force and effect; and
(iv) the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction.
Notwithstanding
the rights of the Noteholders set forth in this Section, subject to Section
6.01(g), the Indenture Trustee need not take any action that it determines
might
involve it in liability or might materially adversely affect the rights of
any
Noteholders not consenting to such action.
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, the Holders of Notes of not less than a majority of the
Outstanding Balance of the Notes may waive, in writing, any past Default or
Event of Default and its consequences except a Default (a) in 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 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 Default or impair any right consequent thereto.
Upon
any
such waiver, such Default shall cease to exist and be deemed to have been cured
and not to have occurred, and 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 Default
or
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 a Note by such Xxxxxx’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 for any action
taken, suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to (a) any suit instituted
by
the Indenture Trustee, (b) any suit instituted by any Noteholder, or group
of
Noteholders, in each case holding in the aggregate more than [10]% of the
Outstanding Balance 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
(or,
in the case of redemption, on or after the Redemption Date).
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
will not hinder, delay or impede the execution of any power herein granted
to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section
5.15. 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 Collateral or upon any of the assets of the Issuer.
Any
money or property collected by the Indenture Trustee and remitted to the Trust
Administrator shall be applied by the Trust Administrator in accordance with
Section 5.04(b).
Section
5.16. Performance
and Enforcement of Certain Obligations.
(a)
Promptly
following a request from the Indenture Trustee to do so, the Issuer shall take
all such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by the Seller, the Depositor, the Trust
Administrator or the Servicer, as applicable, of each of their obligations
to
the Issuer under or in connection with the Sale and Servicing Agreement, and
to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Sale and Servicing Agreement,
including the transmission of notices of default on the part of the Seller,
the
Depositor, the Trust Administrator or the Servicer, as applicable, under the
Sale and Servicing Agreement and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller, the
Depositor, the Trust Administrator or the Servicer of each of their applicable
obligations under the Sale and Servicing Agreement.
(b) If
an
Event of Default has occurred and is continuing, the Indenture Trustee may,
and
at the direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Holders of a majority of the Outstanding
Balance of the Priority Class Notes shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Depositor, the Trust
Administrator or the Servicer under or in connection with the Sale and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Seller, the Depositor or the Servicer, of
each
of their applicable obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Sale and Servicing Agreement, and any right of the Issuer to take such action
shall be suspended.
ARTICLE
SIX
THE
INDENTURE TRUSTEE
Section
6.01. Duties
of Indenture Trustee.
(a)
If an
Event of Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its 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) the
Indenture Trustee undertakes to perform such duties and only such duties as
are
specifically set forth in this Indenture and shall not be liable except for
the
performance of such duties and obligations as are specifically set forth in
this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in
the
absence of bad faith on its part, the Indenture Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee and
on
their face conforming to the requirements of this Indenture; however, the
Indenture Trustee shall examine the certificates and opinions to determine
whether or not they conform on their face to the requirements of this
Indenture.
(c) The
Indenture Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, its own willful misconduct or its
own
bad faith, except that:
(i) this
paragraph does not limit the effect of paragraph (a) of this
Section;
(ii) the
Indenture Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts;
(iii) the
Indenture Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with this Indenture or upon a
direction received by it from the requisite Noteholders pursuant to Article
Five; and
(iv) the
Indenture Trustee shall not be required to take notice or be deemed to have
notice or knowledge of (a) any failure by the Issuer to comply with its
obligations hereunder or in the Operative Agreements or (b) any Default or
Event
of Default, unless a Responsible Officer of the Indenture Trustee assigned
to
and working in its corporate trust department obtains actual knowledge of such
Default or Event of Default or shall have received written notice thereof.
In
the absence of such actual knowledge or notice, the Indenture Trustee may
conclusively assume that there is no Default or Event of Default.
(d) Every
provision of this Indenture that in any way relates to the Indenture Trustee
is
subject to the provisions of this Section.
(e) The
Indenture Trustee shall not be liable for indebtedness evidenced by or arising
under any of the Operative Agreements, including principal of or interest on
the
Notes, or interest on any money received by it except as the Indenture Trustee
may agree in writing with the Issuer.
(f) Money
held in trust by the Indenture Trustee need not be segregated from other funds
except to the extent required by law or the terms of this Indenture or the
Sale
and Servicing Agreement.
(g) No
provision of this Indenture shall require the Indenture Trustee to expend,
advance 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 adequate indemnity against such risk or liability is not
reasonably assured to it provided,
however,
that the
Indenture Trustee shall not refuse or fail to perform any of its duties
hereunder solely as a result of nonpayment of its normal fees and
expenses.
(h) Every
provision of this Indenture or any Operative Agreement relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section, Section 6.02 and to the
provisions of the TIA.
(i) The
Indenture Trustee shall execute and deliver the Sale and Servicing Agreement
and
perform its duties thereunder.
(j) The
Indenture Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Collateral, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Indenture Trustee is a party, except as expressly provided (i) in accordance
with the powers granted to and the authority conferred upon the Indenture
Trustee pursuant to this Agreement or any other Operative Agreement, and (ii)
in
accordance with any document or instruction delivered to the Indenture Trustee
pursuant to the terms of this Agreement; and no implied duties or obligations
shall be read into this Agreement or any Operative Agreement against the
Indenture Trustee. The Indenture Trustee agrees that it will, at the cost and
expense of the Issuer, promptly take all action as may be necessary to discharge
any liens on any part of the Collateral that result from actions by, or claims
against itself (in its individual capacity, and not in the capacity of Indenture
Trustee) that are not related to the administration of the
Collateral.
(k) Neither
the Indenture Trustee nor the Trust Administrator shall have any liability
or
responsibility for the acts or omissions of the other Person, it being
understood that this Indenture shall not be construed to render them agents
of
one another.
(l) In
order
to comply with its duties under the USA Patriot Act of 2001, the Indenture
Trustee shall obtain and verify certain information and documentation from
the
other parties to this Indenture including, but not limited to, each such party’s
name, address, and other identifying information.
Section
6.02. Rights
of Indenture Trustee.
(a)
The
Indenture Trustee may rely on any document believed by it to be genuine and
to
have been signed or presented by the proper person. The Indenture Trustee need
not investigate any fact or matter stated in the document.
(b) Before
the Indenture Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel, which shall not be at the expense of
the
Indenture Trustee. The Indenture Trustee shall not be liable for any action
it
takes or omits to take in good faith in reliance on an Officer’s Certificate or
Opinion of Counsel. The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture or in any Operative Agreement
shall not be construed as a duty and the Indenture Trustee shall not be
answerable for other than its negligence or willful misconduct in the
performance of such act.
(c) The
Indenture Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys or
a
custodian or nominee.
(d) The
Indenture Trustee shall not 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, that the Indenture Trustee’s conduct does not constitute willful
misconduct, negligence or bad faith.
(e) The
Indenture Trustee may consult with counsel, and any Opinion of Counsel with
respect to legal matters relating to this Indenture, any Operative Agreement
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 in good
faith and in accordance with any Opinion of Counsel of such
counsel.
(f) The
permissive rights of the Indenture Trustee enumerated herein shall not be
construed as duties.
Section
6.03. Individual
Rights of Indenture Trustee.
The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co registrar or co paying agent may do the same with
like
rights. However, the Indenture Trustee must comply with Section
6.11.
Section
6.04. Indenture
Trustee’s Disclaimer.
The
Indenture Trustee shall not be responsible for and makes no representation
as to
the validity or adequacy of any of the Operative Agreements or the Notes or
the
sufficiency of the Collateral; 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 or the Servicer in this Indenture, any Operative
Agreement or in any other document issued in connection with the sale of the
Notes or in the Notes.
Section
6.05. Notice
of Defaults.
If a
Default occurs and is continuing and if a Responsible Officer of the Indenture
Trustee has actual knowledge thereof, the Indenture Trustee shall give prompt
written notice thereof to each Noteholder.
Section
6.06. Reports
by Trust Administrator to Holders.
The
Trust Administrator shall deliver to each Noteholder such information with
respect to the Notes as may be required to enable such holder to prepare its
federal and state income tax returns and shall file such information returns
with the Internal Revenue Service with respect to payments or accruals of
interest on the Notes as are required to be filed under the Code or applicable
Treasury Regulations.
Section
6.07. Compensation
and Indemnity.
The
Indenture Trustee shall be entitled, as compensation for its services, a fee
to
be paid by the Servicer as provided in a separate agreement between such
parties. The Indenture Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Indenture Trustee and any
co-trustee shall be reimbursed on behalf of the Issuer from funds in the
Collection Account, as provided in the Sale and Servicing Agreement, for all
reasonable ordinary out of pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services (as
provided in the Sale and Servicing Agreement). Reimbursable expenses under
this
Section shall include the reasonable compensation and expenses, disbursements
and advances of the Indenture Trustee’s agents, counsel, accountants and
experts. The Issuer shall indemnify the Indenture Trustee, any co-trustee and
their respective employees, directors and agents, as provided in the Sale and
Servicing Agreement and from funds in the Collection Account, against any and
all claim, loss, liability or expense (including attorneys’ fees) incurred by it
in connection with the administration of this trust and the performance of
its
duties hereunder or under any Operative Agreement. The Indenture Trustee or
co-trustee, as applicable, shall notify the Issuer and the Trust Administrator
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee or the co-trustee, as applicable, to so notify the Issuer and the Trust
Administrator shall not relieve the Issuer or the Trust Administrator of its
obligations hereunder. The Issuer shall defend any such claim, and the Indenture
Trustee and any co-trustee may have separate counsel and the fees and expenses
of such counsel shall be payable on behalf of the Issuer from funds in the
Collection Account. The Issuer shall not be required to reimburse any expense
or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee or any co-trustee, as applicable, through the Indenture Trustee’s or
co-trustee’s, as the case may be, own willful misconduct, negligence or bad
faith.
The
Issuer’s obligations to the Indenture Trustee and any co-trustee pursuant to
this Section shall survive the resignation or removal of the Indenture Trustee
and the termination of discharge of this Indenture. When the Indenture Trustee
or any co-trustee incurs expenses after the occurrence of a Default specified
in
Section 5.01(iv) or (vi) 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.
No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section. The
Indenture Trustee may resign at any time by giving [30] days’ written notice
thereof to the Depositor, the Issuer, each Noteholder and each Rating Agency.
As
a condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Indenture Trustee
shall provide (x) written notice to the Depositor of any successor pursuant
to
this Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to the resignation of the Indenture Trustee. The Issuer
shall remove the Indenture Trustee if:
(i) the
Indenture Trustee fails to comply with Section 6.11;
(ii) the
Indenture Trustee is adjudged bankrupt or insolvent;
(iii) a
receiver or other public officer takes charge of the Indenture Trustee or its
property; or
(iv) the
Indenture Trustee otherwise becomes incapable of acting.
If
the
Indenture Trustee fails to fulfill its obligations under this Section 6.08
with
respect to notice to the Depositor or Article [XI] of the Sale and Servicing
Agreement, and such failure continues for the lesser of 10 calendar days or
such
period in which the applicable Exchange Act Report can be filed timely (without
taking into account any extensions), the Depositor may terminate the Indenture
Trustee. If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of the Indenture Trustee for any reason (the Indenture Trustee
in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee that satisfies
the
eligibility requirements of Section 6.11 and shall provide written notice to
the
Depositor of any successor pursuant to this Section.
The
resigning or removed Indenture Trustee agrees to cooperate with any successor
Indenture Trustee in effecting the termination of the resigning or removed
Indenture Trustee’s responsibilities and rights hereunder and shall promptly
provide such successor Indenture Trustee all documents and records reasonably
requested by it to enable it to assume the Indenture Trustee’s functions
hereunder.
A
successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer and shall
provide to the Depositor, in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to the resignation of the Indenture Trustee. Thereupon
the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee
to
the successor Indenture Trustee.
If
a
successor Indenture Trustee does not take office after the retiring Indenture
Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or
the
Holders of a majority in Outstanding Balance of the Notes may petition any
court
of competent jurisdiction for the appointment of a successor Indenture
Trustee.
If
the
Indenture Trustee fails to comply with Section 6.11, any Noteholder may petition
any court of competent jurisdiction for the removal of the Indenture Trustee
and
the appointment of a successor Indenture Trustee.
Section
6.09. Successor
Indenture Trustee or Trust Administrator by Xxxxxx.
(a)
If the
Indenture Trustee or Trust Administrator consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or
assets to, another corporation or banking association, as applicable, the
resulting, surviving or transferee corporation without any further act shall
be
the successor Indenture Trustee or successor Trust Administrator, as the case
may be; provided, that such corporation or banking association shall be
otherwise qualified and eligible hereunder and under any other Operative
Document. The Indenture Trustee shall provide each Rating Agency prior written
notice of any such transaction.
As a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Indenture Trustee, the Indenture Trustee shall provide (x) written notice to
the
Depositor and the Servicer of any successor pursuant to this Section and (y)
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
Indenture Trustee.
(b) In
case
at the time such successor or successors by merger, conversion or consolidation
shall succeed to the Trust Administrator, for any of the Notes which have been
authenticated by the Trust Administrator but not delivered, such successor
Trust
Administrator may adopt the certificate of authentication of any predecessor
trust administrator and deliver such Notes so authenticated; and in case at
that
time any of the Notes shall not have been authenticated, any successor Trust
Administrator may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trust Administrator; and in all such
cases such certificates shall have the full force which it is anywhere in the
Notes or in this Indenture provided that the certificate of the Trust
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 Collateral 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, or 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 Collateral, 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 and no notice to Noteholders of the appointment
of
any co-trustee or separate trustee shall be required under Section 6.08
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 Six. 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 (i) satisfy the requirements of TIA Section
310(a), (ii) have a combined capital and surplus of at least $[100,000,000]
as
set forth in its most recently published annual report of condition, (iii)
have
a long term debt rating equivalent to “A” or better by the Rating Agencies or be
otherwise acceptable to the Rating Agencies and (iv) not be an Affiliate of
the
Issuer or the Owner Trustee. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of
TIA
Section 310(b)(9); provided,
however,
that
there shall be excluded from the operation of TIA Section 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 Section
310(b)(1) are met.
Section
6.12. Representations
and Warranties.
The
Indenture Trustee hereby represents that:
(a) the
Indenture Trustee is duly organized and validly existing as a national banking
association in good standing under the laws of the United States with power
and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted;
(b) the
Indenture Trustee has the power and authority to execute and deliver this
Indenture and to carry out its terms; and the execution, delivery and
performance of this Indenture have been duly authorized by the Indenture Trustee
by all necessary corporate action;
(c) the
consummation of the transactions contemplated by this Indenture and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under the articles of organization or bylaws of the
Indenture Trustee or, to the knowledge of the Indenture Trustee, any material
agreement or other instrument to which the Indenture Trustee is a party or
by
which it is bound; and
(d) to
the
Indenture Trustee’s best knowledge, there are no proceedings or investigations
pending or threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Indenture
Trustee: (i) asserting the invalidity of this Indenture, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Indenture
or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Indenture Trustee of its obligations under, or
the
validity or enforceability of, this Indenture.
Section
6.13. Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee which has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE
SEVEN
NOTEHOLDERS’
LISTS AND REPORTS
Section
7.01. Note
Registrar To Furnish to the Indenture Trustee the Names and Addresses of
Noteholders.
The
Note Registrar will furnish or cause to be furnished to the Indenture Trustee
at
such times as the Indenture Trustee may request in writing, within [30] days
after receipt by the Note Registrar of any such request, a list in such form
as
the Indenture Trustee may reasonably require, of the names and addresses of
the
Holders of Notes as of a date not more than [10] days prior to the time such
list is furnished.
Section
7.02. Preservation
of Information; Communications to Noteholders.
(a)
The
Trust 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 Trust Administrator as provided in Section
7.01 and the names and addresses of Holders of Notes received by the Trust
Administrator in its capacity as Note Registrar. The Trust Administrator may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished. If three or more Noteholders, or one or more Holders
of a Class of Notes evidencing not less than [25]% of the Outstanding Balance
thereof (hereinafter referred to as “Applicants”), apply in writing to the Trust
Administrator or the Indenture Trustee, and such application states that the
Applicants desire to communicate with other holders with respect to their rights
under this Indenture or under the Notes, then the Trust Administrator shall,
within [five] Business Days after the receipt of such application, afford such
Applicants access, during normal business hours, to the current list of Holders.
Every Holder, by receiving and holding a Note, agrees with the Issuer, the
Indenture Trustee and the Trust Administrator that neither the Issuer, the
Indenture Trustee nor the Trust Administrator shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders under this Indenture, regardless of the source from which such
information was derived.
(b) Noteholders
may communicate pursuant to TIA Section 312(b) with other Noteholders with
respect to their rights under this Indenture or under the Notes.
(c) The
Issuer, the Indenture Trustee and the Trust Administrator shall have the
protection of TIA Section 312(c).
Section
7.03. Reports
by Issuer.
(a)
The
Issuer shall:
(i) file
with
the Indenture Trustee and the Commission in accordance with the 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. Delivery of such information, documents
and
reports to the Indenture Trustee is for informational purposes only and the
Indenture Trustee’s receipt of such reports shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Issuer’s compliance with any of its covenants
hereunder (as to which the Indenture Trustee is entitle to rely exclusively
on
Officers’ Certificates); and
(ii) supply
to
the Trust Administrator (and the Trust Administrator shall transmit by mail
to
all Noteholders described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by the Issuer pursuant
to clause (i) of this Section 7.03(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless
the Issuer otherwise determines, the fiscal year of the Issuer shall end on
December 31 of each year.
Section
7.04. Reports
by Indenture Trustee.
If
required by TIA Section 313(a), within [60] days after each March 1, beginning
with March 1, 200_, the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) a brief report dated as of such date that
complies with TIA Section 313(a). The Indenture Trustee also shall comply with
TIA Section 313(b).
A
copy of
each report at the time of its mailing to Noteholders shall be filed by the
Indenture Trustee with the Commission and each securities exchange, if any,
on
which the Notes are listed. The Issuer shall notify the Indenture Trustee if
and
when the Notes are listed on any securities exchange.
ARTICLE
EIGHT
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 (or direct such funds to the
Trust
Administrator), 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 pursuant to this Indenture. The Trust
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 Collateral, 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 Five.
Section
8.02. Collection
Account.
On each
Payment Date and Redemption Date, the Paying Agent (or, if the Trust
Administrator acts as Paying Agent, the Trust Administrator) shall distribute
all amounts on deposit in the Collection Account as provided in Sections [5.08]
and [6.02] of the Sale and Servicing Agreement. On the Closing Date and on
each
anniversary of the Closing Date, the Trust Administrator shall pay from its
own
funds the Owner Trustee’s annual fee.
Section
8.03. Release
of Collateral.
(a)
Subject
to the payment of its fees and expenses pursuant to Section 6.07, the Indenture
Trustee may, and when required by the provisions of this Indenture and the
Sale
and Servicing Agreement 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. No party relying upon an instrument executed
by
the Indenture Trustee as provided in this Article Eight 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 the Trust Administrator notifies the
Indenture Trustee in writing that there are no Notes outstanding and all sums
due to the Noteholders pursuant to the Sale and Servicing Agreement and all
fees
and expenses of the Indenture Trustee, the Servicer and the Trust Administrator
pursuant to this Indenture or any other Operative Agreement have been paid,
release any remaining portion of the Collateral that secured the Notes from
the
lien of this Indenture and the Trust Administrator shall release to the Issuer
or any other Person entitled thereto any funds then on deposit in the Trust
Account and assign or transfer any outstanding Interest Rate Cap Agreements.
The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this subsection (b) only upon receipt of an Issuer Request
accompanied by an Officer’s Certificate, an Opinion of Counsel and (if required
by the TIA) Independent Certificates in accordance with TIA Sections 314(c)
and
314(d)(1) meeting the applicable requirements of Section 11.01
hereof.
ARTICLE
NINE
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 each Rating
Agency, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, 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 Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, 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) (A)
to
cure any ambiguity, (B) to correct or supplement any provision herein or in
any
supplemental indenture that may be inconsistent with any other provisions herein
or in any supplemental indenture or to conform the provisions hereof to those
of
the Prospectus, (C) to obtain or maintain a rating for a Class of Notes from
a
nationally recognized statistical rating organization, (D) to make any other
provisions with respect to matters or questions arising under this Indenture;
provided,
however,
that no
such supplemental indenture entered into pursuant to clause (D) of this
subparagraph (v) shall adversely affect in any material respect the interests
of
any Holder not consenting thereto;
(vi) 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 Six; or
(vii) 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 supplemental indenture shall be entered into unless the Indenture Trustee
shall have received an Opinion of Counsel stating that as a result of such
supplemental indenture, the Trust will not be subject to federal income tax
as
long as an entity that qualifies as a REIT under the Code holds directly, or
indirectly through one or more Qualified REIT Subsidiaries or a Disregarded
Entity, a 100% ownership interest in the Ownership Certificate, and the
Indenture Trustee receives an Officer’s Certificate from the Holder of the
Ownership Certificate that the Holder of the Ownership Certificate either
qualifies as a REIT, a Qualified REIT Subsidiary or a Disregarded Entity under
the Code and the Holder of the Ownership Certificate holds a 100% ownership
Interest in the Ownership Certificate.]
The
Indenture Trustee 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) A
letter
from each Rating Agency addressed and delivered to the Indenture Trustee to
the
effect that any supplemental indenture entered into pursuant to this Section
9.01 will not cause the then current ratings on the Notes to be qualified,
reduced or withdrawn shall constitute conclusive evidence that such amendment
does not adversely affect in any material respect the interests of the
Noteholders.
Section
9.02. Supplemental
Indentures with Consent of Noteholders.
The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may,
with prior notice to each Rating Agency and with the consent of the Holders
of
not less than [66-2/3]% of the Outstanding Balance of the Notes, by Act of
such
Holders delivered to the Issuer and the Indenture Trustee, 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, adversely affect the interests of the
Noteholders without the consent of the Holder of each Outstanding Note affected
thereby (i) reduce in any manner the amount of, or delay the timing of, payments
in respect of any Note, (ii) alter the obligations of the Servicer to make
an
Advance or alter the servicing standards set forth in the Sale and Servicing
Agreement or the Servicing Agreement, (iii) reduce the aforesaid percentages
of
Notes the Holders of which are required to consent to any such supplemental
indenture, without the consent of the Holders of all Notes affected thereby,
or
(iv) 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 Collateral 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, subject the Trust
to federal income tax as long as an entity that qualifies as a REIT under the
Code holds directly, or indirectly through one or more Qualified REIT
Subsidiaries or Disregarded Entities, a 100% ownership interest in the Ownership
Certificate, and provided
further,
that the
Indenture Trustee receives an Officer’s Certificate from the Holder of the
Ownership Certificate that the Holder of the Ownership Certificate either
qualifies as a REIT, a Qualified REIT Subsidiary or a Disregarded Entity under
the Code and the Holder of the Ownership Certificate holds a 100% ownership
Interest in the Ownership Certificate.]
The
Indenture Trustee shall be entitled to conclusively rely on an Opinion of
Counsel as to whether or not any Notes would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Holders of
all
Notes, whether theretofore or thereafter authenticated and delivered
hereunder.
It
shall
not be necessary for any Act of Noteholders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Promptly
after the execution by the Issuer and the Indenture Trustee of any supplemental
indenture pursuant to this Section, the Issuer shall mail to the Holders of
the
Notes to which such amendment or supplemental indenture relates and each Rating
Agency a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee 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 Nine or the modification thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Section 6.02, shall be fully protected in relying upon,
in addition to the documents required under Section 11.01, an Opinion of Counsel
to the effect provided in Section 9.07. The Indenture Trustee may, but shall
not
be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee’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 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 Nine 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 Nine may, and if required by the Trust Administrator
shall, bear a notation in a form approved by the Trust Administrator as to
any
matter provided for in such supplemental indenture. If the Issuer or the Trust
Administrator shall so determine, new Notes so modified as to conform, in the
opinion of the Trust Administrator and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Trust Administrator in exchange for Outstanding
Notes.
Section
9.07. Opinion
of Counsel.
In
connection with any supplemental indenture pursuant to this Article Nine, the
Indenture Trustee shall be entitled to receive an Opinion of Counsel to the
effect that such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution of such
supplemental indenture in accordance with the relevant provisions of this
Article Nine have been met.
Nothing
in this Section shall be construed to require that any Person obtain the consent
of the Indenture Trustee to any amendment or waiver or any provision of any
document where the making of such amendment or the giving of such waiver without
obtaining the consent of the Indenture Trustee is not prohibited by this
Indenture or by the terms of the document that is the subject of the proposed
amendment or waiver.
ARTICLE
TEN
REDEMPTION
OF NOTES
Section
10.01. Redemption.
The
Notes are subject to redemption pursuant to Section [9.02] of the Sale and
Servicing Agreement. The Issuer shall furnish each Rating Agency, the Trust
Administrator and the Indenture Trustee notice of such redemption at least
[15]
days prior to such redemption. If the Notes are to be redeemed pursuant to
Section [9.02] of the Sale and Servicing Agreement,
_________________________________ or the Servicer, as applicable, shall furnish
notice of its exercise of its option to redeem the Notes to the Indenture
Trustee and the Trust Administrator not later than [15] days prior to the
applicable Redemption Date and _________________________________ or the
Servicer, as applicable, shall deposit by 10:00 A.M. New York City time on
the
applicable Redemption Date with the Trust Administrator in the Collection
Account the Termination Price of the Notes to be redeemed, whereupon all such
Notes shall be due and payable on the applicable Redemption Date upon the
furnishing of a notice complying with Section 10.02 hereof to each Holder of
the
Notes.
Section
10.02. Form
of Redemption Notice.
Notice
of redemption under Section 10.01 shall be given by the Trust Administrator
by
first class mail, postage prepaid, or by facsimile mailed or transmitted not
later than [10] days prior to the applicable Redemption Date to each Holder
of
Notes, as of the close of business on the Record Date preceding the applicable
Redemption Date, at such Holder’s address or facsimile number appearing in the
Note Register.
All
notices of redemption shall state:
(i) the
Redemption Date;
(ii) the
Termination Price; and
(iii) the
place
where such Notes are to be surrendered for payment of the Termination Price
(which shall be the office or agency of the Issuer to be maintained as provided
in Section 3.02).
Notice
of
redemption of the Notes shall be given by the Trust Administrator in the name
and at the expense of the Issuer. Failure to give notice of redemption, or
any
defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
Section
10.03. Notes
Payable on Applicable Redemption Date.
The
Notes or portions thereof to be redeemed shall, following notice of redemption
as required under Section 10.02 (in the case of redemption pursuant to Section
10.01) and remittance to the Trust Administrator of the Termination Price as
required under Section 10.01, on the applicable Redemption Date become due
and
payable at the Termination Price and (unless the Issuer shall default in the
payment of the Termination Price) no interest shall accrue on the Termination
Price for any period after the date to which accrued interest is calculated
for
purposes of calculating the Termination Price.
ARTICLE
ELEVEN
MISCELLANEOUS
Section
11.01. Compliance
Certificates and Opinions, etc.
Upon
any application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Indenture Trustee: (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, (ii) an Opinion of Counsel stating that in
the
opinion of such counsel all such conditions precedent, if any, have been
complied with, and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of this Section, 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; and
(iv) a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with.
Section
11.02. Form
of Documents Delivered to Indenture Trustee.
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, 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 such officer’s 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
Servicer, Sub-Servicer, the Depositor, the Issuer or the Trust Administrator,
stating that the information with respect to such factual matters is in the
possession of the Servicer, the Sub-Servicer, the Depositor, the Issuer or
the
Trust Administrator, 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 right to rely upon the truth and accuracy of any
statement or opinion contained in any such document as provided in Article
Six.
Section
11.03. Acts
of Noteholders.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by 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
Indenture Trustee and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the 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) conclusive in favor
of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The
fact
and date of the execution by any person of any such instrument or writing may
be
proved in any manner that the Indenture Trustee deems sufficient.
(c) The
ownership of Notes shall be proved by the Note Register.
(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 Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section
11.04. Notices,
etc., to Indenture Trustee, Trust 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 by any Noteholder or by the Issuer shall be sufficient for
every purpose hereunder if in writing and mailed by certified mail, return
receipt requested, to the Indenture Trustee at its Corporate Trust Office,
or
(ii) the
Trust
Administrator by the Indenture Trustee, 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 Trust Administrator at its Corporate Trust Office,
or
(iii) the
Issuer by the Indenture Trustee, the Trust Administrator or any Noteholder
shall
be sufficient for every purpose hereunder if in writing and mailed first class,
postage prepaid to the Issuer addressed to the address provided in the Sale
and
Servicing Agreement, or at any other address previously furnished in writing
to
the Indenture Trustee by the Issuer. The Issuer shall promptly transmit any
notice received by it from the Noteholders to the Indenture
Trustee.
Notices
required to be given to the Rating Agencies by the Issuer, the Indenture
Trustee, the Trust Administrator or the Owner Trustee shall be in writing,
personally delivered or mailed by certified mail, return receipt requested,
to
the address provided in the Sale and Servicing Agreement or such other address
as shall be designated by written notice to the other parties.
Section
11.05. 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 Holder’s address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of 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.
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 Indenture Trustee 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 Indenture Trustee 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 a Default or Event of
Default.
Section
11.06. 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 Trust Indenture Act, such required provision shall control.
The
provisions of TIA Sections 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
11.07. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
11.08. 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 in this Indenture shall bind its successors, co-trustees
and agents.
Section
11.09. Severability.
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
11.10. Benefits
of Indenture and Consents of Noteholders.
Nothing
in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the Owner Trustee
and the Noteholders, any benefit or any legal or equitable right, remedy or
claim under this Indenture. Each Noteholder and Note Owner, by acceptance of
a
Note or, in the case of a Note Owner, a beneficial interest in a Note, consents
to and agrees to be bound by the terms and conditions of this
Indenture.
Section
11.11. 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
11.12. Governing
Law.
THIS
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.13. 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
11.14. 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 (which may be counsel to the Indenture Trustee or any
other counsel reasonably acceptable to the Indenture Trustee) 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
11.15. Trust
Obligations.
(a)
No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee
in
their respective individual capacities, (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 or the Owner Trustee in
its
respective individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
respective individual capacities) 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 Articles VI, VII and VIII of the Trust
Agreement.
(b) In
addition, (i) this Indenture is executed and delivered by
_________________________, not individually or personally but solely as Owner
Trustee, in the exercise of the powers and authority conferred and vested in
it,
(ii) each of the representations, undertakings and agreements herein made on
the
part of the Issuer or the Owner Trustee is made and intended not as personal
representations, undertakings and agreements by _________________________ but
is
made and intended for the purpose for binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability on
_________________________, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the Indenture Trustee and by any Person claiming by, through
or under the Indenture Trustee, and (iv) under no circumstances shall
_________________________ 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 the Operative Agreements.
Section
11.16. No
Petition.
The
Indenture Trustee, by entering into this Indenture, and each Noteholder, by
accepting a Note, hereby covenant and agree that they will not at any time
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 Operative
Agreements; provided,
however,
nothing
contained herein shall prevent the Indenture Trustee from filing proofs of
claim.
Section
11.17. Inspection.
The
Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, 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 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 shall, and 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; provided,
further,
that the
Indenture Trustee may disclose on a confidential basis any such information
to
its agents, attorneys and auditors in connection with the performance of its
responsibilities hereunder.
IN
WITNESS WHEREOF, the Issuer, the Trust Administrator and the Indenture Trustee
have caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
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200__-[ ], as Issuer
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By:
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not
in its individual capacity but solely as Owner Trustee
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By:
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Name:
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Title:
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as
Trust Administrator
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By:
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Name:
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Title:
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________________________,
not in its individual capacity but solely as Indenture
Trustee
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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EXHIBIT
A
FORMS
OF
NOTES
[See
notes delivered at closing.]
EXHIBIT
B
FORM
OF
ERISA TRANSFER AFFIDAVIT
_______________________
date
Re:
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200__-[ ]
1. The
undersigned is the ______________________ of ______________________ (the
“Investor”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. Either
(i) the Investor is not, and on ___________ [date of transfer] will not be,
acquiring the Notes for, or with the assets of, an employee benefit plan or
other retirement arrangement that is subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or to Section 4975
of the Internal Revenue Code of 1986, as amended (or to any substantially
similar law (“Similar Law”)) or any entity deemed to hold the plan assets of the
foregoing (a “Benefit Plan”) or (ii) the Investor’s acquisition and holding of
the Notes for, or on behalf of, a Benefit Plan will not result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
which is not covered under Prohibited Transaction Class Exemption (“PTCE”)
84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or some other applicable
exemption, and will not result in a non-exempt violation of any Similar
Law.
3. The
Investor hereby acknowledges that under the terms of the Indenture among
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200__-[ ], as Issuer, ______________________, as Trust
Administrator, and ____________________________________, as Indenture Trustee,
dated as of ________, 200_, no transfer of any Note shall be permitted to be
made to any person unless the Trust Administrator has received a certificate
from such transferee in the form hereof.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20__.
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[Investor]
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By:
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Name:
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Title:
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ATTEST:
___________________________
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)
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ss.:
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COUNTY
OF___________
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)
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Personally
appeared before me the above-named ___________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be the
_________________ of the Investor, and acknowledged that he executed the same
as
his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of ___________ 20___.
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NOTARY
PUBLIC
My
commission expires the
____
day of __________, 20__.
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