NATIONAL CITY MORTGAGE CAPITAL LLC Trust Series 20____ - __ Issuer and [Name of Indenture Trustee] Indenture Trustee INDENTURE Dated as of _________ __, 200_
EXHIBIT
4.5
NATIONAL
CITY MORTGAGE CAPITAL LLC Trust
Series 20____
-
__
Issuer
and
[Name
of
Indenture Trustee]
Indenture
Trustee
__________________________________
INDENTURE
Dated
as
of _________ __, 200_
__________________________________
Mortgage
Backed Pass-Through Certificates
Series
20__-____
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions
Section
1.02. Incorporation by Reference of Trust Indenture Act
Section
1.03. Rules of Construction
ARTICLE
II
ORIGINAL
ISSUANCE OF NOTES
Section
2.01. Form
Section
2.02. Execution, Authentication and Delivery
ARTICLE
III
COVENANTS
Section
3.01. Collection of Payments With Respect to the Mortgage Loans
Section
3.02. Maintenance of Office or Agency
Section
3.03. Money For Payments to be Held In Trust; Paying Agent
Section
3.04. Existence
Section
3.05. Payment of Principal and Interest; Defaulted Interest
Section
3.06. Protection of Trust Estate
Section
3.07. Opinions as to Trust Estate
Section
3.08. Performance of Obligations; Servicing Agreement
Section
3.09. Negative Covenants
Section
3.10. Annual Statement as to Compliance
Section
3.11. Recording of Assignments
Section
3.12. Representations and Warranties Concerning the Mortgage Loans
Section
3.13. Amendments to Servicing Agreement
Section
3.14. Master Servicer as Agent and Bailee of the Mortgage Loans
Holder
Section
3.15. Investment Company Act
Section
3.16. Issuer May Consolidate, Etc
Section
3.17. Successor or Transferee
Section
3.18. No Other Business
Section
3.19. No Borrowing
Section
3.20. Guarantees, Loans, Advances and Other Liabilities
Section
3.21. Capital Expenditures
Section
3.22. [Reserved].
Section
3.23. Restricted Payments
Section
3.24. Notice of Events of Default
Section
3.25. Further Instruments and Acts
Section
3.26. Statements to Noteholders
Section
3.27. Determination of Note Interest Rate
Section
3.28. Payments Under the Note Insurance Policy
Section
3.29. Replacement Note Insurance Policy
ARTICLE
IV
THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
Section
4.01. The Notes
Section
4.02. Registration
of and Limitations On Transfer and Exchange of Notes;
Appointment
of Certificate Registrar
Section
4.03. Mutilated, Destroyed, Lost or Stolen Notes
Section
4.04. Persons Deemed Owners
Section
4.05. Cancellation
Section
4.06. Book-Entry Notes
Section
4.07. Notices to Depository
Section
4.08. Definitive Notes
Section
4.09. Tax Treatment
Section
4.10. Satisfaction and Discharge of Indenture
Section
4.11. Application of Trust Money
Section
4.12. Subrogation and Cooperation
Section
4.13. Repayment of Monies Held by Paying Agent
Section
4.14. Temporary Notes
ARTICLE
V
DEFAULT
AND REMEDIES
Section
5.01. Events of Default
Section
5.02. Acceleration of Maturity; Rescission and Annulment
Section
5.03. Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee
Section
5.04. Remedies; Priorities
Section
5.05. Optional Preservation of the Trust Estate
Section
5.06. Limitation of Suits
Section
5.07. Unconditional Rights of Noteholders to Receive Principal and
Interest
Section
5.08. Restoration of Rights and Remedies
Section
5.09. Rights and Remedies Cumulative
Section
5.10. Delay or Omission Not a Waiver
Section
5.11. Control By Noteholders
Section
5.12. Waiver of Past Defaults
Section
5.13. Undertaking for Costs
Section
5.14. Waiver of Stay or Extension Laws
Section
5.15. Sale of Trust Estate
Section
5.16. Action on Notes
Section
5.17. Performance and Enforcement of Certain Obligations
ARTICLE
VI
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 Event of Default
Section
6.06. Reports by Indenture Trustee to Holders
Section
6.07. Compensation and Indemnity
Section
6.08. Replacement of Indenture Trustee
Section
6.09. Successor Indenture Trustee by Xxxxxx
Section
6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee
Section
6.11. Eligibility; Disqualification
Section
6.12. Preferential Collection of Claims Against Issuer
Section
6.13. Representation and Warranty
Section
6.14. Directions to Indenture Trustee
Section
6.15. [ No
Consent to Certain Acts of Depositor
Section
6.16. Indenture Trustee May Own Securities
ARTICLE
VII
NOTEHOLDERS’
LISTS AND REPORTS
Section
7.01. Issuer to Furnish Indenture Trustee 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
VIII
ACCOUNTS,
DISBURSEMENTS AND RELEASES
Section
8.01. Collection of Money
Section
8.02. Trust Accounts
Section
8.03. Officer’s Certificate
Section
8.04. Termination Upon Distribution to Noteholders
Section
8.05. Release of Trust Estate
Section
8.06. Surrender of Notes Upon Final Payment
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.01. Supplemental Indentures Without Consent of Noteholders
Section
9.02. Supplemental Indentures With Consent of Noteholders
Section
9.03. Execution of Supplemental Indentures
Section
9.04. Effect of Supplemental Indenture
Section
9.05. Conformity With Trust Indenture Act
Section
9.06. Reference in Notes to Supplemental Indentures
ARTICLE
X
MISCELLANEOUS
Section
10.01. Compliance Certificates and Opinions, Etc
Section
10.02. Form of Documents Delivered to Indenture Trustee
Section
10.03. Acts of Noteholders
Section
10.04. Notices, Etc., to Indenture Trustee, Issuer, Note Insurer and Rating
Agencies
Section
10.05. Notices to Noteholders; Waiver
Section
10.06. Alternate Payment and Notice Provisions
Section
10.07. Conflict With Trust Indenture Act
Section
10.08. Effect of Headings
Section
10.09. Successors and Assigns
Section
10.10. Separability
Section
10.11. Benefits of Indenture
Section
10.12. Legal Holidays
Section
10.13. GOVERNING LAW
Section
10.14. Counterparts
Section
10.15. Recording of Indenture
Section
10.16. Issuer Obligation
Section
10.17. No Petition
Section
10.18. Inspection
Section
10.19. Authority of the Administrator
EXHIBITS
Exhibit
A
- Form
of
Notes
Appendix
A Definitions
This
Indenture, dated as of _______________, between
[National
City Mortgage Capital LLC [Mortgage] Loan Trust], Series 20__-____, a Delaware
business trust, as Issuer (the “Issuer”), and ____________________________, a
____________________________, as Indenture Trustee (the “Indenture
Trustee”),
WITNESSETH
THAT:
Each
party hereto agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Issuer’s Mortgage Backed
Pass-Through Certificates, Series _____, (the “Notes”).
GRANTING
CLAUSE
The
Issuer hereby Grants to the Indenture Trustee at the Closing Date, as trustee
for the benefit of the Holders of the Notes, all of the Issuer’s right, title
and interest in and to whether now existing or hereafter created by (a) the
Mortgage Loans and the proceeds thereof, (b) all funds on deposit in the Funding
Account, including all income from the investment and reinvestment of funds
therein, (c) all funds on deposit from time to time in the Collection Account
allocable to the Mortgage Loans excluding any investment income from such funds;
(d) all funds on deposit from time to time in the Payment Account and in all
proceeds thereof; (e) the Policy and (f) all present and future claims, demands,
causes and chooses in action in respect of any or all of the foregoing and
all
payments on or under, and all proceeds of every kind and nature whatsoever
in
respect of, any or all of the foregoing and all payments on or under, and all
proceeds of every kind and nature whatsoever in the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, checks, deposit
accounts, rights to payment of any and every kind, and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the “Trust Estate” or the “Collateral”).
The
foregoing Grant is made in trust to secure the payment of principal of and
interest on, and any other amounts owing in respect of, the Notes, equally
and
ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this
Indenture.
The
Indenture Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Xxxxx, accepts the trust under this Indenture in accordance
with the provisions hereof and agrees to perform its duties as Indenture Trustee
as required herein.
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided herein or
unless the context otherwise requires, capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms in the Definitions
attached hereto as Appendix A which is incorporated by reference herein. All
other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act (the
“TIA”), the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
“Commission”
means the Securities and Exchange Commission.
“indenture
securities” means the Notes.
“indenture
security holder” means a Noteholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Indenture Trustee.
“obligor”
on the indenture securities means the Issuer and any other obligor on the
indenture securities.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule have the meaning
assigned to them by such definitions.
Section
1.03. Rules
of Construction.
Unless
the context otherwise requires:
(i) a
term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time
to time;
(iii) “or”
is
not exclusive;
(iv) “including”
means including without limitation;
(v) words
in
the singular include the plural and words in the plural include the singular;
and
(vi) any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORIGINAL
ISSUANCE OF NOTES
Section
2.01. Form.
The
Notes, together with the Indenture Trustee’s certificate of authentication,
shall be in substantially the form 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
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 Authorized Officers executing such Notes, as evidenced by
their execution of such Notes.
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 of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
Notes
bearing the manual or facsimile signature of individuals who were at any time
Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
The
Indenture Trustee shall upon Issuer Request authenticate and deliver Notes
for
original issue in an aggregate initial principal amount of
$___________.
Each
Note
shall be dated the date of its authentication. The Notes shall be issuable
as
registered Notes and the Notes shall be issuable in the minimum initial Security
Balances of $_______ and in integral multiples of $_____ 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
Indenture Trustee 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.
ARTICLE
III
COVENANTS
Section
3.01. Collection
of Payments With Respect to the Mortgage Loans.
The
Indenture Trustee shall establish and maintain with itself a trust account
(the
“Payment Account”) in which the Indenture Trustee shall, subject to the terms of
this paragraph, deposit, on the same day as it is received from the Master
Servicer, each remittance received by the Indenture Trustee with respect to
the
Mortgage Loans. The Indenture Trustee shall make all payments of principal
of
and interest on the Notes, subject to Section 3.03 as provided in Section 3.05
herein from monies on deposit in the Payment Account.
Section
3.02. Maintenance
of Office or Agency.
The
Issuer will maintain in the [County of ______, The City of ______,] an office
or
agency where, subject to satisfaction of conditions set forth herein, Notes
may
be surrendered for registration of transfer or exchange, and where notices
and
demands to or upon the Issuer in respect of the Notes and this Indenture may
be
served. The Issuer hereby initially appoints the Indenture Trustee to serve
as
its agent for the foregoing purposes. If at any time the Issuer shall fail
to
maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may
be
made or served at the Corporate Trust Office, and the Issuer hereby appoints
the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
Section
3.03. Money
For Payments to be Held In Trust; Paying Agent.
(a)
As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Payment Account
pursuant to Section 3.01 shall be made on behalf of the Issuer by the Indenture
Trustee or by the Paying Agent, and no amounts so withdrawn from the Payment
Account for payments of Notes shall be paid over to the Issuer except as
provided in this Section 3.03.
The
Issuer will cause each Paying Agent other than the Indenture Trustee to execute
and deliver to the Indenture Trustee an instrument in which such Paying Agent
shall agree with the Indenture Trustee (and if the Indenture Trustee acts as
Paying Agent it hereby so agrees), subject to the provisions of this Section
3.03, that such Paying Agent will:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Notes in
trust for the benefit of the Persons entitled thereto until such sums shall
be
paid to such Persons or otherwise disposed of as herein provided and pay such
sums to such Persons as herein provided;
(ii) give
the
Indenture Trustee notice of any default by the Issuer of which it has actual
knowledge in the making of any payment required to be made with respect to
the
Notes;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held
in
trust by such Paying Agent;
(iv) immediately
resign as Paying Agent and forthwith pay to the Indenture Trustee 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.
The
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Request direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by
such
Paying Agent, such sums to be held by the Indenture Trustee 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 Indenture Trustee, 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
Indenture Trustee or any Paying Agent in trust for the payment of any amount
due
with respect to any Note and remaining unclaimed for one year after such amount
has become due and payable shall be discharged from such trust and be paid
to
the Issuer on Issuer Request; and the Holder of such Note shall thereafter,
as
an unsecured general creditor, look only to the Issuer for payment thereof
(but
only to the extent of the amounts so paid to the Issuer), and all liability
of
the Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense and direction of the Issuer cause to be published once, in an Authorized
Newspaper published in the English language, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer. The Indenture Trustee may also
adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Notes have been called
but
have not been surrendered for redemption or whose right to or interest in monies
due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for
each
such Holder).
Section
3.04. Existence.
The
Issuer will keep in full effect its existence, rights and franchises as a
business trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuer hereunder is or becomes, organized under the laws of any
other state or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of
such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes, the Mortgage Loans and each other instrument or agreement included in
the
Trust Estate.
Section
3.05. Payment
of Principal and Interest; Defaulted Interest.
(a)
On each
Payment Date from amounts on deposit in the Payment Account after making (x)
any
deposit to the Funding Account pursuant to Section 8.02(b) and (y) any deposits
to the Payment Account pursuant to Section 8.02(c)(ii) and Section
8.02(c)(i)(2), the Indenture Trustee shall pay to the Noteholders, the
Certificate Paying Agent, on behalf of the Certificateholders, and to other
Persons the amounts to which they are entitled as set forth below:
(i) To
the
Noteholders the sum of (a) one month’s interest at the Note Interest Rate on the
Security Balances of Notes immediately prior to such Payment Date and (b) any
previously accrued and unpaid interest for prior Payment Dates;
(ii) if
such
Payment Date is after the Funding Period, to the Noteholders, as principal
on
the Notes, the applicable Security Percentage of the Principal Collection
Distribution Amount and if such Payment Date is the first Payment Date following
the end of the Funding Period (if ending due to an Amortization Event) or the
Payment Date on which the Funding Period ends, to the Noteholders as principal
on the Notes the applicable Security Percentage of the amount deposited from
the
Funding Account in respect of Security Principal Collections;
(iii) to
the
Noteholders, as principal on the Notes, from the amount remaining on deposit
in
the Payment Account, up to the applicable Security Percentage of Liquidation
Loss Amounts for the related Collection Period;
(iv) to
the
Noteholders, as principal on the Notes, from the amount remaining on deposit
in
the Payment Account, up to the applicable Security Percentage of Carryover
Loss
Amounts;
(v) to
the
Note Insurer, in the amount of the premium for the Note Insurance Policy and
for
any Additional Note Insurance Policy;
(vi) to
the
Note Insurer, to reimburse it for prior draws made on the Note Insurance Policy
and on any Additional Note Insurance Policy (with interest thereon as provided
in the Insurance Agreement);
(vii) to
the
Noteholders, as principal on the Notes based on the Security Balances from
Security Interest Collections, up to the Special Capital Distribution Amount
for
such Payment Date;
(viii) to
the
Note Insurer, any other amounts owed to the Note Insurer pursuant to the
Insurance Agreement;
(ix)
[Reserved];
(x) to
reimburse the Administrator for expenditures made on behalf of the Issuer with
respect to the performance of its duties under the Indenture; and
(xi) any
remaining amount, to the Certificate Paying Agent, on behalf of the
Certificates.
provided,
however,
in the
event that on a Payment Date a Note Insurer Default shall have occurred and
be
continuing then the priorities of distributions described above will be adjusted
such that payments of the Certificate Distribution Amount and all other amounts
to be paid to the Certificate Paying Agent will not be paid until the full
amount of interest and principal in accordance with clauses (i), (x) and (ii)
through (iv) above that are due on the Notes on such Payment Date have been
paid
and provided,
further,
that on
the Final Scheduled Payment Date or other final Payment Date, the amount to
be
paid pursuant to clause (ii) above shall be equal to the Security Balances
of
the Securities immediately prior to such Payment Date.
On
each
Payment Date, the Certificate Paying Agent shall deposit in the Certificate
Distribution Account all amounts it received pursuant to this Section 3.05
for
the purpose of distributing such funds to the Certificateholders.
The
amounts paid to Noteholders shall be paid to each Class in accordance with
the
Class Percentage as set forth in paragraph (b) below. Interest will accrue
on
the Notes during an Interest Period on the basis of the actual number of days
in
such Interest Period and a year assumed to consist of 360 days.
[Any
installment of interest or principal, if any, payable on any Note or Certificate
that is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall, if such Holder holds Notes or Certificates of an aggregate
initial Principal Balance of at least $_________, be paid to each Holder of
record on the preceding Record Date, by wire transfer to an account specified
in
writing by such Holder reasonably satisfactory to the Indenture Trustee as
of
the preceding Record Date or in all other cases or if no such instructions
have
been delivered to the Indenture Trustee, by check to such Noteholder mailed
to
such Holder’s address as it appears in the Note Register the amount required to
be distributed to such Holder on such Payment Date pursuant to such Holder’s
Securities; provided,
however,
that
the Indenture Trustee shall not pay to such Holders any amount required to
be
withheld from a payment to such Holder by the Code.]
(b) The
principal of each Note shall be due and payable in full on the Final Scheduled
Payment Date for such Note as provided in the form of Note set forth in Exhibit
A. All principal payments on each Class of Notes shall be made to the
Noteholders of such Class entitled thereto in accordance with the Percentage
Interests represented by such Notes. Upon notice to the Indenture Trustee by
the
Issuer, the Indenture Trustee shall notify the Person in whose name a Note
is
register ed at the close of business on the Record Date preceding the Final
Scheduled Payment Date or other final Payment Date. Such notice shall be mailed
no later than five Business Days prior to such Final Scheduled Payment Date
or
other final Payment Date and shall specify that payment of the principal amount
and any interest due with respect to such Note at the Final Scheduled Payment
Date or other final Payment Date will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for such final payment.
Section
3.06. Protection
of Trust Estate.
(a)
The
Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, and will take such
other
action necessary or advisable to:
(i) maintain
or preserve the lien and security interest (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof;
(ii) perfect,
publish notice of or protect the validity of any Grant made or to be made by
this Indenture;
(iii) cause
the
Issuer to enforce any of the Mortgage Loans; or
(iv) preserve
and defend title to the Trust Estate and the rights of the Indenture Trustee
and
the Noteholders in such Trust Estate against the claims of all persons and
parties.
(b) Except
as
otherwise provided in this Indenture, the Indenture Trustee shall not remove
any
portion of the Trust Estate that consists of money or is evidenced by an
instrument, certificate or other writing from the jurisdiction in which it
was
held at the date of the most recent Opinion of Counsel delivered pursuant to
Section 3.07 (or from the jurisdiction in which it was held as described in
the
Opinion of Counsel delivered at the Closing Date pursuant to Section 3.07(a),
if
no Opinion of Counsel has yet been delivered pursuant to Section 3.07(b) unless
the Trustee shall have first received an Opinion of Counsel to the effect that
the lien and security interest created by this Indenture with respect to such
property will continue to be maintained after giving effect to such action
or
actions.
The
Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact
to
execute any financing statement, continuation statement or other instrument
required to be executed pursuant to this Section 3.06.
Section
3.07. Opinions
as to Trust Estate.
(a)
On the
Closing Date, the Issuer shall furnish to the Indenture Trustee and the Owner
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing
of
this Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the lien and security interest in the Mortgage Loans and reciting
the
details of such action, or stating that, in the opinion of such counsel, no
such
action is necessary to make such lien and security interest
effective.
(b) On
or
before ___________ in each calendar year, beginning in ____, the Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel at the expense of the
Issuer either stating that, in the opinion of such counsel, such action has
been
taken with respect to the recording, filing, rerecording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest in the Mortgage Loans and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture,
any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the lien
and
security interest in the Mortgage Loans until December 31 in the following
calendar year.
Section
3.08. Performance
of Obligations; Servicing Agreement.
(a)
The
Issuer will punctually perform and observe all of its obligations and agreements
contained in this Indenture, the Basic Documents and in the instruments and
agreements included in the Trust Estate.
(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 Administrator to assist the Issuer in performing its duties under
this
Indenture.
(c) The
Issuer will not take any action or permit any action to be taken by others
which
would release any Person from any of such Person’s covenants or obligations
under any of the documents relating to the Mortgage Loans or under any
instrument included in the Trust Estate, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Master Servicer is
expressly permitted to take in the Servicing Agreement. The Indenture Trustee,
as pledgee of the Mortgage Loans, shall be able to exercise the rights Issuer
and the Mortgage Loans holder, to direct the actions of the Master
Servicer.
(d) The
Issuer shall at all times retain an Administrator (approved by the Note Insurer
under the Administration Agreement) and may enter into contracts with other
Persons for the performance of the Issuer’s obligations hereunder, and
performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuer.
Section
3.09. Negative
Covenants.
So long
as any Notes are Outstanding, the Issuer shall not:
(i) except
as
expressly permitted by this Indenture, sell, transfer, exchange or otherwise
dispose of the Trust Estate, unless directed to do so by the Indenture
Trustee;
(ii) claim
any
credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments
under the Code) or assert any claim against any present or former Noteholder
by
reason of the payment of the taxes levied or assessed upon any part of the
Trust
Estate;
(iii)
(A)
permit the validity or effectiveness of this Indenture to be impaired, or permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the Trust Estate
or any part thereof or any interest therein or the proceeds thereof or (C)
permit the lien of this Indenture not to constitute a valid first priority
security interest in the Trust Estate; or
(iv) waive
or
impair, or fail to assert rights under, the Mortgage Loans, or impair or cause
to be impaired the Company’s or the Issuer’s interest in the Mortgage Loans, the
Mortgage Loan Purchase Agreement or in any Basic Document, if any such action
would materially and adversely affect the interests of the
Noteholders.
Section
3.10. Annual
Statement as to Compliance.
The
Servicer shall deliver to the Indenture Trustee, the Depositor and the Rating
Agencies on or before March 15 of each year, commencing in 2007, an officer’s
certificate (an “Annual Statement of Compliance”), certifying that with respect
to the period ending December 31st of the prior year: (i) the Servicer or such
Servicing Officer, as applicable, has reviewed the activities of the Servicer
during the preceding calendar year or portion thereof and its performance under
this Agreement or other applicable servicing agreement and (ii) to the best
of
the Servicer’s or such Servicing Officer’s, as applicable, knowledge, based on
such review, the Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement or other applicable
servicing agreement in all material respects throughout such year, or, if there
has been a failure to fullfill of any such duties, responsibilities or
obligations, in any material respect, specifying each such failure known to
such
Servicing Officer and the nature and status of cure provisions thereof. Copies
of any such statement shall be provided by the Indenture Trustee to any
Certificateholder and to any Person identified to the Indenture Trustee as
a
prospective transferee of a Certificate, upon request at the expense of the
requesting party, provided such statement is delivered by the Servicer to the
Indenture Trustee. In addition to the foregoing, the Servicer will, to the
extent reasonable, give any other servicing information required by the
Securities and Exchange Commission pursuant to applicable law. The Servicer
shall indemnify and hold harmless the Depositor and its officers, directors
and
Affiliates from and against any actual losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses that such Person may sustain based upon a breach
of
the Servicer’s obligations under this Section 3.20. Such Annual Statement of
Compliance shall contain no restrictions or limitations on its use. In the
event
that the Servicer has delegated any servicing responsibilities with respect
to
the Mortgage Loans serviced by it to a Sub-Servicer, the Servicer shall deliver
an officer's certificate of the Sub-Servicer as described above as to each
Sub-Servicer as and when required with respect to the Servicer.
If
the
Servicer cannot deliver the Annual Statement of Compliance by March 15th of
such
year, the Indenture Trustee, at its sole option, may permit a cure period for
the related Servicer to deliver such Annual Statement of Compliance, but in
no
event later than March 30th of such year.
Failure
of the Servicer to timely comply with this Section 3.20 shall be deemed an
Servicer Event of Termination, automatically, without notice and without any
cure period, and the Indenture Trustee may, in addition to whatever rights
the
Indenture Trustee may have under this Agreement and at law or equity or to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Servicer for
the same. This paragraph shall supercede any other provision in this Agreement
or any other agreement to the contrary
Section
3.11. Recording
of Assignments.
The
Company shall cause the to exercise its right under the Mortgage Loan Purchase
Agreement with respect to the obligation of the Seller to submit or cause to
be
submitted for recording all Assignments of Mortgages on or prior to
______________ with respect to the Initial Loans and within 60 days following
the related Deposit Date with respect to any Additional Loans.
Section
3.12. Representations
and Warranties Concerning the Mortgage Loans.
The
Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit of the
representations and warranties made by the Seller in Section [____] and Section
[____] of the Mortgage Loan Purchase Agreement concerning the Mortgage Loans
and
the right to enforce the remedies against the Seller provided in such Section
[____] or Section [____] to the same extent as though such representations
and
warranties were made directly to the Indenture Trustee.
Section
3.13. Amendments
to Servicing Agreement.
The
Issuer covenants with the Indenture Trustee that it will not enter into any
amendment or supplement to the Servicing Agreement in accordance with Section
8.01 of the Servicing Agreement without the prior written consent of the
Indenture Trustee. The Indenture Trustee, as pledgee of the Mortgage Loans,
may,
in its discretion, decline to enter into or consent to any such supplement
or
amendment if its own rights, duties or immunities shall be adversely
affected.
Section
3.14. Master
Servicer as Agent and Bailee of the Mortgage Loans Holder.
Solely
for purposes of perfection under Section 9-305 of the Uniform Commercial Code
or
other similar applicable law, rule or regulation of the state in which such
property is held by the Master Servicer, the Indenture Trustee hereby
acknowledges that the Master Servicer is acting as agent and bailee of the
Mortgage Loans holder in holding amounts on deposit in the Collection Account
pursuant to Section 3.02 of the Servicing Agreement, as well as its agent and
bailee in holding any Related Documents released to the Master Servicer pursuant
to Section 3.06(c) of the Servicing Agreement, and any other items constituting
a part of the Trust Estate which from time to time come into the possession
of
the Master Servicer. It is intended that, by the Master Servicer’s acceptance of
such agency pursuant to Section 3.02 of the Servicing Agreement, the Trustee,
as
a secured party of the Mortgage Loans, will be deemed to have possession of
such
Related Documents, such monies and such other items for purposes of Section
9-305 of the Uniform Commercial Code of the state in which such property is
held
by the Master Servicer.
Section
3.15. Investment
Company Act.
The
Issuer shall not become an “investment company” or under the “control” of an
“investment company” as such terms are defined in the Investment Company Act of
1940, as amended (or any successor or amendatory statute), and the rules and
regulations thereunder (taking into account not only the general definition
of
the term “investment company” but also any available exceptions to such general
definition); provided, however, that the Issuer shall be in compliance with
this
Section 3.15 if it shall have obtained an order exempting it from regulation
as
an “investment company” so long as it is in compliance with the conditions
imposed in such order.
Section
3.16. Issuer
May Consolidate, Etc.
(a)
The
Issuer shall not consolidate or merge with or into any other Person,
unless:
(i) the
Person (if other than the Issuer) formed by or surviving such consolidation
or
merger shall be a Person organized and existing under the laws of the United
States of America or any state or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form reasonably satisfactory to the Indenture Trustee,
the
due and punctual payment of the principal of and interest on all Notes and
to
the Certificate Paying Agent, on behalf of the Certificateholders and the
performance or observance of every agreement and covenant of this Indenture
on
the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately
after giving effect to such transaction, no Event of Default shall have occurred
and be continuing;
(iii) the
Rating Agencies shall have notified the Issuer that such transaction shall
not
cause the rating of the Notes [or the Certificates] to be reduced, suspended
or
withdrawn or to be considered by either Rating Agency to be below investment
grade without taking into account the Note Insurance Policy;
(iv) the
Issuer shall have received an Opinion of Counsel (and shall have delivered
copies thereof to the Indenture Trustee) to the effect that such transaction
will not have any material adverse tax consequence to the Issuer, any Noteholder
or any Certificateholder;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate
and an Opinion of Counsel each stating that such consolidation or merger and
such supplemental indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been complied
with (including any filing required by the Exchange Act).
(b) The
Issuer shall not convey or transfer any of its properties or assets, including
those included in the Trust Estate, to any Person, unless:
(i) the
Person that acquires by conveyance or transfer the properties and assets of
the
Issuer the conveyance or transfer of which is hereby restricted shall (A) be
a
United States citizen or a Person organized and existing under the laws of
the
United States of America or any state, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuer to
be
performed or observed, all as provided herein, (C) expressly agrees by means
of
such supplemental indenture that all right, title and interest so conveyed
or
transferred shall be subject and subordinate to the rights of Holders of the
Notes, (D) unless otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer against and from any
loss, liability or expense arising under or related to this Indenture and the
Notes and (E) expressly agrees by means of such supplemental indenture that
such
Person (or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person) required by
the
Exchange Act in connection with the Notes;
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) the
Rating Agencies shall have notified the Issuer that such transaction shall
not
cause the rating of the Notes or the Certificates to be reduced, suspended
or
withdrawn;
(iv) the
Issuer shall have received an Opinion of Counsel (and shall have delivered
copies thereof to the Indenture Trustee) to the effect that such transaction
will not have any material adverse tax consequence to the Issuer or any
Noteholder;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate
and an Opinion of Counsel each stating that such conveyance or transfer and
such
supplemental indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been complied
with (including any filing required by the Exchange Act).
Section
3.17. Successor
or Transferee.
(a)
Upon any
consolidation or merger of the Issuer in accordance with Section 3.16(a), the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer herein.
(b) Upon
a
conveyance or transfer of all the assets and properties of the Issuer pursuant
to Section 3.16(b), the Issuer will be released from every covenant and
agreement of this Indenture to be observed or performed on the part of the
Issuer with respect to the Notes immediately upon the delivery of written notice
to the Indenture Trustee of such conveyance or transfer.
Section
3.18. No
Other Business.
The
Issuer shall not engage in any business other than financing, purchasing, owning
and selling and managing the Mortgage Loans and the issuance of the Notes and
Certificates in the manner contemplated by this Indenture and the Basic
Documents and all activities incidental thereto.
Section
3.19. No
Borrowing.
The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness except for the Notes.
Section
3.20. Guarantees,
Loans, Advances and Other Liabilities.
Except
as contemplated by this Indenture or the Basic Documents, the Issuer shall
not
make any loan or advance or credit to, or guarantee (directly or indirectly
or
by an instrument having the effect of assuring another’s payment or performance
on any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or
agree contingently to do so) any stock, obligations, assets or securities of,
or
any other interest in, or make any capital contribution to, any other
Person.
Section
3.21. Capital
Expenditures.
The
Issuer shall not make any expenditure (by long- term or operating lease or
otherwise) for capital assets (either realty or personalty).
Section
3.22. [Reserved].
Section
3.23. Restricted
Payments.
The
Issuer shall not, directly or indirectly, (i) pay any dividend or make any
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, to the Owner Trustee or any owner of a
beneficial interest in the Issuer or otherwise with respect to any ownership
or
equity interest or security in or of the Issuer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or security
or (iii) set aside or otherwise segregate any amounts for any such purpose;
provided,
however,
that
the Issuer may make, or cause to be made, (x) distributions to the Owner Trustee
and the Certificateholders as contemplated by, and to the extent funds are
available for such purpose under the Trust Agreement, (y) payments to the Master
Servicer pursuant to the terms of the Servicing Agreement and (z) payments
to
the Indenture Trustee pursuant to Section 1(a)(ii) of the Administration
Agreement. The Issuer will not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the Basic Documents.
Section
3.24. Notice
of Events of Default.
The
Issuer shall give the Indenture Trustee the Note Insurer and the Rating Agencies
prompt written notice of each Event of Default hereunder and under the Trust
Agreement.
Section
3.25. Further
Instruments and Acts.
Upon
request of the Indenture Trustee, the Issuer will execute and deliver such
further instruments and do such further acts as may be reasonably necessary
or
proper to carry out more effectively the purpose of this Indenture.
Section
3.26. Statements
to Noteholders.
The
Indenture Trustee and the Certificate Registrar shall forward by mail to each
Noteholder and Certificateholder, respectively, the Statement delivered to
it
pursuant to Section 4.01 of the Servicing Agreement.
Section
3.27. Determination
of Note Interest Rate.
On the
second LIBOR Business Day immediately preceding (i) the Closing Date in the
case
of the first Interest Period and (ii) the first day of each succeeding Interest
Period, the Indenture Trustee shall determine LIBOR and the Note Interest Rate
for such Interest Period and shall inform the Issuer, the Master Servicer and
the Depositor at their respective facsimile numbers given to the Indenture
Trustee in writing thereof.
Section
3.28. Payments
Under the Note Insurance Policy.
(a)
On any
Payment Date, other than a Dissolution Payment Date, the Indenture Trustee
on
behalf of the Noteholders, and in its capacity as Certificate Paying Agent
on
behalf of the Certificateholders shall make a draw on the Note Insurance Policy
in an amount if any equal to the sum of (x) the amount by which the interest
accrued at the Note Interest Rate on the Security Balance of the Notes exceeds
the amount on deposit in the Payment Account available to be distributed
therefor on such Payment Date and (y) the Guaranteed Principal Payment Amount
(the “Credit Enhancement Draw Amount”).
(b) The
Indenture Trustee shall submit, if a Credit Enhancement Draw Amount is specified
in any Statement to Holders prepared by the Master Servicer pursuant to Section
4.01 of the Servicing Agreement, the Notice for Payment (as defined in the
Note
Insurance Policy) in the amount of the Credit Enhancement Draw Amount to the
Note Insurer no later than _____________ time, on the second Business Day prior
to the applicable Payment Date. Upon receipt of such Credit Enhancement Draw
Amount in accordance with the terms of the Note Insurance Policy, the Indenture
Trustee shall deposit such Credit Enhancement Draw Amount in the Payment Account
for distribution to Holders (and the Certificate Paying Agent on behalf of
the
Certificates) pursuant to Section 3.05.
In
addition, a draw may be made under the Note Insurance Policy in respect of
any
Avoided Payment (as defined in and pursuant to the terms and conditions of
the
Note Insurance Policy) and the Indenture Trustee shall submit a Notice for
Payment with respect thereto together with the other documents required to
be
delivered to the Note Insurer pursuant to the Note Insurance Policy in
connection with a draw in respect of any Avoided Payment.
(c) In
the
event that any Additional Note Insurance Policys are issued pursuant to Section
4.01 and Section 2.02(B) of the Insurance Agreement, the Indenture Trustee
shall
be authorized to make draws thereon subject to the terms and conditions
therein.
Section
3.29. Replacement
Note Insurance Policy.
In the
event of a Note Insurer Default or if the claims paying ability rating of the
Note Insurer is downgraded and such downgrade results in a downgrading of the
then current rating of the Securities (in each case, a “Replacement Event”), the
Issuer, at its expense, in accordance with and upon satisfaction of the
conditions set forth in the Note Insurance Policy, including, without
limitation, payment in full of all amounts owed to the Note Insurer, may, but
shall not be required to, substitute a new surety bond or surety bonds for
the
existing Note Insurance Policy or may arrange for any other form of credit
enhancement; provided,
however,
that in
each case the Notes shall be rated no lower than the rating assigned by each
Rating Agency to the Notes immediately prior to such Replacement Event and
the
timing and mechanism for drawing on such new credit enhancement shall be
reasonably acceptable to the Indenture Trustee and provided further that the
premiums under the proposed credit enhancement shall not exceed such premiums
under the existing Note Insurance Policy. It shall be a condition to
substitution of any new credit enhancement that there be delivered to the
Indenture Trustee (i) an Opinion of Counsel, acceptable in form to the Indenture
Trustee, from counsel to the provider of such new credit enhancement with
respect to the enforceability thereof and such other matters as the Indenture
Trustee may require and (ii) an Opinion of Counsel to the effect that such
substitution would not (a) adversely affect in any material respect the tax
status of the Notes or (b) cause the Issuer to be subject to a tax at the entity
level. Upon receipt of the items referred to above and payment of all amounts
owing to the Note Insurer and the taking of physical possession of the new
credit enhancement, the Indenture Trustee shall, within _____ Business Days
following receipt of such items and such taking of physical possession, deliver
the replaced Note Insurance Policy to the Note Insurer. In the event of any
such
replacement the Issuer shall give written notice thereof to the Rating
Agencies.
ARTICLE
IV
THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
Section
4.01. The
Notes.
The
Notes shall be registered in the name of a nominee designated by the Depository.
Beneficial Owners will hold interests in the Notes through the book-entry
facilities of the Depository in minimum initial Principal Balances of $______
and integral multiples of $_______ in excess thereof.
The
Indenture Trustee may for all purposes (including the making of payments due
on
the Notes) deal with the Depository as the authorized representative of the
Beneficial Owners with respect to the Notes for the purposes of exercising
the
rights of Holders of Notes hereunder. Except as provided in the next succeeding
paragraph of this Section 4.01, the rights of Beneficial Owners with respect
to
the Notes shall be limited to those established by law and agreements between
such Beneficial Owners and the Depository and Depository Participants. Except
as
provided in Section 4.08, Beneficial Owners shall not be entitled to definitive
certificates for the Notes as to which they are the Beneficial Owners. Requests
and directions from, and votes of, the Depository as Holder of the Notes shall
not be deemed inconsistent if they are made with respect to different Beneficial
Owners. The Indenture Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Noteholders and
give
notice to the Depository of such record date. Without the consent of the Issuer
and the Indenture Trustee, no Note may be transferred by the Depository except
to a successor Depository that agrees to hold such Note for the account of
the
Beneficial Owners.
In
the
event the Depository Trust Company resigns or is removed as Depository, the
Indenture Trustee with the approval of the Issuer may appoint a successor
Depository. If no successor Depository has been appointed within 30 days of
the
effective date of the Depository’s resignation or removal, each Beneficial Owner
shall be entitled to certificates representing the Notes it beneficially owns
in
the manner prescribed in Section 4.08.
The
Notes
shall, on original issue, be executed on behalf of the Issuer by the Owner
Trustee, not in its individual capacity but solely as Owner Trustee,
authenticated by the Note Registrar and delivered by the Indenture Trustee
to or
upon the order of the Issuer.
Section
4.02. Registration
of and Limitations On Transfer and Exchange of Notes; Appointment of Certificate
Registrar.
The
Issuer shall cause to be kept at its Corporate Trust Office a Note Register
in
which, subject to such reasonable regulations as it may prescribe, the Note
Registrar shall provide for the registration of Notes and of transfers and
exchanges of Notes as herein provided.
Subject
to the restrictions and limitations set forth below, upon surrender for
registration of transfer of any Note at the Corporate Trust Office, the
Indenture Trustee shall execute and the Note Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes in authorized initial Security Balances evidencing the same aggregate
Percentage Interests.
Subject
to the foregoing, at the option of the Noteholders, Notes may be exchanged
for
other Notes of like tenor or, in each case in authorized initial Principal
Balances evidencing the same aggregate Percentage Interests upon surrender
of
the Notes to be exchanged at the Corporate Trust Office of the Note Registrar.
Whenever any Notes are so surrendered for exchange, the Indenture Trustee shall
execute and the Note Registrar shall authenticate and deliver the Notes which
the Note holder making the exchange is entitled to receive. Each Note presented
or surrendered for registration of transfer or exchange shall (if so required
by
the Note Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Note Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing
with such signature guaranteed by a commercial bank or trust company located
or
having a correspondent located in the city of New York. Notes delivered upon
any
such transfer or exchange will evidence the same obligations, and will be
entitled to the same rights and privileges, as the Notes
surrendered.
No
service charge shall be made for any registration of transfer or exchange of
Notes, but the Note Registrar shall require payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes.
All
Notes
surrendered for registration of transfer and exchange shall be canceled by
the
Note Registrar and delivered to the Indenture Trustee for subsequent destruction
without liability on the part of either.
The
Issuer hereby appoints __________________________________ as Certificate
Registrar to keep at its Corporate Trust Office a Certificate Register pursuant
to Section 3.09 of the Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for
the
registration of Certificates and of transfers and exchanges thereof pursuant
to
Section 3.05 of the Trust Agreement. __________________________________ hereby
accepts such appointment.
Section
4.03. Mutilated,
Destroyed, Lost or Stolen Notes.
If (i)
any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a bona
fide purchaser, and provided that the requirements of Section 8-405 of the
UCC
are met, the Issuer shall execute, and upon its request the Indenture Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class;
provided, however, that if any such destroyed, lost or stolen Note, but not
a
mutilated Note, shall have become or within seven days shall be due and payable,
instead of issuing a replacement Note, the Issuer may pay such destroyed, lost
or stolen Note when so due or payable without surrender thereof. If, after
the
delivery of such replacement Note or payment of a destroyed, lost or stolen
Note
pursuant to the proviso to the preceding sentence, a 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 Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person
to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon
the
security or indemnity provided therefor to the extent of any loss, damage,
cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon
the
issuance of any replacement Note under this Section 4.03, the Issuer may require
the payment by the Holder of such Note of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Indenture Trustee)
connected therewith.
Every
replacement Note issued pursuant to this Section 4.03 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone,
and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The
provisions of this Section 4.03 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes.
Section
4.04. Persons
Deemed Owners.
Prior
to due presentment for registration of transfer of any Note, the Issuer, the
Indenture Trustee and any agent of the Issuer 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 neither the Issuer, the Indenture
Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected
by notice to the contrary.
Section
4.05. Cancellation.
All
Notes surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Indenture Trustee, be
delivered to the Indenture Trustee and shall be promptly canceled by the
Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee
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 canceled by the Indenture Trustee. No Notes shall
be
authenticated in lieu of or in exchange for any Notes canceled as provided
in
this Section 4.05, except as expressly permitted by this Indenture. All canceled
Notes may be held or disposed of by the Indenture Trustee in accordance with
its
standard retention or disposal policy as in effect at the time unless the Issuer
shall direct by an Issuer Request that they be destroyed or returned to it;
provided however, that such Issuer Request is timely and the Notes have not
been
previously disposed of by the Indenture Trustee.
Section
4.06. Book-Entry
Notes.
The
Notes, upon original issuance, will be issued in the form of typewritten Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Depository, by, or on behalf of, the Issuer. Such Notes
shall initially be registered on the Note Register in the name of Cede &
Co., the nominee of the initial Depository, and no Beneficial Owner will receive
a Definitive Note representing such Beneficial Owner’s interest in such Note,
except as provided in Section 4.08. Unless and until definitive, fully
registered Notes (the “Definitive Notes”) have been issued to Beneficial Owners
pursuant to Section 4.08:
(i) the
provisions of this Section 4.06 shall be in full force and effect;
(ii) the
Note
Registrar and the Indenture Trustee shall be entitled to deal with the
Depository for all purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole holder of the Notes, and shall have no
obligation to the Owners of Notes;
(iii) to
the
extent that the provisions of this Section 4.06 conflict with any other
provisions of this Indenture, the provisions of this Section 4.06 shall
control;
(iv) the
rights of Beneficial Owners shall be exercised only through the Depository
and
shall be limited to those established by law and agreements between such Owners
of Notes and the Depository and/or the Depository Participants. Unless and
until
Definitive Notes are issued pursuant to Section 4.08, the initial Depository
will make book-entry transfers among the Depository Participants and receive
and
transmit payments of principal of and interest on the Notes to such Depository
Participants; and
(v) whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders of Notes evidencing a specified percentage of the
Security Balances of the Notes, the Depository shall be deemed to represent
such
percentage only to the extent that it has received instructions to such effect
from Beneficial Owners and/or Depository Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
and has delivered such instructions to the Indenture Trustee.
Section
4.07. Notices
to Depository.
Whenever a notice or other communication to the Note Holders is required under
this Indenture, unless and until Definitive Notes shall have been issued to
Beneficial Owners pursuant to Section 4.08, the Indenture Trustee shall give
all
such notices and communications specified herein to be given to Holders of
the
Notes to the Depository, and shall have no obligation to the Beneficial
Owners.
Section
4.08. Definitive
Notes.
If (i)
the Administrator advises the Indenture Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities with
respect to the Notes and the Administrator is unable to locate a qualified
successor, (ii) the Administrator at its option advises the Indenture Trustee
in
writing that it elects to terminate the book-entry system through the Depository
or (iii) after the occurrence of an Event of Default, Owners of Notes
representing beneficial interests aggregating at least a majority of the
Security Balances of the Notes advise the Depository in writing that the
continuation of a book-entry system through the Depository is no longer in
the
best interests of the Beneficial Owners, then the Depository shall notify all
Beneficial Owners and the Indenture Trustee of the occurrence of any such event
and of the availability of Definitive Notes to Beneficial Owners requesting
the
same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Depository, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Depository. None of the Issuer, the Note Registrar 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 shall recognize
the
Holders of the Definitive Notes as Noteholders.
Section
4.09. Tax
Treatment.
The
Issuer has entered into this Indenture, and the Notes will be issued, with
the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer.
The Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of its Note (and each Beneficial Owner by its acceptance of an
interest in the applicable Book-Entry Note), agree to treat the Notes for
federal, state and local income, single business and franchise tax purposes
as
indebtedness of the Issuer.
Section
4.10. Satisfaction
and Discharge of Indenture.
This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution
of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.03,
3.04, 3.06, 3.09, 3.16, 3.18 and 3.19, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.07 and the obligations of the Indenture
Trustee under Section 4.11) and (vi) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and
at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes,
when
(A) either
(1) all
Notes
theretofore authenticated and delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been replaced or paid as provided in
Section 4.03 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 Indenture Trustee for cancellation; or
(2) all
Notes
not theretofore delivered to the Indenture Trustee for cancellation
(a) have
become due and payable,
(b) will
become due and payable at the Final Scheduled Payment Date within one year,
or
(c) have
been
called for early redemption pursuant to Section 5.02.
and
the
Issuer, in the case of a. or b. above, has irrevocably deposited or caused
to be
irrevocably deposited with the Indenture Trustee 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
and
Certificates then outstanding not theretofore delivered to the Indenture Trustee
for cancellation when due on the Final Scheduled Payment Date;
(B) the
Issuer has paid or caused to be paid all other sums payable hereunder and under
the Insurance Agreement by the Issuer; and
(C) the
Issuer has delivered to the Indenture Trustee and the Note Insurer an Officer’s
Certificate, an Opinion of Counsel and each meeting the applicable requirements
of Section 10.01 each stating that all conditions precedent herein provided
for
relating to the satisfaction and discharge of this Indenture have been complied
with and, if the Opinion of Counsel relates to a deposit made in connection
with
Section 4.10(A)(2)b. above, such opinion shall further be to the effect that
such deposit will not have any material adverse tax consequences to the Issuer,
any Noteholders or any Certificateholders.
Section
4.11. Application
of Trust Money.
All
monies deposited with the Indenture Trustee pursuant to Section 4.10 hereof
shall be held in trust and applied by it, in accordance with the provisions
of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent or Certificate Paying Agent, as the Indenture Trustee may
determine, to the Holders of Securities, of all sums due and to become due
thereon for principal and interest; but such monies need not be segregated
from
other funds except to the extent required herein or required by
law.
Section
4.12. Subrogation
and Cooperation.
(a)
The
Issuer and the Indenture Trustee acknowledge that (i) to the extent the Note
Insurer makes payments under the Note Insurance Policy on account of principal
of or interest on the Notes, the Note Insurer will be fully subrogated to the
rights of such Holders to receive such principal and interest from the Issuer,
and (ii) the Note Insurer shall be paid such principal and interest but only
from the sources and in the manner provided herein and in the Insurance
Agreement for the payment of such principal and interest.
The
Indenture Trustee shall cooperate in all respects with any reasonable request
by
the Note Insurer for action to preserve or enforce the Note Insurer’s rights or
interest under this Indenture or the Insurance Agreement without limiting the
rights of the Noteholders as otherwise set forth in the Indenture, including,
without limitation, upon the occurrence and continuance of a default under
the
Insurance Agreement, a request to take any one or more of the following
actions:
(i) institute
Proceedings for the collection of all amounts then payable on the Notes, or
under this Indenture in respect to the Notes and all amounts payable under
the
Insurance Agreement enforce any judgment obtained and collect from the Issuer
monies adjudged due;
(ii) sell
the
Trust Estate 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;
(iii) file
or
record all Assignments that have not previously been recorded;
(iv) institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture; and
(v) exercise
any remedies of a secured party under the Uniform Commercial Code and take
any
other appropriate action to protect and enforce the rights and remedies of
the
Note Insurer hereunder.
Section
4.13. Repayment
of Monies Held by Paying Agent.
In
connection with the satisfaction and discharge of this Indenture with respect
to
the Notes, all monies then held by any Administrator other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.05 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
Section
4.14. Temporary
Notes.
Pending
the preparation of any Definitive Notes, the Issuer may execute and upon its
written direction, the Indenture Trustee may authenticate and make available
for
delivery, temporary Notes that are printed, lithographed, typewritten,
photocopied or otherwise produced, in any denomination, substantially of the
tenor of the Definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as evidenced by their execution
of
such Notes.
If
temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of the Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Indenture
Trustee, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Notes, the Issuer shall execute and the Indenture Trustee
shall authenticate and make available for delivery, in exchange therefor,
Definitive Notes of authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, such temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as Definitive
Notes.
ARTICLE
V
DEFAULT
AND REMEDIES
Section
5.01. Events
of Default.
“Event
of Default,” wherever used herein, shall have the meaning provided in Article I;
provided, however, that no Event of Default will occur under clause (i) or
clause (ii) of the definition of “Event of Default” if the Issuer fails to make
payments of principal of and interest on the Notes so long as the Note Insurer
makes payments sufficient therefore under the Note Insurance
Policy.
The
Issuer shall deliver to the Indenture Trustee and the Note Insurer, within
five
days after learning of the occurrence of an Event of Default, 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)
of the definition of “Event of Default”, 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 or if the Master Servicer shall
purchase all of the Mortgage Loans pursuant to Section 8.08 of the Servicing
Agreement, then and in every such case the Indenture Trustee or the Holders
of
Notes representing not less than a majority of the Security Balances of all
Notes may declare 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 Class of
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable. Unless the prior written
consent of the Note Insurer shall have been obtained by the Indenture Trustee,
the Payment Date upon which such accelerated payment is due and payable shall
not be a Payment Date under the Note Insurance Policy and the Indenture Trustee
shall not be authorized under Section 3.29 to make a draw therefor.
At
any
time after such declaration of acceleration of maturity with respect to an
Event
of Default has been made and before a judgment or decree for payment of the
money due has been obtained by the Indenture Trustee as hereinafter in this
Article V provided, the Holders of Notes representing a majority of the Security
Balances of all Notes, by written notice to the Issuer and the Indenture
Trustee, may waive the related Event of Default and rescind and annul such
declaration and its consequences if:
(i) the
Issuer has paid or deposited with the Indenture Trustee a sum sufficient to
pay:
(A) all
payments of principal of and interest on the Notes and all other amounts that
would then be due hereunder or upon the Notes if the Event of Default giving
rise to such acceleration had not occurred; and
(B) all
sums
paid or advanced by the 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.
Section
5.03. Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a)
The
Issuer covenants that if (i) default is made in the payment of any interest
on
any Note when the same becomes due and payable, and such default continues
for a
period of five days, or (ii) default is made in the payment of the principal
of
or any installment of the principal of any Note when the same becomes due and
payable, the Issue shall, upon demand of the Indenture Trustee, pay to it,
for
the benefit of the Holders of Notes and of the Note Insurer, the whole amount
then due and payable on the Notes for principal and interest, with interest
upon
the overdue principal, and in addition thereto such further amount as shall
be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and 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, subject
to the provisions of Section 10.17 hereof may institute a Proceeding for the
collection of the sums so due and unpaid, and may prosecute such Proceeding
to
judgment or final decree, and may enforce the same against the Issuer or other
obligor upon the Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor the Notes, wherever situated, the monies
adjudged or decreed to be payable.
(c) If
an
Event of Default occurs and is continuing, the Indenture Trustee subject to
the
provisions of Section 10.17 hereof may, as more particularly provided in Section
5.04, in its discretion, proceed to protect and enforce its rights and the
rights of the Noteholders and the Note Insurer, 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 Trust
Estate, Proceedings under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or
in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for
or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, 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 monies or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Noteholders and of the Indenture Trustee on their behalf; and
(iv) to
file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee or the Holders
of
Notes allowed in any judicial proceedings relative to the Issuer, its creditors
and its property;
and
any
trustee, receiver, liquidator, custodian or other similar official in any such
Proceeding is hereby authorized by each of such Noteholders to make payments
to
the Indenture Trustee, and, in the event that the Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to the
Indenture Trustee 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, 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
subject to the provisions of Section 10.17 hereof may 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, and all amounts payable
under the Insurance Agreement, enforce any judgment obtained, and collect from
the Issuer and any other obligor upon such Notes monies adjudged
due;
(ii) institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture with respect to the Trust Estate;
(iii) exercise
any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture Trustee,
the Holders of the Notes and the Note Insurer; and
(iv) sell
the
Trust Estate or any portion thereof or rights or interest therein, at one or
more public or private sales called and conducted in any manner permitted by
law;
provided,
however,
that
the Indenture Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, unless (A) the Indenture Trustee obtains the
consent of the Holders of 100% of the aggregate Principal Balances of the Notes
and the Note Insurer, which consent will not be unreasonably withheld, (B)
the
proceeds of such sale or liquidation distributable to Holders are sufficient
to
discharge in full all amounts then due and unpaid upon the Notes for principal
and interest and to reimburse the Note Insurer for any amounts drawn under
the
Note Insurance Policy and any other amounts due the Note Insurer under the
Insurance Agreement or (C) the Indenture Trustee determines that the Mortgage
Loans will not continue to provide sufficient funds for the payment of principal
of and interest on the Notes as they would have become due if the Notes had
not
been declared due and payable, and the Indenture Trustee obtains the consent
of
the Note Insurer, which consent will not be unreasonably withheld, and of the
Holders of a majority of the aggregate Principal Balances of the Notes. In
determining such sufficiency or insufficiency with respect to clause (B) and
(C), the Indenture Trustee may, but need not, obtain and rely upon 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
Trust Estate for such purpose. Notwithstanding the foregoing, so long as an
Event of Servicer Termination has not occurred, any Sale of the Trust Estate
shall be made subject to the continued Servicing of the Mortgage Loans by the
Master Servicer as provided in the Servicing Agreement.
(b) If
the
Indenture Trustee collects any money or property pursuant to this Article V,
it
shall pay out the money or property in the following order:
FIRST:
to
the Indenture Trustee for amounts due under Section 6.07;
SECOND:
to each Class of Noteholders for amounts due and unpaid on the related Class
Notes for interest and to each Noteholder of such Class in each case, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Class of Notes for interest from amounts available in the Trust
Estate for such Noteholders;
THIRD:
to
Holders of each Class of Notes for amounts due and unpaid on the related Class
of Notes for principal, from amounts available in the Trust Estate for such
Noteholders, and to each Noteholder of such Class in each case ratably, without
preference or priority of any kind, according to the amounts due and payable
on
such Class of Notes for principal, until the Security Balances of each Class
of
Notes is reduced to zero;
FOURTH:
to the Issuer for amounts required to be distributed to the Certificateholders
in respect of interest and principal pursuant to the Trust
Agreement;
FIFTH:
To
the payment of all amounts due and owing to the Note Insurer under the Insurance
Agreement;
SIXTH:
to
the Issuer for amounts due under Article VIII of the Trust Agreement;
and
SEVENTH:
to the payment of the remainder, if any to the Issuer or any other person
legally entitled thereto.
The
Indenture Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 5.04. At least 15 days before such record
date, the Indenture Trustee shall mail to each Noteholder a notice that states
the record date, the payment date and the amount to be paid.
Section
5.05. Optional
Preservation of the Trust Estate.
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 take
and maintain possession of the Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for
the
payment of principal of and interest on the Notes and other obligations of
the
Issuer including payment to the Note Insurer, and the Indenture Trustee shall
take such desire into account when determining whether or not to take and
maintain possession of the Trust Estate. In determining whether to take and
maintain possession of the Trust Estate, 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 Trust Estate for such
purpose.
Section
5.06. Limitation
of Suits.
No
Holder of any Note shall have any right to institute any Proceeding, judicial
or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless and subject to the
provisions of Section 10.17 hereof:
(i) such
Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;
(ii) the
Holders of not less than 25% of the Security Balances 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 reasonable indemnity
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 Security
Balances of the Notes.
It
is
understood and intended that no one or more Holders of Notes shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Notes or to obtain or to seek to obtain priority or preference over any
other
Holders or to enforce any right under this Indenture, except in the manner
herein provided.
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 Security Balances of the Notes, the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, 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 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 Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by
law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or
by
the Noteholders, as the case may be.
Section
5.11. Control
By Noteholders.
The
Holders of a majority of the Security Balances of Notes shall have the right
to
direct the time, method and place of conducting any Proceeding for any remedy
available to the Indenture Trustee with respect to the Notes or exercising
any
trust or power conferred on the Indenture Trustee; provided that:
(i) such
direction shall not be in conflict with any rule of law or with this
Indenture;
(ii) subject
to the express terms of Section 5.04, any direction to the Indenture Trustee
to
sell or liquidate the Trust Estate shall be by Holders of Notes representing
not
less than 100% of the Security Balances of Notes;
(iii) if
the
conditions set forth in Section 5.05 have been satisfied and the Indenture
Trustee elects to retain the Trust Estate pursuant to such Section, then any
direction to the Indenture Trustee by Holders of Notes representing less than
100% of the Security Balances of Notes to sell or liquidate the Trust Estate
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 Noteholders set forth in this Section, subject to Section 6.01,
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
Security Balances of the Notes may waive any past Event of Default and its
consequences except an Event of Default (a) with respect to payment of principal
of or interest on any of the Notes or (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder
of
each Note or (c) the waiver of which would materially and adversely affect
the
interests of the Note Insurer or modify its obligation under the Note Insurance
Policy. 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 Event of Default or impair any right consequent thereto.
Upon
any
such waiver, any Event of Default arising therefrom shall be deemed to have
been
cured and not to have occurred, for every purpose of this Indenture; but no
such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereto.
Section
5.13. Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Note 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 5.13 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 Security Balances of the Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note
on or
after the respective due dates expressed in such Note and in this
Indenture.
Section
5.14. Waiver
of Stay or Extension Laws.
The
Issuer covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, that may affect the covenants or the performance
of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it
shall not hinder, delay or impede the execution of any power herein granted
to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section
5.15. Sale
of Trust Estate.
(a)
The
power to effect any sale or other disposition (a “Sale”) of any portion of the
Trust Estate pursuant to Section 5.04 is expressly subject to the provisions
of
Section 5.05 and this Section 5.15. The power to effect any such Sale shall
not
be exhausted by any one or more Sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall have been sold or all amounts payable on the Notes and under this
Indenture and under the Insurance Agreement shall have been paid. The Indenture
Trustee may from time to time postpone any public Sale by public announcement
made at the time and place of such Sale. The Indenture Trustee hereby expressly
waives its right to any amount fixed by law as compensation for any
Sale.
(b) The
Indenture Trustee shall not in any private Sale sell the Trust Estate, or any
portion thereof, unless
(1) the
Holders of all Notes and the Note Insurer consent to or direct the Indenture
Trustee to make, such Sale, or
(2) the
proceeds of such Sale would be not less than the entire amount which would
be
payable to the Noteholders under the Notes and the Note Insurer in respect
of
amounts drawn under the Note Insurance Policy and any other amounts due the
Note
Insurer under the Insurance Agreement, in full payment thereof in accordance
with Section 5.02, on the Payment Date next succeeding the date of such Sale,
or
(3) The
Indenture Trustee determines, in its sole discretion, that the conditions for
retention of the Trust Estate set forth in Section 5.05 cannot be satisfied
(in
making any such determination, the Indenture Trustee may rely upon an opinion
of
an Independent investment banking firm obtained and delivered as provided in
Section 5.05), and the Note Insurer consents to such Sale, which consent will
not be unreasonably withheld and the Holders representing at least ______%
of
the Security Balances of the Notes consent to such Sale.
The
purchase by the Indenture Trustee of all or any portion of the Trust Estate
at a
private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
(c) Unless
the Holders and the Note Insurer have otherwise consented or directed the
Indenture Trustee, at any public Sale of all or any portion of the Trust Estate
at which a minimum bid equal to or greater than the amount described in
paragraph (2) of subsection (b) of this Section 5.15 has not been established
by
the Indenture Trustee and no Person bids an amount equal to or greater than
such
amount, the Indenture Trustee shall bid an amount at least $1.00 more than
the
highest other bid.
(d) In
connection with a Sale of all or any portion of the Trust Estate
(1) any
Holder or Holders of Notes may bid for and with the consent of the Note Insurer
purchase the property offered for sale, and upon compliance with the terms
of
sale may hold, retain and possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor, deliver any
Notes or claims for interest thereon in lieu of cash up to the amount which
shall, upon distribution of the net proceeds of such sale, be payable thereon,
and such Notes, in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to the Holders thereof after being
appropriately stamped to show such partial payment;
(2) the
Indenture Trustee may bid for and acquire the property offered for Sale in
connection with any Sale thereof, and, subject to any requirements of, and
to
the extent permitted by, applicable law in connection therewith, may purchase
all or any portion of the Trust Estate in a private sale, and, in lieu of paying
cash therefor, may make settlement for the purchase price by crediting the
gross
Sale price against the sum of (A) the amount which would be distributable to
the
Holders of the Notes and Holders of Certificates and amounts owing to the Note
Insurer as a result of such Sale in accordance with Section 5.04(b) on the
Payment Date next succeeding the date of such Sale and (B) the expenses of
the
Sale and of any Proceedings in connection therewith which are reimbursable
to
it, without being required to produce the Notes in order to complete any such
Sale or in order for the net Sale price to be credited against such Notes,
and
any property so acquired by the Indenture Trustee shall be held and dealt with
by it in accordance with the provisions of this Indenture;
(3) the
Indenture Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Trust Estate in
connection with a Sale there of;
(4) the
Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact
of the Issuer to transfer and convey its interest in any portion of the Trust
Estate in connection with a Sale thereof, and to take all action necessary
to
effect such Sale; and
(5) no
purchaser or transferee at such a Sale shall be bound to ascertain the Indenture
Trustee’s authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
Section
5.16. Action
on Notes.
The
Indenture Trustee’s right to seek and recover judgment on the Notes or under
this Indenture shall not be affected by the seeking, obtaining or application
of
any other relief under or with respect to this Indenture. Neither the lien
of
this Indenture nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Trust Estate or upon any of the assets of the Issuer.
Any money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.04(b).
Section
5.17. Performance
and Enforcement of Certain Obligations.
(a)
Promptly
following a request from the Indenture Trustee to do so and at the
Administrator’s expense, the Issuer in its capacity as holder of the Mortgage
Loans, shall take all such lawful action as the Indenture Trustee may request
to
cause the Issuer to compel or secure the performance and observance by the
Seller and the Master Servicer, as applicable, of each of their obligations
to
the Issuer under or in connection with the Mortgage Loan Purchase Agreement
and
the Servicing Agreement, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Issuer under or in connection with
the
Mortgage Loan Purchase Agreement and the Servicing Agreement to the extent
and
in the manner directed by the Indenture Trustee, as pledgee of the Mortgage
Loans, including the transmission of notices of default on the part of the
Seller or the Master Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Master Servicer of each of their obligations under the Mortgage
Loan Purchase Agreement and the Servicing Agreement.
(b) If
an
Event of Default has occurred and is continuing, the Indenture Trustee, as
pledgee of the Mortgage Loans, subject to the rights of the Note Insurer under
the Servicing Agreement may, and at the direction (which direction shall be
in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Security Balances of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Seller
or the Master Servicer under or in connection with the Mortgage Loan Purchase
Agreement and the Servicing Agreement, including the right or power to take
any
action to compel or secure performance or observance by the Seller or the Master
Servicer, as the case may be, of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Mortgage Loan Purchase Agreement and the Servicing
Agreement, as the case may be, and any right of the Issuer to take such action
shall not be suspended.
ARTICLE
VI
THE
INDENTURE TRUSTEE
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 their exercise as a prudent person would exercise
or
use under the circumstances in the conduct of such person’s own
affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
Indenture Trustee undertakes to perform such duties and only such duties as
are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee;
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
conforming to the requirements of this Indenture; however, the Indenture Trustee
shall examine the certificates and opinions to determine whether or not they
conform 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 or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section
6.01;
(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; and
(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 a direction received by it (A)
pursuant to Section 5.11 or (B) from the Note Insurer, which it is entitled
to
give under any of the Basic Documents.
(d) The
Indenture Trustee shall not be liable for interest on any money received by
it
except as the Indenture Trustee may agree in writing with the
Issuer.
(e) 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
Trust
Agreement.
(f) No
provision of this Indenture shall require the Indenture Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance
of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(g) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
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. 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.
(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, and the Indenture Trustee shall not be responsible for
any
misconduct or negligence on the part of, or for the supervision of, any such
agent, attorney, custodian or nominee appointed with due care by it
hereunder.
(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, however, that the Indenture Trustee’s conduct does not constitute
willful misconduct, negligence or bad faith.
(e) The
Indenture Trustee may consult with counsel, and the advice or opinion of counsel
with respect to legal matters relating to this Indenture 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 the advice or opinion of such counsel.
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
Administrator, Note Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Indenture Trustee must comply with Sections
6.11
and 6.12.
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 this Indenture or the Notes, it shall not be
accountable for the Issuer’s use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee’s certificate of authentication.
Section
6.05. Notice
of Event of Default.
If an
Event of Default occurs and is continuing and if it is known to a Responsible
Officer of the Indenture Trustee, the Indenture Trustee shall give notice
thereof to the Note Insurer. The Trustee shall mail to each Noteholder notice
of
the Event of Default within 90 days after it occurs. Except in the case of
an
Event of Default in payment of principal of or interest on any Note, the
Indenture Trustee may withhold the notice if and so long as a committee of
its
Responsible Officers in good faith determines that withholding the notice is
in
the interests of Noteholders.
Section
6.06. Reports
by Indenture Trustee to Holders.
The
Indenture Trustee shall deliver to each Noteholder such information as may
be
required to enable such holder to prepare its federal and state income tax
returns. In addition, upon the Issuer’s written request, the Indenture Trustee
shall promptly furnish information reasonably requested by the Issuer that
is
reasonably available to the Indenture Trustee to enable the Issuer to perform
its federal and state income tax reporting obligations.
Section
6.07. Compensation
and Indemnity.
The
Issuer shall or shall cause the Administrator to pay to the Indenture Trustee
on
each Payment Date reasonable compensation for its services. The Indenture
Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall or shall cause the Administrator
to reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee’s
agents, counsel, accountants and experts. The Issuer shall or shall cause the
Administrator to indemnify the Indenture Trustee against any and all 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. The Indenture Trustee shall notify the Issuer and the Administrator
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuer and the Administrator shall not relieve the
Issuer or the Administrator of its obligations hereunder. The Issuer shall
or
shall cause the Administrator to defend any such claim, and the Indenture
Trustee may have separate counsel and the Issuer shall or shall cause the
Administrator to pay the fees and expenses of such counsel. Neither the Issuer
nor the Administrator need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the Indenture
Trustee’s own willful misconduct, negligence or bad faith.
The
Issuer’s payment obligations to the Indenture Trustee pursuant to this Section
6.07 shall survive the discharge of this Indenture. When the Indenture Trustee
incurs expenses after the occurrence of an Event of Default specified in Section
5.01(iv) or (v) 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 6.08.
The Indenture Trustee may resign at any time by so notifying the Issuer and
the
Note Insurer. The Holders of a majority of Security Balances of the Notes may
remove the Indenture Trustee by so notifying the Indenture Trustee and the
Note
Insurer and may appoint a successor 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 a 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 resigns or is removed or if a vacancy exists in the office
of
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.
A
successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. 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 within 60 days after the
retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Holders of a majority of Security Balances 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.
Notwithstanding
the replacement of the Indenture Trustee pursuant to this Section, the Issuer’s
and the Administrator’s obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Section
6.09. Successor
Indenture Trustee by Xxxxxx.
If the
Indenture Trustee consolidates with, merges or converts into, or transfers
all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided, that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies prior written notice of any such transaction.
In
case
at the time such successor or successors by merger, conversion or consolidation
to the Indenture Trustee shall succeed to the trusts created by this Indenture
any of the Notes shall have been authenticated but not delivered, any such
successor to the Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in
case
at that time any of the Notes shall not have been authenticated, any successor
to the Indenture Trustee may authenticate such Notes either in the name of
any
predecessor hereunder or in the name of the successor to the Indenture Trustee;
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
Indenture Trustee shall have.
Section
6.10. Appointment
of Co-Indenture Trustee or Separate Indenture Trustee.
(a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Trust Estate 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 Trust Estate, 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 Trust Estate
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 Agreement and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance
of
the trusts conferred, shall be vested with the estates or property specified
in
its instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating
to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any
separate trustee or co-trustee may at any time constitute the Indenture Trustee,
its agent or attorney-in-fact with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment
of a
new or successor trustee.
Section
6.11. Eligibility;
Disqualification.
The
Indenture Trustee shall at all times satisfy the requirements of TIA ss. 310(a).
The Indenture Trustee shall have a combined capital and surplus of at least
[$50,000,000] as set forth in its most recent published annual report of
condition and it or its parent shall have a long-term debt rating of [Baa3]
or
better by [Xxxxx’x]. The Indenture Trustee shall comply with TIA ss. 310(b),
including the optional provision permitted by the second sentence of TIA ss.
310(b)(9); provided, however, that there shall be excluded from the operation
of
TIA ss. 310(b)(1) any indenture or indentures under which other securities
of
the Issuer are outstanding if the requirements for such exclusion set forth
in
TIA ss. 310(b)(1) are met.
Section
6.12. Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned
or
been removed shall be subject to TIA ss. 311(a) to the extent
indicated.
Section
6.13. Representation
and Warranty.
The
Indenture Trustee hereby represents that:
(i) The
Indenture Trustee is duly organized and validly existing as a corporation in
good standing under the laws of the State of ___________, 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.
(ii) 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.
(iii) 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 incorporation or bylaws of
the
Indenture Trustee or any agreement or other instrument to which the Indenture
Trustee is a party or by which it is bound
(iv) 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 or its properties: (A) asserting the invalidity of this Indenture (B)
seeking to prevent the consummation of any of the transactions contemplated
by
this Indenture or (C) 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
6.14. Directions
to Indenture Trustee.
The
Indenture Trustee is hereby directed:
(a) to
accept
the pledge of the Mortgage Loans and hold the assets of the Trust in trust
for
the Noteholders;
(b) to
issue,
execute and deliver the Notes substantially in the form prescribed by Exhibit
A
in accordance with the terms of this Indenture; and
(c) to
take
all other actions as shall be required to be taken by the terms of this
Indenture.
Section
6.15. [No
Consent to Certain Acts of Depositor.
The
Indenture Trustee shall not consent to any action proposed to be taken by the
Depositor pursuant to Article [_________] of the Depositor’s Restated
Certificate of Incorporation.]
Section
6.16. Indenture
Trustee May Own Securities.
The
Indenture Trustee, in its individual or any other capacity may become the owner
or pledgee of Securities with the same rights it would have if it were not
Indenture Trustee.
ARTICLE
VII
NOTEHOLDERS’
LISTS AND REPORTS
Section
7.01. Issuer
to Furnish Indenture Trustee Names and Addresses of Noteholders.
The
Issuer will furnish or cause to be furnished to the Indenture Trustee (a) not
more than five days after each Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date, (b) at such other times as the
Indenture Trustee and the Note Insurer may request in writing, within 30 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the
Note
Registrar, no such list shall be required to be furnished.
Section
7.02. Preservation
of Information; Communications to Noteholders.
(a)
The
Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section
7.01
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy
any
list furnished to it as provided in such Section 7.01 upon receipt of a new
list
so furnished.
(b) Noteholders
may communicate pursuant to TIA ss. 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 Note Registrar shall have the protection
of TIA ss. 312(c).
Section
7.03. Reports
by Issuer.
(a)
The
Issuer shall:
(i) file
with
the Indenture Trustee, within 15 days after the Issuer is required to file
the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
that
the Issuer may be required to file with the Commission pursuant to Section
13 or
15(d) of the Exchange Act;
(ii) file
with
the Indenture Trustee, and the Commission in accordance with rules and
regulations prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance by the Issuer
with
the conditions and covenants of this Indenture as may be required from time
to
time by such rules and regulations; and
(iii) supply
to
the Indenture Trustee (and the Indenture Trustee shall transmit by mail to
all
Noteholders described in TIA ss. 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to clauses
(i)
and (ii) of this Section 7.03(a) and by rules and regulations prescribed from
time to time by the Commission.
(b) Unless
the Issuer otherwise determines, the fiscal year of the Issuer shall end on
December 31 of each year.
Section
7.04. Reports
by Indenture Trustee.
If
required by TIA ss. 313(a), within 60 days after each January 1 beginning with
January 1, ______, the Indenture Trustee shall mail to each Note holder as
required by TIA ss. 313(c) and to the Note Insurer a brief report dated as
of
such date that complies with TIA ss. 313(a). The Indenture Trustee also shall
comply with TIA ss. 313(b).
A
copy of
each report at the time of its mailing to Noteholders shall be filed by the
Indenture Trustee with the Commission and each stock 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 stock exchange.
Section
7.05. Commission
Reporting.
(a) (i) The
Indenture Trustee and the Servicer shall reasonably cooperate with the Depositor
in connection with the Trust’s satisfying the reporting requirements under the
Exchange Act. Within 15 days after each Distribution Date, the Indenture Trustee
shall, in accordance with industry standards, file with the Commission via
the
Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report
on Form 10-D, signed by the Depositor, with a copy of the monthly statement
to
be furnished by the Indenture Trustee to the Certificateholders for such
Distribution Date and detailing all data elements specified in Item 1121(a)
of
Regulation AB as part of the monthly statement or otherwise as part of the
Form
10-D; provided that the Indenture Trustee shall have received no later than
four
Business Days prior to the date such Distribution Report on Form 10-D is
required to be filed, all information required to be provided to the Indenture
Trustee as described in Section 4.07(a)(iv). The information required to be
filed on Form 10-D is as set forth in Exhibit C. The Indenture Trustee shall
not
be responsible for determing what information is required to be filed on Form
10-D or for any filing that is not made on a timely basis in accordance with
Regulation AB in the event that such information is not delivered to the
Indenture Trustee on or prior to the fourth Business Day prior to the applicable
filing deadline.
(ii) The
Indenture Trustee will prepare and file Current Reports on Form 8-K in respect
of the Trust, signed by the Depositor, as and when required; provided, that,
the
Indenture Trustee shall have received no later than four Business Days prior
to
the filing deadline for such Current Report, all information, data, and exhibits
required to be provided or filed with such Current Report and required to be
provided to the Indenture Trustee as described in Section 4.07(a)(iv) below.
The
Depositor shall prepare or cause to be prepared and file the Current Report
on
Form 8-K attaching this Agreement as an exhibit. The information required to
be
filed on Form 8-K is as set forth in Exhibit C. The Indenture Trustee shall
not
be responsible for determing what information is required to be filed on Form
8-K or for any filing that is not made on a timely basis in accordance with
Regulation AB in the event that such information is not delivered to the Trust
Adminsitrator on or prior to the fourth Business Day prior to the applicable
filing deadline.
(iii) No
later
than January 30, 2007, the Indenture Trustee shall, in accordance with industry
standards, file a Form 15 Suspension Notice with respect to the Trust Fund,
if
applicable. Prior to (x) March 15, 2007 and (y) unless and until a Form 15
Suspension Notice shall have been filed, prior to March 15th of each year
thereafter, the Servicer shall provide the Indenture Trustee with an Annual
Compliance Statement, together with a copy of the Assessment of Compliance
and
Attestation Report to be delivered by the Servicer pursuant to Sections 3.21
and
3.22 (including with respect to any Sub-Servicer or subcontractor, if required
to be filed). Prior to (x) March 31, 2007 and (y) unless and until a Form 15
Suspension Notice shall have been filed, March 31st of each year thereafter,
the
Indenture Trustee shall, subject to subsection (d) below, file a Form 10-K,
in
substance as required by applicable law or applicable Commission staff’s
interpretations and conforming to industry standards, with respect to the Trust
Fund. Such Form 10-K shall include the Assessment of Compliance, Attestation
Report, Annual Compliance Statements and other documentation provided by the
Servicer pursuant to Sections 3.20 and 3.21 (including with respect to any
Sub-Servicer or subcontractor, if required to be filed) and with respect to
the
Indenture Trustee, and the Form 10-K certification in the form attached hereto
as Exhibit H-1 (the “Certification”) signed by the senior officer of the
Depositor in charge of securitization; provided that the Indenture Trustee
shall
have received no later than March 25th of each calendar year prior to the filing
deadline for the Form 10-K all information, data and exhibits required to be
provided or filed with such Form 10-K and required to be provided to the
Indenture Trustee as described in clause (a)(iv) below. If they are not so
timely delivered, the Indenture Trustee shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Indenture Trustee. The information required to be filed on Form
10-K is as set forth in Exhibit C. The Indenture Trustee shall not be
responsible for determing what information is required to be filed on Form
10-K
or for any filing that is not made on a timely basis in accordance with
Regulation AB in the event that such information is not delivered to the Trust
Adminsitrator on or prior to the fourth Business Day prior to the applicable
filing deadline.
(iv) As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Indenture Trustee’s obligation to include the information in the
applicable report is subject to receipt from the entity that is indicated in
Exhibit B as the responsible party for providing that information, if other
than
the Indenture Trustee, as and when required as described above. The Depositor
hereby agrees to notify and provide to the Indenture Trustee all information
that is required to be included in any Form 10-D, Form 8-K or Form 10-K, with
respect to which that entity is indicated in Exhibit B as the responsible party
for providing that information. The Servicer shall be responsible for
determining the pool concentration applicable to any Sub-Servicer at any time,
for purposes of disclosure as required by Items 1117 and 1119 of Regulation
AB.
The Depositor shall be responsible for determining the pool concentration
applicable to any originator at any time, for purposes of disclosure as required
by Items 1117 and 1119 of Regulation AB. In addition, in the event that
affiliations among the parties to this transaction, other than as disclosed
in
the Prospectus Supplement under the heading “AFFILIATIONS AND RELATED
TRANSACTIONS”, are required to be reported on Form 10-K, the Depositor shall
notify the Indenture Trustee of such requirement by no later than March 1st
of
each year in which a Form 10-K is filed.
(b) In
addition, (x) the Indenture Trustee shall sign a certification (in the form
attached hereto as Exhibit H-2) for the benefit of the Depositor and its
officers, directors and Affiliates regarding certain aspects of the
Certification (the “Indenture Trustee Certification”); provided, however, that
the Indenture Trustee shall not undertake an analysis of the Attestation Report
attached as an exhibit to the Form 10-K, and (y) the Servicer shall sign a
certification (in the related form attached hereto as Exhibit H-3) for the
benefit of the Depositor, the Indenture Trustee and their officers, directors
and Affiliates regarding certain aspects of the Certification (the “Servicer
Certification”). The Servicer Certification shall be delivered to the Depositor
and the Indenture Trustee no later than March 15th or if such day is not a
Business Day, the preceding Business Day, each year (subject to Section
4.07(a)).
In
addition, (A) the Indenture Trustee shall indemnify and hold harmless the
Depositor and its officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of
third party claims based upon (i) a breach of the Indenture Trustee’s
obligations under this Section 4.07 or (ii) any material misstatement or
omission contained in the Indenture Trustee Certification, the Annual Statement
of Compliance delivered by the Indenture Trustee pursuant to Section 3.20 or
the
Assessment of Compliance delivered by the Indenture Trustee pursuant to Section
3.21 and (B) the Servicer shall indemnify and hold harmless the Depositor,
the
Indenture Trustee and their respective officers, directors and Affiliates from
and against any actual losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses that such Person may sustain arising out of third party claims
based upon (i) a breach of such Servicer’s obligations under this Section 4.07,
(ii) any material misstatement or omission contained in the Servicer’s
Certification, the Annual Statement of Compliance provided by the Servicer
pursuant to Section 3.20, the Assessment of Compliance provided by the Servicer
pursuant to Section 3.21 or (iii) any information correctly derived by the
Indenture Trustee and included in a Form 10-D or Form 10-K from information
provided to the Indenture Trustee by the Servicer under this Agreement. If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then (i) the Indenture Trustee agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of the
losses, claims, damages or liabilities of the Depositor in such proportion
as is
appropriate to reflect the relative fault of the Depositor on the one hand
and
the Indenture Trustee on the other and (ii) the Servicer agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of the
losses, claims, damages or liabilities of the Depositor in such proportion
as is
appropriate to reflect the relative fault of the Depositor on the one hand
and
the Servicer on the other. Notwithstanding the foregoing, in no event shall
the
Indenture Trustee be liable for any consequential, indirect or punitive
damages
ARTICLE
VIII
ACCOUNTS,
DISBURSEMENTS AND RELEASES
Section
8.01. Collection
of Money.
Except
as otherwise expressly provided herein, the Indenture Trustee may demand payment
or delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Trust Estate, the
Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
Section
8.02. Trust
Accounts.
(a)
On or
prior to the Closing Date, the Issuer shall cause the Indenture Trustee to
establish and maintain, in the name of the Indenture Trustee, for the benefit
of
the Noteholders and the Certificate Paying Agent, on behalf of the
Certificateholders and the Note Insurer, the Payment Account as provided in
Section 3.01 of this Indenture.
(b) All
monies deposited from time to time in the Payment Account pursuant to the
Servicing Agreement and all deposits therein pursuant to this Indenture are
for
the benefit of the Noteholders and the Certificate Paying Agent, on behalf
of
the Certificateholders and all investments made with such monies including
all
income or other gain from such investments are for the benefit of the Master
Servicer as provided by the Servicing Agreement.
On
each
Payment Date during the Funding Period the Indenture Trustee shall withdraw
Net
Principal Collections from the Payment Account and deposit Net Principal
Collections to the Funding Account.
On
each
Payment Date, the Indenture Trustee shall distribute all amounts on deposit
in
the Payment Account (after giving effect to the withdrawal referred to in the
preceding paragraph) to Noteholders in respect of the Notes and in its capacity
as Certificate Paying Agent to Certificateholders in the order of priority
set
forth in Section 3.05 (except as otherwise provided in Section
5.04(b).
The
Master Servicer may direct the Indenture Trustee to invest any funds in the
Payment Account in Eligible Investments maturing no later than the Business
Day
preceding each Payment Date and shall not be sold or disposed of prior to the
maturity. Unless otherwise instructed by the Master Servicer, the Indenture
Trustee shall invest all funds in the Payment Account in Eligible
Investments.
(c) On
or
before the Closing Date the Issuer shall open, at the Corporate Trust Office,
an
account which shall be the “Funding Account”. The Master Servicer may direct the
Indenture Trustee to invest any funds in the Funding Account in Eligible
Investments maturing no later than the Business Day preceding each Payment
Date
and shall not be sold or disposed of prior to the maturity. Unless otherwise
instructed by the Master Servicer, the Indenture Trustee shall invest all funds
in the Payment Account in its Corporate Trust Short Term Investment Fund so
long
as it is an Eligible Investment. During the Funding Period, any amounts received
by the Indenture Trustee in respect of Net Principal Collections for deposit
in
the Funding Account, together with any Eligible Investments in which such monies
are or will be invested or reinvested during the term of the Notes, shall be
held by the Indenture Trustee in the Funding Account as part of the Trust
Estate, subject to disbursement and withdrawal as herein provided: Amounts
on
deposit in the Funding Account in respect of Net Principal Collections may
be
withdrawn on each Deposit Date and (1) paid to the Issuer in payment for
Additional Loans by the deposit of such amount to the Collection Account and
(2)
at the end of the Funding Period any amounts remaining in the Funding Account
after the withdrawal called for by clause (1) shall be deposited in the Payment
Account to be included in the payment of principal on the Payment Date that
is
the last day of the Funding Period.
(d) (i)
Any
investment in the institution with which the Funding Account is maintained
may
mature on such Payment Date and (ii) any other investment may mature on such
Payment Date if the Indenture Trustee shall advance funds on such Payment Date
to the Funding Account in the amount payable on such investment on such Payment
Date, pending receipt thereof to the extent necessary to make distributions
on
the Notes and the Certificates) and shall not be sold or disposed of prior
to
maturity.
Section
8.03. Officer’s
Certificate.
The
Indenture Trustee shall receive at least [seven] days notice when requested
by
the Issuer to take any action pursuant to Section 8.05(a), accompanied by copies
of any instruments to be executed, and the Indenture Trustee shall also require,
as a condition to such action, an Officer’s Certificate, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied
with.
Section
8.04. Termination
Upon Distribution to Noteholders.
This
Indenture and the respective obligations and responsibilities of the Issuer
and
the Indenture Trustee created hereby shall terminate upon the distribution
to
Noteholders, Certificate Paying Agent, on behalf of the Certificateholders
and
the Indenture Trustee of all amounts required to be distributed pursuant to
Article III; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the survivor of
the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States
to
the Court of St. Xxxxx, living on the date hereof.
Section
8.05. Release
of Trust Estate.
(a)
Subject
to the payment of its fees and expenses, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee’s interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in Article VIII
hereunder shall be bound to ascertain the Indenture Trustee’s authority, inquire
into the satisfaction of any conditions precedent, or see to the application
of
any monies.
(b) The
Indenture Trustee shall, at such time as (i) there are no Notes Outstanding,
(ii) all sums due the Indenture Trustee pursuant to this Indenture have been
paid, and (iii) all sums due the Note Insurer have been paid, release any
remaining portion of the Trust Estate that secured the Notes from the lien
of
this Indenture.
(c) [The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.05 only upon receipt of an request from the Issuer
accompanied by an [Officers’ Certificate], [an Opinion of Counsel,] and a letter
from the Note Insurer, stating that the Note Insurer has no objection to such
request from the Issuer.]
Section
8.06. Surrender
of Notes Upon Final Payment.
By
acceptance of any Note, the Holder thereof agrees to surrender such Note to
the
Indenture Trustee promptly, prior to such Note holder’s receipt of the final
payment thereon.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.01. Supplemental
Indentures Without Consent of Noteholders.
(a)
Without
the consent of the Holders of any Notes but with the consent of the Note Insurer
and prior notice to the Rating Agencies and the Note Insurer, the Issuer and
the
Indenture Trustee, when authorized by an Issuer Request, at any time and from
time to time, may enter into one or more indentures supplemental hereto (which
shall conform to the provisions of the 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) to
cure
any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision herein
or in any supplemental indenture
(vi) to
make
any other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that such action shall
not
materially and adversely affect the interests of the Holders of the
Notes;
(vii) to
evidence and provide for the acceptance of the appointment hereunder by a
successor trustee with respect to the Notes and to add to or change any of
the
provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to
the
requirements of Article VI; or
(viii) to
modify, eliminate or add to the provisions of this Indenture to such extent
as
shall be necessary to effect the qualification of this Indenture under the
TIA
or under any similar federal statute hereafter enacted and to add to this
Indenture such other provisions as may be expressly required by the
TIA;
provided,
however, that no such indenture supplements shall be entered into unless the
Indenture Trustee shall have received an Opinion of Counsel that entering into
such indenture supplement will not have any material adverse tax consequences
to
the Noteholders.
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) The
Issuer and the Indenture Trustee, when authorized by an Issuer Request, may,
also without the consent of any of the Holders of the Notes but with the consent
of the Note Insurer and prior notice to the Rating Agencies and the Note
Insurer, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however,
that
such action shall not, as evidenced by an Opinion of Counsel, (i) adversely
affect in any material respect the interests of any Noteholder or (ii) cause
the
Issuer to be subject to an entity level tax.
Section
9.02. Supplemental
Indentures With Consent of Noteholders.
The
Issuer and the Indenture Trustee, when authorized by an Issuer Request, also
may, with prior notice to the Rating Agencies and, with the written consent
of
the Note Insurer and with the consent of the Holders of not less than a majority
of the Security Balances of each Class of Notes affected thereby, 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, without the consent of the Holder of each Note affected
thereby:
(i) change
the date of payment of any installment of principal of or interest on any Note,
or reduce the principal amount thereof or the interest rate thereon, change
the
provisions of this Indenture relating to the application of collections on,
or
the proceeds of the sale of, the Trust Estate to payment of principal of or
interest on the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article
V,
to the payment of any such amount due on the Notes on or after the respective
due dates thereof;
(ii) reduce
the percentage of the Security Balances of the Notes, the consent of the Holders
of which is required for any such supplemental indenture, or the consent of
the
Holders of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify
or
alter the provisions of the proviso to the definition of the term “Outstanding”
or modify or alter the exception in the definition of the term
“Holder”;
(iv) reduce
the percentage of the Security Balances of the Notes required to direct the
Indenture Trustee to direct the Issuer to sell or liquidate the Trust Estate
pursuant to Section 5.04;
(v) modify
any provision of this Section 9.02 except to increase any percentage specified
herein or to provide that certain additional provisions of this Indenture or
the
Basic Documents cannot be modified or waived without the consent of the Holder
of each Note affected thereby;
(vi) modify
any of the provisions of this Indenture in such manner as to affect the
calculation of the amount of any payment of interest or principal due on any
Note on any Payment Date (including the calculation of any of the individual
components of such calculation); or
(vii) permit
the creation of any lien ranking prior to or on a parity with the lien of this
Indenture with respect to any part of the Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note of the
security provided by the lien of this Indenture; and provided, further, that
such action shall not, as evidenced by an Opinion of Counsel, cause the Issuer
to be subject to an entity level tax.
The
Indenture Trustee may in its discretion determine 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. The Indenture Trustee shall not be liable
for any such determination made in good faith.
It
shall
not be necessary for any Act of Noteholders under this Section 9.02 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Promptly
after the execution by the Issuer and the Indenture Trustee of any supplemental
indenture pursuant to this Section 9.02, the Indenture Trustee shall mail to
the
Holders of the Notes to which such amendment or supplemental indenture relates
a
notice setting forth in general terms the substance of such supplemental
indenture. Any failure of the 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 IX or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive,
and subject to Sections 6.01 and 6.02, shall be fully protected in relying
upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. 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 IX shall conform to the requirements of the Trust Indenture
Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
Section
9.06. Reference
in Notes to Supplemental Indentures.
Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture
may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE
X
MISCELLANEOUS
Section
10.01. Compliance
Certificates and Opinions, Etc.
(a)
Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee and to the Note Insurer (i) an Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have
been complied with, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) 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;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of each such 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;
(4) a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with; and
(5) if
the
Signer of such Certificate or Opinion is required to be Independent, the
Statement required by the definition of the term “Independent”.
(b) (i)
Prior
to the deposit of any Collateral or other property or securities with the
Indenture Trustee that is to be made the basis for the release of any property
or securities subject to the lien of this Indenture, the Issuer shall, in
addition to any obligation imposed in Section 10.01(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying
or stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such deposit) to the Issuer of the Collateral or other
property or securities to be so deposited.
(ii) Whenever
the Issuer is required to furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall also deliver to the
Indenture Trustee an Independent Certificate as to the same matters, if the
fair
value to the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set forth in
the
certificates delivered pursuant to clause (i) above and this clause (ii), is
____% or more of the Security Balances of the Notes, but such a certificate
need
not be furnished with respect to any securities so deposited, if the fair value
thereof to the Issuer as set forth in the related Officer’s Certificate is less
than $_________ or less than one percent of the Security Balances of the
Notes.
(iii) Whenever
any property or securities are to be released from the lien of this Indenture,
the Issuer shall also furnish to the Indenture Trustee an Officer’s Certificate
certifying or stating the opinion of each person signing such certificate as
to
the fair value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever
the Issuer is required to furnish to the Indenture Trustee an Officer’s
Certificate certifying or stating the opinion of any signer thereof as to the
matters described in clause (iii) above, the Issuer shall also furnish to the
Indenture Trustee an Independent Certificate as to the same matters if the
fair
value of the property or securities and of all other property, other than
property as contemplated by clause (v) below or securities released from the
lien of this Indenture since the commencement of the then-current calendar
year,
as set forth in the certificates required by clause (iii) above and this clause
(iv), equals ____% or more of the Security Balances of the Notes, but such
certificate need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related Officer’s
Certificate is less than $_______ or less than one percent of the then Security
Balances of the Notes.
(v) Notwithstanding
any provision of this Indenture, the Issuer may, without compliance with the
requirements of the other provisions of this Section 10.01, (A) collect, sell
or
otherwise dispose of the Mortgage Loans as and to the extent permitted or
required by the Basic Documents or (B) make cash payments out of the Payment
Account as and to the extent permitted or required by the Basic Documents [,
so
long as the Issuer shall deliver to the Indenture Trustee every six months,
commencing _____________, an Officer’s Certificate of the Issuer stating that
all the dispositions of Collateral described in clauses (A) or (B) above that
occurred during the preceding six calendar months were in the ordinary course
of
the Issuer’s business and that the proceeds thereof were applied in accordance
with the Basic Documents].
Section
10.02. Form
of Documents Delivered to Indenture Trustee.
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an Authorized Officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based
are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or
opinion of, or representations by, an officer or officers of the Seller, the
Issuer or the Administrator, stating that the information with respect to such
factual matters is in the possession of the Seller, the Issuer or the
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
VI.
Section
10.03. Acts
of Noteholders.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered to the
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 10.03.
(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 Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section
10.04. Notices,
Etc., to Indenture Trustee, Issuer, Note Insurer and Rating
Agencies.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Note holders 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 made, given, furnished or filed in writing to or
with
the Indenture Trustee at the Corporate Trust Office. The Indenture Trustee
shall
promptly transmit any notice received by it from the Noteholders to the Issuer,
or
(ii) the
Issuer by the Indenture Trustee or by any Noteholder shall be sufficient for
every purpose hereunder if in writing and mailed first-class, postage prepaid
to
the Issuer addressed to: [National City Mortgage Capital LLC [Mortgage] Loan
Trust], Series 20__-____, in care of [Name of Owner Trustee] _________________,
__________, ______________, Attention of
_________________________________________ with a copy to the Administrator
at
________________ Attention: __________ __________________________, or at any
other address previously furnished in writing to the Indenture Trustee by the
Issuer or the Administrator. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee, or
(iii) the
Note
Insurer by the Issuer, the Indenture Trustee or by any Noteholders shall be
sufficient for every purpose hereunder to in writing and mailed, first-class
postage pre-paid, or personally delivered or telecopied to: [Name of Note
Insurer], ________________, ________, _______________, Attention:
_________________, ___________________________, Telephone ______________.
Telecopier ______________. The Note Insurer shall promptly transmit any notice
received by it from the Issuer, the Indenture Trustee or the Noteholders to
the
Issuer or Indenture Trustee, as the case may be.
Notices
required to be given to the Rating Agencies by the Issuer, the Indenture Trustee
or the Owner Trustee shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, to (i) in the case of [Moody’s], at
the following address: [Xxxxx’x Investors Service, Inc., ABS Monitoring
Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000] and (ii) in the case
of
[Standard & Poor’s], at the following address: [Standard & Poor’s
Ratings Group, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention
of
Asset Backed Surveillance Department]; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other
parties.
Section
10.05. Notices
to Noteholders; Waiver.
Where
this Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if
in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by
such event, at such Person’s as it appears on the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by
mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given regardless
of
whether such notice is in fact actually received.
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Noteholders shall be filed with the 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 an Event of Default.
Section
10.06. Alternate
Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Administrator to such Holder, that is different from the methods provided for
in
this Indenture for such payments or notices. The Issuer shall furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with such
agreements.
Section
10.07. 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 xx.xx. 310 through 317 that impose duties on any Person
(including the provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether
or
not physically contained herein.
Section
10.08. Effect
of Headings.
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
Section
10.09. 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
10.10. Separability.
In case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
10.11. Benefits
of Indenture.
The
Note Insurer and its successors and assigns shall be a third-party beneficiary
to the provisions of this Indenture. 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, and the Noteholders, and any other party secured
hereunder, and any other Person with an ownership interest in any part of the
Trust Estate, any benefit or any legal or equitable right, remedy or claim
under
this Indenture.
Section
10.12. Legal
Holidays.
In any
case where the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
Section
10.13. GOVERNING
LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
10.14. Counterparts.
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
10.15. 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
10.16. Issuer
Obligation.
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
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or
agent of the Indenture Trustee or the Owner Trustee in its 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 individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any duties
or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to,
and
entitled to the benefits of, the terms and provisions of Article VI, VII and
VIII of the Trust Agreement.
Section
10.17. 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 Basic
Documents.
Section
10.18. Inspection.
The
Issuer agrees that, on reasonable prior notice, it shall 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 certified public accountants, and to discuss the Issuer’s
affairs, finances and accounts with the Issuer’s officers, employees, and
Independent certified public accountants, all at such reasonable times and
as
often as may be reasonably requested. The Indenture Trustee 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.
Section
10.19. Authority
of the Administrator.
Each of
the parties to this Indenture acknowledges that the Issuer and the Owner Trustee
have each appointed the Administrator to act as its agent to perform the duties
and obligations of the Issuer hereunder. Unless otherwise instructed by the
Issuer or the Owner Trustee, copies of all notices, requests, demands and other
documents to be delivered to the Issuer or the Owner Trustee pursuant to the
terms hereof shall be delivered to the Administrator. Unless otherwise
instructed by the Issuer or the Owner Trustee, all notices, requests, demands
and other documents to be executed or delivered, and any action to be taken,
by
the Issuer or the Owner Trustee pursuant to the terms hereof may be executed,
delivered and/or taken by the Administrator pursuant to the Administration
Agreement.
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused their names
to
be signed hereto by their respective officers thereunto duly authorized, all
as
of the day and year first above written.
[NATIONAL
CITY MORTGAGE CAPITAL LLC [MORTGAGE] LOAN TRUST], SERIES 20__-____,
as
Issuer
By:___________________________
not
in
its individual capacity
but
solely as Owner Trustee
By:
___________________________
Name:
_________________________
Title:
__________________________
____________________________
as
Indenture Trustee, as Certificate Paying
Agent
and
as Note Registrar
By:
______________________________
Name:____________________________
Title:_____________________________
_________________________
xxxxxx
accepts the appointment as
Certificate
Paying Agent pursuant to
Section
3.03 hereof and as Certificate
Registrar
pursuant to Section 4.02
hereof.
By:
_______________________________
Name:_____________________________
Title:______________________________
On
this
____ day of __________, before me personally appeared ______________, to me
known, who being by me duly sworn, did depose and say, that he resides at
_________________, __________________ _____, that he is the of the Owner
Trustee, one of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal affixed
to
said instrument is such corporate seal; that it was so affixed by order of
the
Board of Directors of said corporation; and that he signed his name thereto
by
like order.
_____________________
Notary
Public
[NOTARIAL
SEAL]
On
this
____ day of __________, before me personally appeared , to me known, who being
by me duly sworn, did depose and say, that he resides at , that he is the
______________ of ________________, as Indenture Trustee, one of the
corporations described in and which executed the above instrument; that he
knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by like
order.
_____________________
Notary
Public
[NOTARIAL
SEAL]
APPENDIX
A
DEFINITIONS
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan with a Mortgage Rate that is subject to periodic adjustment
calculated on the basis of the Index, plus an applicable Gross Margin. Each
Adjustable Rate Mortgage Loan is secured by a first lien on the related
Mortgaged Property.
Adjustment
Date:
As to
each Adjustable Rate Mortgage Loan, each date set forth in the related Mortgage
Note on which an adjustment to the interest rate on such Mortgage Loan becomes
effective.
Administrative
Fee:
The
amount of the fee payable to the Owner Trustee together with the amount of
the
premium payable to the Note Insurer, which will accrue at ______% per annum
based on the Note Principal Balance of the Notes.
Advance:
As to
any Mortgage Loan, any advance made by the Master Servicer, pursuant to Section
4.04 of the Servicing Agreement.
Affiliate:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
Appraised
Value:
The
appraised value of a Mortgaged Property based upon the lesser of (i) the
appraisal made at the time of the origination of the related Mortgage Loan,
or
(ii) the sales price of such Mortgaged Property at such time of origination.
With respect to a Mortgage Loan the proceeds of which were used to refinance
an
existing mortgage loan, the appraised value of the Mortgaged Property based
upon
the appraisal (as reviewed and approved by the Seller) obtained at the time
of
refinancing.
Assignment
Of Mortgage:
An
assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale of
the
Mortgage, which assignment, notice of transfer or equivalent instrument may
be
in the form of one or more blanket assignments covering Mortgages secured by
Mortgaged Properties located in the same county, if permitted by
law.
Authorized
Newspaper:
A
newspaper of general circulation in the _______ of ___________, The City of
___________, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or
holidays.
Authorized
Officer:
With
respect to the Issuer, any officer of the Owner Trustee who is authorized to
act
for the Owner Trustee in matters relating to the Issuer and who is identified
on
the list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
Available
Funds:
As to
any Payment Date, an amount equal to the amount on deposit in the Payment
Account on such Payment Date and available for distribution to the Noteholders
(minus, if the Notes have been declared due and payable following an Event
of
Default on such Payment Date, any amounts owed to the Indenture Trustee by
the
Issuer pursuant to Section 6.07 of the Indenture).
Available
Funds Cap Carry-Forward Amount:
With
respect to the Notes and any Payment Date, an amount equal to the sum of (x)
the
amount, if any, by which (a) the lesser of (1) the amount payable if clause
(i)
of the definition of Note Interest Rate is used to calculate interest and (2)
the amount payable if the Maximum Note Interest Rate is used to calculate
interest exceeds (b) the amount payable if clause (ii) of the definition of
Note
Interest Rate is used to calculate interest and (y) the interest accrued during
the prior Interest Period on the amount of any Available Funds Cap Carry-Forward
Amount immediately prior to such Payment Date, calculated on the basis of a
360-day year and the actual number of days elapsed and using the Note Interest
Rate applicable to such Payment Date minus (z) the aggregate of all amounts
distributed to the Noteholders on all prior Payment Dates pursuant to Section
3.05(v) of the Indenture.
Available
Funds Interest Rate:
As to
any Payment Date, a per annum rate equal to the lesser of (x) the fraction,
expressed as a percentage, the numerator of which is (i) an amount equal to
(A)
1/12 of the aggregate Principal Balance of the then outstanding Mortgage Loans
times the weighted average of the Expense Adjusted Mortgage Rates on the then
outstanding Mortgage Loans minus (B) the Administrative Fee for such Payment
Date, and the denominator of which is (ii) an amount equal to (A) the then
outstanding aggregate Note Principal Balance of the Notes multiplied by (B)
the
actual number of days elapsed in the related Interest Period divided by 360
and
(y) the Maximum Note Interest Rate.
Bankruptcy
Code:
The
Bankruptcy Code of 1978, as amended.
Basic
Documents:
The
Trust Agreement, the Certificate of Trust, the Indenture, the Mortgage Loan
Purchase Agreement, the Insurance Agreement, the Servicing Agreement, and the
other documents and certificates delivered in connection with any of the
above.
Beneficial
Owner:
With
respect to any Note, the Person who is the beneficial owner of such Note as
reflected on the books of the Depository or on the books of a Person maintaining
an account with such Depository (directly as a Depository Participant or
indirectly through a Depository Participant, in accordance with the rules of
such Depository).
Book-Entry
Notes:
Beneficial interests in the Notes, ownership and transfers of which shall be
made through book entries by the Depository as described in Section 4.06 of
the
Indenture.
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in the City of New York, Delaware or California or in the city
in
which the corporate trust offices of the Indenture Trustee or the Note Insurer
are located, are required or authorized by law to be closed.
Business
Trust Statute:
Chapter
38 of Title 12 of the Delaware Code, 12 DEL. Code ss.ss.3801 ET seq., as the
same may be amended from time to time.
Cash
Liquidation:
As to
any defaulted Mortgage Loan other than a Mortgage Loan as to which an REO
Acquisition occurred, a determination by the Master Servicer that it has
received all Insurance Proceeds, Liquidation Proceeds and other payments or
cash
recoveries which the Master Servicer reasonably and in good faith expects to
be
finally recoverable with respect to such Mortgage Loan.
Certificate
Distribution Account:
The
account or accounts created and maintained pursuant to Section 3.10(d) of the
Trust Agreement. The Certificate Distribution Account shall be an Eligible
Account.
Certificate
Paying Agent:
The
meaning specified in Section 3.10 of the Trust Agreement.
Certificate
Percentage Interest:
With
respect to each Certificate, the Certificate Percentage Interest on the face
thereof.
Certificate
Register:
The
register maintained by the Certificate Registrar in which the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates.
Certificate
Registrar:
Initially, the Indenture Trustee, in its capacity as Certificate Registrar,
or
any successor to the Indenture Trustee in such capacity.
Certificate
of Trust:
The
Certificate of Trust filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
Certificates:
The New
[National City Mortgage Capital LLC [Mortgage] Loan Trust], Trust Certificates,
Series _____- __, evidencing the beneficial ownership interest in the Issuer
and
executed by the Owner Trustee in substantially the form set forth in Exhibit
A
to the Trust Agreement.
Certificateholder:
The
Person in whose name a Certificate is registered in the Certificate Register.
Owners of Certificates that have been pledged in good faith may be regarded
as
Holders if the pledgee establishes to the satisfaction of the Indenture Trustee
or the Owner Trustee, as the case may be, the pledgee’s right so to act with
respect to such Certificates and that the pledgee is not the Issuer, any other
obligor upon the Certificates or any Affiliate of any of the foregoing
Persons.
Closing
Date:
______
__, 200_.
Code:
The
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
Collateral:
The
meaning specified in the Granting Clause of the Indenture.
Collection
Account:
The
account or accounts created and maintained pursuant to Section 3.06(d) of the
Servicing Agreement. The Collection Account shall be an Eligible
Account.
Combined
Loan-to-Value Ratio:
With
respect to any Mortgage Loan and any date, the percentage equivalent of a
fraction, the numerator of which is the Cut-Off Date Principal Balance of such
Mortgage Loan and the denominator of which is the outstanding principal balance
as of the date of the origination of such Mortgage Loan of any mortgage loan
or
mortgage loans that are secured by liens on the Mortgaged Property that are
senior or subordinate to the Mortgage and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Compensating
Interest:
With
respect to any Determination Date, an amount equal to the lesser of (i) the
aggregate amount of Prepayment Interest Shortfall for the related Prepayment
Period and (ii) the Servicing Fee for such Determination Date.
Converted
Mortgage Loan:
Any
Convertible Mortgage Loan with respect to which the interest rate borne by
such
Mortgage Loan has been converted from an adjustable interest rate to a fixed
interest rate.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan which by its terms grants to the related Mortgagor
the option to convert the interest rate borne by such Mortgage Loan from an
adjustable interest rate to a fixed interest rate.
Converting
Mortgage Loan:
Any
Convertible Mortgage Loan with respect to which the related Mortgagor has given
notice of his intent to convert from an adjustable interest rate to a fixed
interest rate and prior to the conversion of such Mortgage Loan.
Corporate
Trust Office:
With
respect to the Indenture Trustee, Certificate Registrar, Certificate Paying
Agent and Paying Agent, the principal corporate trust office of the Indenture
Trustee and Note Registrar at which at any particular time its corporate trust
business shall be administered, which office at the date of the execution of
this instrument is located at ____________, __________, ______, __________
_____, Attention: ________ ___ ______, except that for purposes of Section
4.02
of the Indenture and Section 3.09 of the Trust Agreement, such term shall
include the Indenture Trustee’s office or agency at _______________, ________,
________ _____, Attention: ___________ _________. With respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee at which
at
any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Trust Agreement is located at
________________________, ______ ____________, ________________________,
__________, ________ _____, Attention:
________________________________.
Cut-Off
Date:
With
respect to the Mortgage Loans, ______ 1, 200_.
Cut-Off
Date Principal Balance:
With
respect to any Mortgage Loan, the unpaid principal balance thereof as of the
opening of business on the last day of the related Due Period immediately prior
to the Cut-Off Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
such Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, except such a reduction constituting a Deficient Valuation
or any reduction that results in a permanent forgiveness of
principal.
Default:
Any
occurrence which is or with notice or the lapse of time or both would become
an
Event of Default.
Deficiency
Amount:
The
meaning provided in the Note Insurance Policy.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under the Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any scheduled Monthly Payment that
constitutes a permanent forgiveness of principal, which valuation or reduction
results from a proceeding under the Bankruptcy Code.
Definitive
Notes:
The
meaning specified in Section 4.06 of the Indenture.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced with an Eligible Substitute Mortgage
Loan.
Depositor:
National City Mortgage Capital LLC, a Delaware limited liability company, or
its
successor in interest.
Depository
or Depository Agency:
The
Depository Trust Company or a successor appointed by the Indenture Trustee
with
the approval of the Depositor. Any successor to the Depository shall be an
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act and the regulations of the Securities and Exchange Commission
thereunder.
Depository
Participant:
A
Person for whom, from time to time, the Depository effects book-entry transfers
and pledges of securities deposited with the Depository.
Determination
Date:
With
respect to any Payment Date, the 15th of the related month, or if the 15th
day
of such month is not a Business Day, the immediately preceding Business
Day.
Due
Date:
The
first day of the month of the related Payment Date.
Due
Period:
With
respect to any Mortgage Loan and Due Date, the period commencing on the second
day of the month preceding the month of such Payment Date (or, with respect
to
the first Due Period, the day following the Cut-Off Date) and ending on the
related Due Date.
Eligible
Account:
An
account that is any of the following: (i) maintained with a depository
institution the short term deposits of which have been rated by each Rating
Agency in its highest rating available, or (ii) an account or accounts in a
depository institution in which such accounts are fully insured to the limits
established by the FDIC, provided
that any
deposits not so insured shall, to the extent acceptable to the Note Insurer
and
each Rating Agency, as evidenced in writing, be maintained such that (as
evidenced by an Opinion of Counsel delivered to the Indenture Trustee, the
Note
Insurer and each Rating Agency) the Indenture Trustee have a claim with respect
to the funds in such account or a perfected first security interest against
any
collateral (which shall be limited to Eligible Investments) securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained, or (iii) in the
case of the Collection Account, either (A) a trust account or accounts
maintained at the Corporate Trust Department of the Indenture Trustee or (B)
an
account or accounts maintained at the Corporate Trust Department of the
Indenture Trustee, as long as its short term debt obligations are rated P-1
by
Xxxxx’x and A-1 by Standard & Poor’s or better and its long term debt
obligations are rated A2 by Xxxxx’x and A by Standard & Poor’s or better, or
(iv) in the case of the Collection Account and the Payment Account, a trust
account or accounts maintained in the corporate trust division of the Indenture
Trustee, or (v) an account or accounts of a depository institution acceptable
to
each Rating Agency as evidenced in writing by each Rating Agency that use of
any
such account as the Collection Account or the Payment Account will not reduce
the rating assigned to any of the Securities by such Rating Agency below
investment grade without taking into account the Note Insurance Policy and
acceptable to the Note Insurer as evidenced in writing.
Eligible
Investments:
One or
more of the following:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, the Federal Home Mortgage Corporation, the Federal National Mortgage
Association, the Federal Home Loan Banks or any agency or instrumentality of
the
United States of America the obligations of which are backed by the full faith
and credit of the United States of America;
(ii) (A)
demand and time deposits in, certificates of deposit of, banker’s acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Indenture Trustee or its agent acting in their respective
commercial capacities) incorporated under the laws of the United States of
America or any State thereof and subject to supervision and examination by
federal and/or state authorities, so long as at the time of such investment
or
contractual commitment providing for such investment, such depository
institution or trust company has a short term unsecured debt rating in the
highest available rating category of each of the Rating Agencies and provided
that each such investment has an original maturity of no more than 365 days,
and
(B) any other demand or time deposit or deposit which is fully insured by the
Federal Deposit Insurance Corporation;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as a principal) rated “A” or higher by S&P and A2 or
higher by Xxxxx’x; provided, however, that collateral transferred pursuant to
such repurchase obligation must (A) be valued weekly at current market price
plus accrued interest, (B) pursuant to such valuation, equal, at all times,
105%
of the cash transferred by the Indenture Trustee in exchange for such collateral
and (C) be delivered to the Indenture Trustee or, if the Indenture Trustee
is
supplying the collateral, an agent for the Indenture Trustee, in such a manner
as to accomplish perfection of a security interest in the collateral by
possession of certificated securities.
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any State thereof which has
a
long term unsecured debt rating in the highest available rating category of
each
of the Rating Agencies at the time of such investment;
(v) commercial
paper having an original maturity of less than 365 days and issued by an
institution having a short term unsecured debt rating in the highest available
rating category of each of the Rating Agencies at the time of such
investment;
(vi) a
guaranteed investment contract approved by each of the Rating Agencies and
the
Note Insurer and issued by an insurance company or other corporation having
a
long term unsecured debt rating in the highest available rating category of
each
of the Rating Agencies at the time of such investment;
(vii) money
market funds having ratings in the highest available long-term rating category
of each of the Rating Agencies at the time of such investment; any such money
market funds which provide for demand withdrawals being conclusively deemed
to
satisfy any maturity requirement for Eligible Investments set forth in the
Indenture; and
(viii) any
investment approved in writing by each of the Rating Agencies and the Note
Insurer.
The
Indenture Trustee may purchase from or sell to itself or an affiliate, as
principal or agent, the Eligible Investments listed above.
provided,
however,
that
each such instrument shall be acquired in an arm’s length transaction and no
such instrument shall be an Eligible Investment if it represents, either (1)
the
right to receive only interest payments with respect to the underlying debt
instrument or (2) the right to receive both principal and interest payments
derived from obligations underlying such instrument and the principal and
interest payments with respect to such instrument provide a yield to maturity
greater than 120% of the yield to maturity at par of such underlying
obligations; provided further,
however,
that
each such instrument acquired shall not be acquired at a price in excess of
par.
Eligible
Substitute Mortgage Loan:
A
Mortgage Loan substituted by the Seller for a Deleted Mortgage Loan which must,
on the date of such substitution, as confirmed in an Officer’s Certificate
delivered to the Indenture Trustee, (i) have an outstanding principal balance,
after deduction of the principal portion of the monthly payment due in the
month
of substitution (or in the case of a substitution of more than one Mortgage
Loan
for a Deleted Mortgage Loan, an aggregate outstanding principal balance, after
such deduction), not in excess of the outstanding principal balance of the
Deleted Mortgage Loan (the amount of any shortfall to be deposited by the Seller
in the Collection Account in the month of substitution); (ii) comply with each
representation and warranty set forth in clauses (ii) through (lxxvii) of
Section 3.1(b) of the Mortgage Loan Purchase Agreement other than clauses (ii),
(iii), (v)-(xi), (xiii)-(xiv), (l), (lxvi), (lxviii), (lxxi)-(lxxiii); (iii)
have a Mortgage Rate and Gross Margin no lower than and not more than 1% per
annum higher than the Mortgage Rate and Gross Margin, respectively, of the
Deleted Mortgage Loan as of the date of substitution; (iv) have a Combined
Loan-to-Value Ratio at the time of substitution no higher than that of the
Deleted Mortgage Loan at the time of substitution; (v) have a remaining term
to
stated maturity not greater than (and not more than one year less than) that
of
the Deleted Mortgage Loan and (vi) not be 30 days or more
delinquent.
ERISA:
The Employee Retirement Income Security Act of 1974, as amended.
Event
of Default:
With
respect to the Indenture, any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be
effected by operation of law or pursuant to any judgment, decree or order of
any
court or any order, rule or regulation of any administrative or governmental
body):
(i) a
default
in (a) the payment of the Interest Payment Amount or the Principal Payment
Amount with respect to a Payment Date on such Payment Date or (b) the
Subordination Increase Amount or the Available Funds Cap Carry-Forward Amount,
but only, with respect to clause (b), to the extent funds are available to
make
such payment as provided in the Indenture; or
(ii) the
failure by the Issuer on the Final Scheduled Payment Date to reduce the Note
Principal Balance to zero; or
(iii) there
occurs a default in the observance or performance of any covenant or agreement
of the Issuer made in the Indenture, or any representation or warranty of the
Issuer made in the Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been incorrect in
any
material respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or condition in
respect of which such representation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days after there shall
have been given, by registered or certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Note Insurer, or
if a
Note Insurer Default exists the Holders of at least 25% of the Outstanding
Amount 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; or
(iv) there
occurs the filing of a decree or order for relief by a court having jurisdiction
in the premises in respect of the Issuer or any substantial part of the Trust
Estate in an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Trust Estate, or
ordering the winding-up or liquidation of the Issuer’s affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(v) there
occurs the commencement by the Issuer of a voluntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter
in
effect, or the consent by the Issuer to the entry of an order for relief in
an
involuntary case under any such law, or the consent by the Issuer to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer or for any substantial
part of the assets of the Trust Estate, 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.
Event
of Servicer Termination:
With
respect to the Servicing Agreement, a Servicing Default as defined in Section
6.01 of the Servicing Agreement.
Excess
Subordination Amount:
With
respect to any Payment Date, the excess, if any, of (a) the Subordination Amount
that would apply on such Payment Date after taking into account all
distributions to be made on such Payment Date (exclusive of any reductions
thereto attributable to Subordination Reduction Amounts on such Payment Date)
over (b) the Required Subordination Amount for such Payment Date.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Expense
Adjusted Mortgage Rate:
For any
Mortgage Loan, the rate equal to the then applicable Mortgage Rate thereon
minus
the sum of (i) the Minimum Spread and (ii) the Servicing Fee Rate and (iii)
the
Indenture Trustee Fee Rate.
Expenses:
The
meaning specified in Section 7.02 of the Trust Agreement.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHLMC:
The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final
Scheduled Payment Date:
The
Payment Date occurring in _________, _____.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan with a fixed rate of interest.
FNMA:
The
Federal National Mortgage Association, or any successor thereto.
Foreclosure
Profit:
With
respect to a Liquidated Mortgage Loan, the amount, if any, by which (i) the
aggregate of its Net Liquidation Proceeds exceeds (ii) the related Principal
Balance (plus accrued and unpaid interest thereon at the applicable Mortgage
Rate from the date interest was last paid through the date of receipt of the
final Liquidation Proceeds) of such Liquidated Mortgage Loan immediately prior
to the final recovery of its Liquidation Proceeds.
Xxxxx:
Pledge,
bargain, sell, warrant, alienate, remise, release, convey, assign, transfer,
create, and xxxxx x xxxx upon and a security interest in and right of set-off
against, deposit, set over and confirm pursuant to the Indenture. A Grant of
the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of
such
collateral or other agreement or instrument and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the granting party or otherwise, and generally to
do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the percentage set forth as the
“Gross Margin” for such Mortgage Loan on the Mortgage Loan Schedule, as adjusted
from time to time in accordance with the terms of the Servicing
Agreement.
Indemnified
Party:
The
meaning specified in Section 7.02 of the Trust Agreement.
Indenture:
The
indenture dated as of ______ 1, ____, between the Issuer, as debtor, and the
Indenture Trustee, as Indenture Trustee.
Indenture
Trustee:
_________________________________________, a national banking association,
and
its successors and assigns or any successor indenture trustee appointed pursuant
to the terms of the Indenture.
Indenture
Trustee Fee:
With
respect to each Mortgage Loan and any Payment Date the product of (i) the
Indenture Trustee Fee Rate divided by 12 and (ii) the Principal Balance of
such
Mortgage Loans as of such date.
Indenture
Trustee Fee Rate:
_____%
per annum.
Independent:
When
used with respect to any specified Person, the Person (i) is in fact independent
of the Issuer, any other obligor on the Notes, the Seller, the Issuer, the
Depositor and any Affiliate of any of the foregoing Persons, (ii) does not
have
any direct financial interest or any material indirect financial interest in
the
Issuer, any such other obligor, the Seller, the Issuer, the Depositor or any
Affiliate of any of the foregoing Persons and (iii) is not connected with the
Issuer, any such other obligor, the Seller, the Issuer, the Depositor or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Independent
Certificate:
A
certificate or opinion to be delivered to the Indenture Trustee under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 10.01 of the Indenture, made by an Independent appraiser
or other expert appointed by an Issuer Order and approved by the Indenture
Trustee in the exercise of reasonable care, 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.
Index:
With
respect to any Adjustable Rate Mortgage Loan, index for the adjustment of the
Mortgage Rate set forth as such on the related Mortgage Note.
Initial
Note Principal Balance:
With
respect to the Notes, $______________.
Initial
Subservicer:
_____________, a __________ corporation.
Insolvency
Event:
With
respect to a specified Person, (a) the filing of a decree or order for relief
by
a court having jurisdiction in the premises in respect of such Person or any
substantial part of its property in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or
similar official for such Person or for any substantial part of its property,
or
ordering the winding-up or liquidation of such Person’s affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or (b) the commencement by such Person of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by such Person to the entry of an order for relief in
an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for
any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due or the admission by such Person in
writing (as to which the Indenture Trustee shall have notice) of its inability
to pay its debts generally, or the adoption by the Board of Directors or
managing member of such Person of a resolution which authorizes action by such
Person in furtherance of any of the foregoing.
Insurance
Agreement:
The
insurance and reimbursement agreement dated as of _____ 1, _____, among the
Master Servicer, the Seller, the Depositor, the Issuer, Indenture Trustee and
the Note Insurer, including any amendments and supplements thereto.
Insurance
Proceeds:
Proceeds paid by any insurer (other than the Note Insurer) pursuant to any
insurance policy covering a Mortgage Loan which are required to be remitted
to
the Master Servicer, or amounts required to be paid by the Master Servicer
pursuant to the Servicing Agreement, net of any component thereof (i) covering
any expenses incurred by or on behalf of the Master Servicer in connection
with
obtaining such proceeds, (ii) that is applied to the restoration or repair
of
the related Mortgaged Property, (iii) released to the Mortgagor in accordance
with the Master Servicer’s normal servicing procedures or (iv) required to be
paid to any holder of a mortgage senior to such Mortgage Loan.
Insured
Payment:
Shall
have the meaning set forth in the Note Insurance Policy.
Interest
Determination Date:
With
respect to any Interest Period, the second London Business Day preceding the
commencement of such Interest Period.
Interest
Payment Amount:
With
respect to any Payment Date, an amount equal to interest accrued during the
related Interest Period on the Note Principal Balance thereof at the
then-applicable Note Interest Rate, minus any Prepayment Interest Shortfalls
and
Relief Act Shortfalls to the extent not covered by the Master Servicer by
Compensating Interest for such Payment Date.
Interest
Period:
With
respect to any Payment Date other than the first Payment Date, the period
beginning on the preceding Payment Date and ending on the day preceding such
Payment Date, and in the case of the first Payment Date, the period beginning
on
the Closing Date and ending on the day preceding the first Payment
Date.
Interest
Rate Adjustment Date:
With
respect to each Mortgage Loan, the date or dates on which the Mortgage Rate
is
adjusted in accordance with the related Mortgage Note.
Issuer:
[National City Mortgage Capital LLC [Mortgage] Loan Trust], a Delaware business
trust, or its successor in interest.
Issuer
Request:
A
written order or request signed in the name of the Issuer by any one of its
Authorized Officers and approved in writing by the Note Insurer, so long as
no
Note Insurer Default exists and delivered to the Indenture Trustee.
LIBOR
Business Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in the State of New York, Delaware or California, or in the city
of
London, England are required or authorized by law to be closed.
Lien:
Any
mortgage, deed of trust, pledge, conveyance, hypothecation, assignment,
participation, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC (other than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing;
provided,
however,
that
any assignment pursuant to Section 6.02 of the Servicing Agreement shall not
be
deemed to constitute a Lien.
Lifetime
Rate Cap:
With
respect to each Mortgage Loan with respect to which the related Mortgage Note
provides for a lifetime rate cap, the maximum Mortgage Rate permitted over
the
life of such Mortgage Loan under the terms of such Mortgage Note, as set forth
on the Mortgage Loan Schedule and initially as set forth on Exhibit A to the
Servicing Agreement.
Liquidated
Mortgage Loan:
With
respect to any Payment Date, any Mortgage Loan in respect of which the Master
Servicer has determined, in accordance with the servicing procedures specified
in the Servicing Agreement, as of the end of the related Prepayment Period
that
substantially all Liquidation Proceeds which it reasonably expects to recover
with respect to the disposition of the related REO Property have been
recovered.
Liquidation
Expenses:
Out-of-pocket expenses (exclusive of overhead) which are incurred by or on
behalf of the Master Servicer in connection with the liquidation of any Mortgage
Loan and not recovered under any insurance policy, such expenses including,
without limitation, legal fees and expenses, any unreimbursed amount expended
(including, without limitation, amounts advanced to correct defaults on any
mortgage loan which is senior to such Mortgage Loan and amounts advanced to
keep
current or pay off a mortgage loan that is senior to such Mortgage Loan)
respecting the related Mortgage Loan and any related and unreimbursed
expenditures for real estate property taxes or for property restoration,
preservation or insurance against casualty loss or damage.
Liquidation
Proceeds:
Proceeds (including Insurance Proceeds but not including amounts drawn under
the
Note Insurance Policy) received in connection with the liquidation of any
Mortgage Loan or related REO Property, whether through trustee’s sale,
foreclosure sale or otherwise.
Loan
Year:
With
respect to any Mortgage Loan, the one year period commencing on the day
succeeding the origination of such Mortgage Loan and ending on the anniversary
date of such Mortgage Loan, and each annual period thereafter.
London
Business Day:
Any day
on which banks in the City of London, England are open and conducting
transactions in United States dollars.
Lost
Note Affidavit:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
permanently lost or destroyed and has not been replaced, an affidavit from
the
Seller certifying that the original Mortgage Note has been lost, misplaced
or
destroyed (together with a copy of the related Mortgage Note).
Master
Servicer:
_______________________, a __________ corporation, and its successors and
assigns.
Master
Servicing Fee:
With
respect to each Mortgage Loan and any Payment Date the product of (i) the Master
Servicing Fee Rate divided by 12 and (ii) the Principal Balance of such Mortgage
Loans as of such date.
Master
Servicing Fee Rate:
With
respect to each Mortgage Loan, ____% per annum.
Maximum
Note Interest Rate:
With
respect to any Payment Date, the per annum rate equal to the fraction, expressed
as a percentage, the numerator of which is (i) an amount equal to (A) 1/12
of
the aggregate Principal Balance of the then outstanding Mortgage Loans times
the
weighted average of the Expense Adjusted Maximum Mortgage Rates on the then
outstanding Mortgage Loans minus (B) the Administrative Fee for such Payment
Date, and the denominator of which is (ii) an amount equal to (A) the aggregate
Note Principal Balance of the Notes multiplied by (B) the actual number of
days
elapsed in the related Interest Period divided by 360.
Maximum
Mortgage Rate:
With
respect to each Adjustable Rate Mortgage Loan, the maximum Mortgage
Rate.
Minimum
Mortgage Rate:
With
respect to each Adjustable Rate Mortgage Loan, the minimum Mortgage
Rate.
Minimum
Spread:
____%
per annum.
Monthly
Payment:
With
respect to any Mortgage Loan (including any REO Property) and any Due Date,
the
payment of principal and interest due thereon in accordance with the
amortization schedule at the time applicable thereto (after adjustment, if
any,
for partial Prepayments and for Deficient Valuations occurring prior to such
Due
Date but before any adjustment to such amortization schedule by reason of any
bankruptcy, other than a Deficient Valuation, or similar proceeding or any
moratorium or similar waiver or grace period).
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first or second lien
on
an estate in fee simple interest in real property securing a Mortgage
Loan.
Mortgage
File:
The
file containing the Related Documents pertaining to a particular Mortgage Loan
and any additional documents required to be added to the Mortgage File pursuant
to the Mortgage Loan Purchase Agreement or the Servicing Agreement.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement, dated as of the Cut-Off Date, between the
Seller, as seller, and the Purchaser, as purchaser, with respect to the Mortgage
Loans, dated as of ______ 1, _____.
Mortgage
Loan Schedule:
With
respect to any date, the schedule of Mortgage Loans held by the Issuer on such
date. The initial schedule of Mortgage Loans as of the Cut-Off Date is the
schedule set forth in Exhibit A of the Servicing Agreement, which schedule
sets
forth as to each Mortgage Loan
(i) the
loan
number and name of the Mortgagor;
(ii) the
street address, city, state and zip code of the Mortgaged Property;
(iii) the
Mortgage Rate;
(iv) the
Maximum Rate;
(v) the
maturity date;
(vi) the
original principal balance;
(vii) the
first
payment date;
(viii) the
type
of Mortgaged Property;
(ix) the
Monthly Payment in effect as of the Cut-Off Date;
(x) the
Cut-off Date Principal Balance;
(xi) the
occupancy status;
(xii) the
purpose of the Mortgage Loan;
(xiii) the
Appraised Value of the Mortgaged Property;
(xiv) the
original term to maturity;
(xv) the
paid-through date of the Mortgage Loan;
(xvi) the
Loan-to-Value Ratio; and
| (xvii) |
whether
or not the Mortgage Loan was underwritten pursuant to a limited
documentation program.
|
The
Mortgage Loan Schedule shall also set forth the total of the amounts described
under (ix) above for all of the Mortgage Loans.
Mortgage
Loans:
At any
time, collectively, all Mortgage Loans that have been sold to the Depositor
under the Mortgage Loan Purchase Agreement or substituted for pursuant to
Section 2.1 and 3.1 of the Mortgage Loan Purchase Agreement and transferred
and
conveyed to the Issuer, in each case together with the Related Documents, and
that remain subject to the terms thereof.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage
Rate:
With
respect to any Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan.
Mortgaged
Property:
The
underlying property, including real property and improvements thereon, securing
a Mortgage Loan.
Mortgagor:
The
obligor or obligors under a Mortgage Note.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, Liquidation Proceeds net of Liquidation
Expenses.
Net
Monthly Excess Cashflow:
For any
Payment Date, the amount of Available Funds and any Insured Payment remaining
after distributions pursuant to clauses (i) through (iii) of Section 3.05 of
the
Indenture (minus any Insured Payment and any Subordination Reduction
Amount).
Net
Mortgage Rate:
With
respect to any Mortgage Loan and any day, the related Mortgage Rate less the
sum
of the related Servicing Fee Rate, the Administrative Fee Rate and the Indenture
Trustee Fee Rate.
Nonrecoverable
Advance:
Any
advance (i) which was previously made or is proposed to be made by the Master
Servicer; and (ii) which, in the good faith judgment of the Master Servicer,
will not or, in the case of a proposed advance, would not, be ultimately
recoverable by the Master Servicer from Liquidation Proceeds, Insurance Proceeds
or future payments on any Mortgage Loan.
Note
Insurance Policy:
The
bond guaranty insurance policy number ____, issued by the Note Insurer to the
Indenture Trustee for the benefit of the Noteholders.
Note
Insurer:
_______________, a ________- insurance company, any successor thereto or any
replacement bond insurer substituted pursuant to Section 3.29 of the
Indenture.
Note
Insurer Default:
The
existence and continuance of any of the following: (a) a failure by the Note
Insurer to make a payment required under the Note Insurance Policy in accordance
with its terms; or (b)(i) the Note Insurer (A) files any petition or commences
any case or proceeding under any provision or chapter of the Bankruptcy Code
or
any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (B) makes a general assignment
for the benefit of its creditors, or (C) has an order for relief entered against
it under the Bankruptcy Code or any other similar federal or state law relating
to insolvency, bankruptcy, rehabilitation, liquidation or reorganization which
is final and nonappealable; or (ii) a court of competent jurisdiction, the
New
York Department of Insurance or other competent regulatory authority enters
a
final and nonappealable order, judgment or decree (A) appointing a custodian,
trustee, agent or receiver for the Note Insurer or for all or any material
portion of its property or (B) authorizing the taking of possession by a
custodian, trustee, agent or receiver of the Note Insurer (or the taking of
possession of all or any material portion of the property of the Note
Insurer).
Note
Interest Rate:
With
respect to each Payment Date after the first Payment Date, a floating rate
equal
to the lesser of (i) with respect to each Payment Date up to and including
the
Payment Date in _________ _____, One-Month LIBOR plus ____%, and with respect
to
each Payment Date thereafter, One-Month LIBOR plus ____% and (ii) the Available
Funds Interest Rate with respect to such Payment Date. The Note Interest Rate
for the first Payment Date will equal ____% per annum.
Note
Owner:
The
Beneficial Owner of a Note.
Note
Percentage:
With
respect to any Payment Date and any Note, the ratio expressed as a percentage
of
the Note Principal Balance of such Note to the aggregate Note Principal Balance
of all Notes immediately prior to such Payment Date.
Note
Principal Balance:
With
respect to any Note, the initial Note Principal Balance thereof minus all
amounts distributed in respect of principal with respect to such
Note.
Note
Register:
The
register maintained by the Note Registrar in which the Note Registrar shall
provide for the registration of Notes and of transfers and exchanges of
Notes.
Note
Registrar:
The
Indenture Trustee, in its capacity as Note Registrar.
Noteholder:
The
Person in whose name a Note is registered in the Note Register, except that,
any
Note registered in the name of the Depositor, the Issuer or the Indenture
Trustee or any Affiliate of any of them shall be deemed not to be outstanding
and the registered holder will not be considered a Noteholder or holder for
purposes of giving any request, demand, authorization, direction, notice,
consent or waiver under the Indenture or the Trust Agreement provided that,
in
determining whether the Indenture Trustee shall be protected in relying upon
any
such request, demand, authorization, direction, notice, consent or waiver,
only
Notes that the Indenture Trustee or the Owner Trustee knows to be so owned
shall
be so disregarded. Owners of Notes that have been pledged in good faith may
be
regarded as Holders if the pledgee establishes to the satisfaction of the
Indenture Trustee or the Owner Trustee 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 or any Affiliate of any of the foregoing Persons. Any bonds
on
which payments are made under the Note Insurance Policy shall be deemed
Outstanding until the Note Insurer has been reimbursed with respect thereto
and
the Note Insurer shall be deemed the Noteholder thereof to the extent of such
unreimbursed payment.
Notes:
The
Notes designated as the “Notes” in the Indenture.
Officer’s
Certificate:
With
respect to the Master Servicer, a certificate signed by the President, Managing
Director, a Director, a Vice President or an Assistant Vice President, of the
Master Servicer and delivered to the Indenture Trustee. With respect to the
Issuer, a certificate signed by any Authorized Officer of the Issuer, under
the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 10.01 of the Indenture, and delivered to the Indenture
Trustee. Unless otherwise specified, any reference in the Indenture to an
Officer’s Certificate shall be to an Officer’s Certificate of any Authorized
Officer of the Issuer.
One-Month
Libor:
With
respect to any Interest Period, the rate determined by the Indenture Trustee
on
the related Interest Determination Date on the basis of the offered rates of
the
Reference Banks for one-month United States dollar deposits, as such rates
appear on the Reuters Screen LIBO Page, as of 11:00 a.m. (London time) on such
Interest Determination Date. On each Interest Determination Date, One-Month
LIBOR for the related Interest Period will be established by the Indenture
Trustee as follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, One-Month LIBOR for the related Interest Period shall be
the
arithmetic mean of such offered quotations (rounded upwards if necessary to
the
nearest whole multiple of 1/16%).
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, One-Month LIBOR for the related Interest Period shall be
the
higher of (i) One-Month LIBOR as determined on the previous Interest
Determination Date and (ii) the Reserve Interest Rate.
Opinion
of Counsel:
A
written opinion of counsel acceptable to Note Insurer who may be in-house
counsel for the Master Servicer if acceptable to the Indenture Trustee, the
Note
Insurer and the Rating Agencies or counsel for the Depositor, as the case may
be.
Original
Specified Subordination Amount:
An
amount equal to ____% of the aggregate Principal Balance of the Mortgage Loans
as of the Cut-Off Date.
Original
Value:
Except
in the case of a refinance Mortgage Loan, the lesser of the Appraised Value
or
sales price of Mortgaged Property at the time a Mortgage Loan is closed, and
for
a refinance Mortgage Loan, the Original Value is the value of such property
set
forth in an appraisal acceptable to the Master Servicer.
Outstanding:
With
respect to the Notes, as of the date of determination, all Notes theretofore
executed, authenticated and delivered under this Indenture except:
(i) Notes
theretofore canceled by the Note Registrar or delivered to the Indenture Trustee
for cancellation; and
(ii) Notes
in
exchange for or in lieu of which other Notes have been executed, authenticated
and delivered pursuant to the Indenture unless proof satisfactory to the
Indenture Trustee is presented that any such Notes are held by a holder in
due
course;
all
Notes
that have been paid with funds provided under the Note Insurance Policy shall
be
deemed to be Outstanding until the Note Insurer has been reimbursed with respect
thereto.
Owner
Trust:
[National City Mortgage Capital LLC [Mortgage] Loan Trust], Series 20__-____
to
be created pursuant to the Trust Agreement.
Owner
Trust Estate:
The
corpus of the Issuer created by the Trust Agreement which consists of items
in
Section 2.01 of the Trust Agreement.
Owner
Trustee:
________________________ and its successors and assigns or any successor owner
trustee appointed pursuant to the terms of the Trust Agreement.
Owner
Trustee Fee:
Owner
Trustee Fee Rate:
______%
per annum.
Paying
Agent:
Any
paying agent or co-paying agent appointed pursuant to Section 3.03 of the
Indenture, which initially shall be the Indenture Trustee.
Payment
Account:
The
account established by the Indenture Trustee pursuant to Section 8.02 of the
Indenture and Section 4.03 of the Servicing Agreement. The Payment Account
shall
be an Eligible Account.
Payment
Date:
The
[25th] day of each month, or if such day is not a Business Day, then the next
Business Day.
Percentage
Interest:
With
respect to any Note, the percentage obtained by dividing the Note Principal
Balance of such Note by the aggregate of the Note Principal Balances of all
Notes. With respect to any Certificate, the percentage on the face
thereof.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Pool
Balance:
With
respect to any date, the aggregate of the Principal Balances of all Mortgage
Loans as of such date.
Preference
Amount:
Any
amount previously distributed to an Owner on the Notes that is recoverable
and
sought to be recovered as a voidable preference by a trustee in bankruptcy
pursuant to the United States Bankruptcy Code (11 U.S.C.), as amended from
time
to time, in accordance with a final nonappealable order of a court having
competent jurisdiction.
Premium
Amount:
The
amount of premium due to the Note Insurer in accordance with the terms of the
Insurance Agreement.
Prepayment
Interest Shortfall:
As to
any Payment Date and any Mortgage Loan (other than a Mortgage Loan relating
to
an REO Property) that was the subject of (a) a Principal Prepayment in full
during the related Prepayment Period, an amount equal to the excess of interest
accrued during the related Prepayment Period at the Net Mortgage Rate on the
Principal Balance of such Mortgage Loan over the amount of interest (adjusted
to
the Net Mortgage Rate) paid by the Mortgagor for such Prepayment Period to
the
date of such Principal Prepayment in full or (b) a partial Prepayment during
the
prior calendar month, an amount equal to interest accrued during the related
Prepayment Period at the Net Mortgage Rate on the amount of such partial
Prepayment.
Prepayment
Period:
As to
any Payment Date, the calendar month preceding the month of
distribution.
Primary
Insurance Policy:
Each
primary policy of mortgage guaranty insurance issued by a Qualified Insurer
or
any replacement policy therefor.
Principal
Balance:
With
respect to any Mortgage Loan or related REO Property, at any given time, (i)
the
Cut-off Date Principal Balance of the Mortgage Loan, minus (ii) the sum of
(a)
the principal portion of the Monthly Payments due with respect to such Mortgage
Loan or REO Property during each Due Period ending prior to the most recent
Payment Date which were received or with respect to which an Advance was made,
and (b) all Principal Prepayments with respect to such Mortgage Loan or REO
Property, and all Insurance Proceeds, Liquidation Proceeds and REO Proceeds,
to
the extent applied by the Master Servicer as recoveries of principal in
accordance with the Servicing Agreement with respect to such Mortgage Loan
or
REO Property, and (c) any Realized Loss with respect thereto for any previous
Payment Date.
Principal
Payment Amount:
With
respect to any Payment Date (a) other than the Final Scheduled Payment Date,
and
the first Payment Date following any acceleration of the Notes following an
Event of Default, the lesser of (a) the sum of the Available Funds remaining
after distributions pursuant to clause (i) of Section 3.05 of the Indenture
and
any portion of any Insured Payment for such Payment Date representing a
Subordination Deficit and (b) the sum of:
(1) the
principal portion of all Monthly Payments received during the related Due Period
or advanced on each Mortgage Loan;
(2) the
Principal Balance of any Mortgage Loan repurchased during the related Prepayment
Period (or deemed to have been so repurchased) pursuant to the Mortgage Loan
Purchase Agreement or Section 3.18 of the Servicing Agreement and the amount
of
any Substitution Adjustment Amounts during the related Prepayment
Period;
(3) the
principal portion of all other unscheduled collections (including, without
limitation, Principal Prepayments in full, partial Prepayments, Insurance
Proceeds, Liquidation Proceeds and REO Proceeds) received during the related
Prepayment Period to the extent applied by the Master Servicer as payments
or
recoveries of principal of the related Mortgage Loan;
(4) any
Insured Payment made with respect to any Subordination Deficit; and
minus
(5) the
amount of any Subordination Reduction Amount for such Payment Date;
and
(b)
with respect to the Final Scheduled Payment Date, and the first Payment Date
following any acceleration of the Notes following an Event of Default, the
amount necessary to reduce the Note Principal Balance to zero.
Principal
Prepayment:
Any
payment of principal made by the Mortgagor on a Mortgage Loan which is received
in advance of its scheduled Due Date and which is not accompanied by an amount
of interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Purchase
Price:
The
meaning specified in Section 2.2(a) of the Mortgage Loan Purchase
Agreement.
Purchaser:
_______________________, a ________ corporation, and its successors and
assigns.
Qualified
Insurer:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, approved as an insurer by the Master Servicer
and
as a FNMA-approved mortgage insurer.
Rating
Agency:
Any
nationally recognized statistical rating organization, or its successor, that
rated the Notes at the request of the Depositor at the time of the initial
issuance of the Notes. Initially, Xxxxx’x or Standard & Poor’s. If such
organization or a successor is no longer in existence, “Rating Agency” shall be
such nationally recognized statistical rating organization, or other comparable
Person, designated by the Note Insurer so long as no Note Insurer Default
exists, notice of which designation shall be given to the Indenture Trustee.
References herein to the highest short term unsecured rating category of a
Rating Agency shall mean A-1 or better in the case of Standard & Poor’s and
P-1 or better in the case of Xxxxx’x and in the case of any other Rating Agency
shall mean such equivalent ratings. References herein to the highest long-term
rating category of a Rating Agency shall mean “AAA” in the case of Standard
& Poor’s and “Aaa” in the case of Xxxxx’x and in the case of any other
Rating Agency, such equivalent rating.
Realized
Loss:
With
respect to each Mortgage Loan (or REO Property) as to which a Cash Liquidation
or REO Disposition has occurred, an amount (not less than zero) equal to (i)
the
Principal Balance of the Mortgage Loan (or REO Property) as of the date of
Cash
Liquidation or REO Disposition, plus (ii) interest (and REO Imputed Interest,
if
any) at the Net Mortgage Rate from the Due Date as to which interest was last
paid or advanced to Noteholders up to the last day of the month in which the
Cash Liquidation (or REO Disposition) occurred on the Principal Balance of
such
Mortgage Loan (or REO Property) outstanding during each Due Period that such
interest was not paid or advanced, minus (iii) the proceeds, if any, received
during the month in which such Cash Liquidation (or REO Disposition) occurred,
to the extent applied as recoveries of interest at the Net Mortgage Rate and
to
principal of the Mortgage Loan, net of the portion thereof reimbursable to
the
Master Servicer or any Subservicer with respect to related Advances or expenses
as to which the Master Servicer or Subservicer is entitled to reimbursement
thereunder but which have not been previously reimbursed. With respect to each
Mortgage Loan which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the object of a Debt Service Reduction, the
amount of such Debt Service Reduction.
Record
Date:
With
respect to the Notes and any Payment Date, the last day of the calendar month
preceding such Payment Date.
Reference
Banks:
Bankers
Trust Company, Xxxxxxx’x Bank PLC, The Bank of Tokyo and National Westminster
Bank PLC and their successors in interest; provided
that if
any of the foregoing banks are not suitable to serve as a Reference Bank, then
any leading banks selected by the Indenture Trustee which are engaged in
transactions in Eurodollar deposits in the international Eurocurrency market
(i)
with an established place of business in London, (ii) not controlling, under
the
control of or under common control with the Company or any Affiliate thereof,
(iii) whose quotations appear on the Reuters Screen LIBO Page on the relevant
Interest Determination Date and (iv) which have been designated as such by
the
Indenture Trustee.
Registered
Holder:
The
Person in whose name a Note is registered in the Note Register on the applicable
Record Date.
Related
Documents:
With
respect to each Mortgage Loan, the documents specified in Section 2.1(b) of
the
Mortgage Loan Purchase Agreement and any documents required to be added to
such
documents pursuant to the Mortgage Loan Purchase Agreement, the Trust Agreement,
Indenture or the Servicing Agreement.
Relief
Act:
The
Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended.
Relief
Act Shortfall:
For any
Payment Date, As to any Payment Date and any Mortgage Loan (other than a
Mortgage Loan relating to an REO Property) any shortfalls relating to the Relief
Act or similar legislation or regulations.
REO
Acquisition:
The
acquisition by the Master Servicer on behalf of the Indenture Trustee for the
benefit of the Noteholders of any REO Property pursuant to Section 3.13 of
the
Servicing Agreement.
REO
Disposition:
As to
any REO Property, a determination by the Master Servicer that it has received
substantially all Insurance Proceeds, Liquidation Proceeds, REO Proceeds and
other payments and recoveries (including proceeds of a final sale) which the
Master Servicer expects to be finally recoverable from the sale or other
disposition of the REO Property.
REO
Imputed Interest:
As to
any REO Property, for any period, an amount equivalent to interest (at the
Net
Mortgage Rate that would have been applicable to the related Mortgage Loan
had
it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of
the date of acquisition thereof for such period.
REO
Proceeds:
Proceeds, net of expenses, received in respect of any REO Property (including,
without limitation, proceeds from the rental of the related Mortgaged Property)
which proceeds are required to be deposited into the Collection Account only
upon the related REO Disposition.
REO
Property:
A
Mortgaged Property that is acquired by the Issuer in foreclosure or by deed
in
lieu of foreclosure.
Repurchase
Event:
With
respect to any Mortgage Loan, either (i) a discovery that, as of the Closing
Date the related Mortgage was not a valid lien on the related Mortgaged Property
subject only to (A) the lien of any prior mortgage indicated on the Mortgage
Loan Schedule, (B) the lien of real property taxes and assessments not yet
due
and payable, (C) covenants, conditions, and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such
Mortgage and such other permissible title exceptions as are permitted and (D)
other matters to which like properties are commonly subject which do not
materially adversely affect the value, use, enjoyment or marketability of the
related Mortgaged Property or (ii) with respect to any Mortgage Loan as to
which
the Seller delivers an affidavit certifying that the original Mortgage Note
has
been lost or destroyed, a subsequent default on such Mortgage Loan if the
enforcement thereof or of the related Mortgage is materially and adversely
affected by the absence of such original Mortgage Note.
Repurchase
Price:
With
respect to any Mortgage Loan required to be repurchased on any date pursuant
to
the Mortgage Loan Purchase Agreement or purchased by the Master Servicer
pursuant to the Servicing Agreement, an amount equal to the sum, without
duplication, of (i) 100% of the Principal Balance thereof (without reduction
for
any amounts charged off) and (ii) unpaid accrued interest at the Mortgage Rate
on the outstanding principal balance thereof from the Due Date to which interest
was last paid by the Mortgagor to the first day of the month following the
month
of purchase plus (iii) the amount of Advances and any unreimbursed Servicing
Advances or unreimbursed Advances made with respect to such Mortgage Loan plus
(iv) any other amounts owed to the Master Servicer or the Subservicer pursuant
to Section 3.07 of the Servicing Agreement not included in clause (iii) of
this
definition.
Required
Subordination Amount:
[With
respect to any Payment Date occurring from the initial Payment Date and ending
on the later of (i) the date on which the aggregate Principal Balance of the
Mortgage Loans is 50% of the initial aggregate Principal Balance of the Mortgage
Loans and (ii) the 30th Payment Date, the greater of:
(a) the
Original Specified Subordination Amount; and
(b) two
times
the excess of (1) 50% of the aggregate Principal Balance of the Mortgage Loans
which are 91 or more days delinquent (including Mortgage Loans in foreclosure
and REO Properties) as of such date over (2) two times the current Net Monthly
Excess Cash Flow for such Payment Date; and
with
respect to any Payment Date thereafter, the greatest of:
(a) the
lesser of (1) the Original Specified Subordination Amount and (2) two times
____% times the aggregate Note Principal Balance as of such Payment
Date;
(b) two
times
the excess of (A) 50% of the aggregate Principal Balance of the Mortgage Loans
which are 91 or more days delinquent (including Mortgage Loans in foreclosure
and REO Properties) as of such date over (B) two times the current Net Monthly
Excess Cash Flow for such Payment Date;
(c) 0.5%
of
the Cut-Off Date Principal Balance of the Mortgage Loans; and
(d) an
amount
equal to the outstanding balance of the four largest Mortgage Loans as of the
Cut-Off Date;]
provided,
however,
that if
(x) a Servicer Default has occurred and is continuing as of such Payment Date,
and such Servicer Default has not been waived by the Note Insurer or (y) a
claim
has been made on the Note Insurance Policy by the Indenture Trustee, the
Required Subordination Amount shall not decrease on any Payment
Date.
Reserve
Interest Rate:
With
respect to any Interest Determination Date, the rate per annum that the
Indenture Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/16%) of the three-month
United States dollar lending rates which New York City banks selected by the
Indenture Trustee are quoting on the relevant Interest Determination Date to
the
principal London offices of leading banks in the London interbank market or
(ii)
in the event that the Indenture Trustee can determine no such arithmetic mean,
the lowest three-month United States dollar lending rate which New York City
banks selected by the Indenture Trustee are quoting on such Interest
Determination Date to leading European banks.
Responsible
Officer:
With
respect to the Indenture Trustee, any officer of the Indenture Trustee with
direct responsibility for the administration of the Trust Agreement and also,
with respect to a particular matter, any other officer to whom such matter
is
referred because of such officer’s knowledge of and familiarity with the
particular subject.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Security:
Any of
the Certificates or Notes.
Securityholder
or Holder:
Any
Noteholder or a Certificateholder.
Security
Instrument:
A
written instrument creating a valid first lien on a Mortgaged Property securing
a Mortgage Note, which may be any applicable form of mortgage, deed of trust,
deed to secure debt or security deed, including any riders or addenda
thereto.
Seller:
_______________________, a __________ corporation, and its successors and
assigns.
Servicing
Account:
The
separate trust account created and maintained by the Master Servicer or each
Subservicer with respect to the Mortgage Loans or REO Property, which shall
be
an Eligible Account, for collection of taxes, assessments, insurance premiums
and comparable items as described in Section 3.08 of the Servicing
Agreement.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses incurred
in connection with a default, delinquency or other unanticipated event in the
performance by the Master Servicer of its servicing obligations, including,
without duplication, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property and (iv) compliance with the obligations under
Sections 3.10, 3.11, 3.13 of the Servicing Agreement.
Servicing
Agreement:
The
Servicing Agreement dated as of ______ 1, ____, between the Master Servicer
and
the Issuer.
Servicing
Certificate:
A
certificate completed and executed by a Servicing Officer on behalf of the
Master Servicer in accordance with Section 4.01 of the Servicing
Agreement.
Servicing
Default:
The
meaning assigned in Section 6.01 of the Servicing Agreement.
Servicing
Fee:
With
respect to any Mortgage Loan, the sum of the related Master Servicing Fee and
the related Subservicing Fee.
Servicing
Fee Rate:
With
respect to any Mortgage Loan, the sum of the related Master Servicing Fee Rate
and the Subservicing Fee Rate.
Servicing
Officer:
Any
officer of the Master Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and specimen
signature appear on a list of servicing officers furnished to the Indenture
Trustee (with a copy to the Note Insurer) by the Master Servicer, as such list
may be amended from time to time.
Single
Note:
A Note
in the amount of $_________.
Standard
& Poor’s:
Standard & Poor’s Ratings Service, or its successor in
interest.
Subordination
Amount:
As of
any Payment Date, the excess, if any, of (x) the sum of the aggregate Principal
Balances of the Mortgage Loans as of the close of business on the last day
of
the related Due Period as of such Payment Date over (y) the Note Principal
Balance of the Notes as of such Payment Date (and following the making of all
distributions on such Payment Date)
Subordination
Deficit:
With
respect to any Payment Date, the amount, if any, by which (x) the aggregate
Note
Principal Balance of the Notes as of such Payment Date, and following the making
of all distributions to be made on such Payment Date (except for any payment
to
be made as to principal from proceeds of the Note Insurance Policy), exceeds
(y)
the aggregate Principal Balances of the Mortgage Loans as of the close of
business on the preceding Due Date on such Payment Date.
Subordination
Increase Amount:
With
respect to any Payment Date, the amount of any Net Monthly Excess Cashflow
(including any Subordination Reduction Amount) available in the Payment Account
to increase the Subordination Amount up to the Required Subordination
Amount.
Subordination
Reduction Amount:
With
respect to any Payment Date, an amount equal to the lesser of (a) the Excess
Subordination Amount and (b) the principal collections received by the Master
Servicer with respect to the prior Due Period.
Subservicer:
Any
Person with whom the Master Servicer has entered into a Subservicing Agreement
as a Subservicer by the Master Servicer and acceptable to the Note Insurer
and
the Indenture Trustee, including the Initial Subservicers.
Subservicing
Account:
An
Eligible Account established or maintained by a Sub servicer as provided for
in
Section 3.06(e) of the Servicing Agreement.
Subservicing
Agreement:
The
written contract between the Master Servicer and any Subservicer relating to
servicing and administration of certain Mortgage Loans as provided in Section
3.02 of the Servicing Agreement.
Subservicing
Fee:
With
respect to each Mortgage Loan and any date of determination, the product of
(i)
the Subservicing Fee Rate divided by 12 and (ii) the Principal Balance of such
Mortgage Loans as of such date.
Subservicing
Fee Rate:
For any
date of determination, ____% per annum.
Substitution
Adjustment Amount:
With
respect to any Eligible Substitute Mortgage Loan, the amount as defined in
Section 2.03 of the Servicing Agreement.
Telerate
Screen Page 3750:
The
display designated as page 3750 on the Telerate Service (or such other page
as
may replace page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks). If such rate does not appear on such
page (or such other page as may replace that page on that service, or if such
service is no longer offered, such other service for displaying One-Month LIBOR
or comparable rates as may be selected by the Issuer after consultation with
the
Indenture Trustee), the rate will be the Reference Bank Rate.
Treasury
Regulations:
Regulations, including proposed or temporary Regulations, promulgated under
the
Code. References herein to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations
or
other successor Treasury Regulations.
Trust
Agreement:
The
Trust Agreement dated as of ______ 1, _____ between the Owner Trustee and the
Depositor.
Trust
Estate:
The
meaning specified in the Granting Clause of the Indenture.
Trust
Indenture Act or TIA:
The
Trust Indenture Act of 1939, as amended from time to time, as in effect on
any
relevant date.
UCC:
The
Uniform Commercial Code, as amended from time to time, as in effect in any
specified jurisdiction.
Weighted
Average Net Mortgage Rate:
With
respect to the Mortgage Loans in the aggregate, and any Due Date, the average
of
the Net Mortgage Rate for each Mortgage Loan as of the last day of the related
Due Period weighted on the basis of the related Principal Balances out standing
as of the last day of the related Due Period for each Mortgage Loan as
determined by the Master Servicer in accordance with the Master Servicer’s
normal servicing procedures.
