INDENTURE Between SAXON ASSET SECURITIES TRUST 2006-3 as Issuer and DEUTSCHE BANK TRUST COMPANY AMERICAS as Indenture Trustee Dated as of September 1, 2006 SAXON ASSET SECURITIES TRUST 2006-3, MORTGAGE LOAN ASSET BACKED NOTES, SERIES 2006-3
EXECUTION
Between
SAXON
ASSET SECURITIES TRUST 2006-3
as
Issuer
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Indenture Trustee
Dated
as
of September 1, 2006
SAXON
ASSET SECURITIES TRUST 2006-3,
MORTGAGE
LOAN ASSET BACKED NOTES, SERIES 2006-3
TABLE
OF CONTENTS
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Page
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Article
I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section
1.01.
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Definitions.
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1
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Section
1.02.
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Incorporation
by Reference of Trust Indenture Act.
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9
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Section
1.03.
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Rules
of Construction.
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9
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Article
II. THE NOTES
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10
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Section
2.01.
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Form.
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10
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Section
2.02.
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Execution,
Authentication, Delivery and Dating.
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11
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Section
2.03.
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Registration;
Registration of Transfer and Exchange.
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12
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Section
2.04.
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Mutilated,
Destroyed, Lost or Stolen Notes.
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14
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Section
2.05.
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Persons
Deemed Owners.
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14
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Section
2.06.
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Payment
of Principal and Interest.
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15
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Section
2.07.
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Cancellation.
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15
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Section
2.08.
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Authentication
of Notes.
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16
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Section
2.09.
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Book-Entry
Notes.
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19
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Section
2.10.
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Notices
to Clearing Agency.
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19
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Section
2.11.
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Definitive
Notes.
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20
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Section
2.12.
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Tax.
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21
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Article
III. COVENANTS
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21
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Section
3.01.
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Payment
of Principal and Interest.
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21
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Section
3.02.
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Maintenance
of Office or Agency.
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21
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Section
3.03.
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Money
for Payments To Be Held in Trust.
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22
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Section
3.04.
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Existence.
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23
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Section
3.05.
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Protection
of Collateral.
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24
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Section
3.06.
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Performance
of Obligations.
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24
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Section
3.07.
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Negative
Covenants.
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25
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Section
3.08.
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Covenants
of the Issuer.
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26
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Section
3.09.
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Restricted
Payments.
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26
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Section
3.10.
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Treatment
of Notes as Debt for Tax Purposes.
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27
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Section
3.11.
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Notice
of Events of Default.
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27
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Section
3.12.
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Further
Instruments and Acts.
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27
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Section
3.13.
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Annual
Statement as to Compliance.
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27
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Article
IV. SATISFACTION AND DISCHARGE
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27
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Section
4.01.
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Satisfaction
and Discharge of Indenture.
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27
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Section
4.02.
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Application
of Trust Money.
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29
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Section
4.03.
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Repayment
of Moneys Held by Paying Agent.
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29
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i
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Article
V. EVENTS OF DEFAULT; REMEDIES
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29
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Section
5.01.
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Events
of Default.
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29
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Section
5.02.
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Acceleration
of Maturity; Rescission and Annulment.
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30
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Section
5.03.
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Collection
of Indebtedness and Suits for Enforcement by Indenture
Trustee.
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31
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Section
5.04.
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Remedies;
Priorities.
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33
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Section
5.05.
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Limitation
of Suits.
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34
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Section
5.06.
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Unconditional
Rights of Noteholders To Receive Principal and Interest.
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35
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Section
5.07.
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Restoration
of Rights and Remedies.
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35
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Section
5.08.
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Rights
and Remedies Cumulative.
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35
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Section
5.09.
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Delay
or Omission Not a Waiver.
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35
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Section
5.10.
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Control
by Noteholders.
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35
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Section
5.11.
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Waiver
of Past Defaults.
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36
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Section
5.12.
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Undertaking
for Costs.
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36
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Section
5.13.
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Waiver
of Stay or Extension Laws.
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36
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Section
5.14.
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Action
on Notes.
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37
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Section
5.15.
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Optional
Preservation of the Collateral.
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37
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Section
5.16.
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Performance
and Enforcement of Certain Obligations.
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37
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Article
VI. THE INDENTURE TRUSTEE
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38
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Section
6.01.
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Duties
of Indenture Trustee.
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38
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Section
6.02.
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Rights
of Indenture Trustee.
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40
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Section
6.03.
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Individual
Rights of Indenture Trustee.
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41
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Section
6.04.
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Indenture
Trustee’s Disclaimer.
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41
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Section
6.05.
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Notice
of Default.
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42
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Section
6.06.
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Reports
by Indenture Trustee to Holders.
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42
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Section
6.07.
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Compensation
and Indemnity.
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42
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Section
6.08.
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Replacement
of Indenture Trustee.
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43
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Section
6.09.
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Successor
Indenture Trustee by Xxxxxx.
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44
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Section
6.10.
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Appointment
of Co-Indenture Trustee or Separate Indenture Trustee.
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44
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Section
6.11.
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Eligibility.
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45
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Section
6.12.
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Representations
and Warranties.
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45
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Section
6.13.
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Preferential
Collection of Claims Against Issuer.
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45
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Section
6.14.
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Reporting
Requirements of the Commission
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46
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Article
VII. NOTEHOLDERS’ LISTS AND REPORTS
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47
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Section
7.01.
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Issuer
To Furnish Indenture Trustee Names and Addresses of
Noteholders.
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47
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Section
7.02.
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Preservation
of Information; Communications to Noteholders.
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47
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Section
7.03.
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Reports
by Issuer.
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47
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Section
7.04.
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Reports
by Indenture Trustee.
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47
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Article
VIII. ACCOUNTS, DISBURSEMENTS AND RELEASES
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48
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Section
8.01.
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Collection
of Money.
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48
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Section
8.02.
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Establishment
of Payment Account; Payments on the Notes.
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48
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ii
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Section
8.03.
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Release
of Collateral.
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48
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Article
IX. SUPPLEMENTAL INDENTURES
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49
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Section
9.01.
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Supplemental
Indentures Without Consent of Noteholders.
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49
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Section
9.02.
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Supplemental
Indentures with Consent of Noteholders.
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51
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Section
9.03.
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Execution
of Supplemental Indentures.
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52
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Section
9.04.
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Effect
of Supplemental Indenture.
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52
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Section
9.05.
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Conformity
with Trust Indenture Act.
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53
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Section
9.06.
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Reference
in Notes to Supplemental Indentures.
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53
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Section
9.07.
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Amendments
to Trust Agreement.
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53
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Article
X. DISPOSITION OF THE COLLATERAL; REDEMPTION OF THE NOTES
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53
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Section
10.01.
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Redemption
of the Notes.
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53
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Section
10.02.
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Form
of Redemption Notice.
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53
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Section
10.03.
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Notes
Payable on Redemption Date or Note Payment Date.
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54
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Article
XI. MISCELLANEOUS
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54
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Section
11.01.
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Compliance
Certificates and Opinions, etc.
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54
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Section
11.02.
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Form
of Documents Delivered to Indenture Trustee.
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56
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Section
11.03.
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Acts
of Noteholders.
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57
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Section
11.04.
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Notices,
etc. to Indenture Trustee, the Issuer and Rating Agencies.
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57
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Section
11.05.
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Notices
to Noteholders; Waiver.
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58
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Section
11.06.
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Conflict
with Trust Indenture Act.
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58
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Section
11.07.
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Effect
of Headings and Table of Contents.
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58
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Section
11.08.
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Successors
and Assigns.
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58
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Section
11.09.
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Severability.
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58
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Section
11.10.
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Benefits
of Indenture and Consent of Noteholders.
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58
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Section
11.11.
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Legal
Holidays.
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59
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Section
11.12.
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Governing
Law.
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59
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Section
11.13.
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Counterparts.
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59
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Section
11.14.
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Recording
of Indenture.
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59
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Section
11.15.
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Issuer
Obligations.
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59
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Section
11.16.
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No
Petition.
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60
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Section
11.17.
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Inspection.
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60
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Section
11.18.
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Execution
by the Issuer.
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60
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Section
11.19.
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Indenture
Trustee May File Proofs of Claim.
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60
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Section
11.20.
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Confidentiality.
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61
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| EXHIBIT A | Form of Notes |
| EXHIBIT B | Form of ERISA Transfer Affidavit |
| EXHIBIT C | Servicing Criteria to be Addressed in Assessment of Compliance |
iii
This
Indenture dated as of September 1, 2006, is between SAXON ASSET SECURITIES
TRUST
2006-3, a Delaware statutory trust,
as
Issuer (the “Issuer”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York
banking corporation, as indenture trustee and not in its individual capacity
(the “Indenture Trustee”).
Each
party agrees as follows for the benefit of the other party and for the benefit
of the holders of the Notes:
GRANTING
CLAUSE
Subject
to the terms of this Indenture, the Issuer hereby Grants on the Closing Date
to
the Indenture Trustee, as Indenture Trustee for the benefit of the Holders
of
the Notes, all of the Issuer’s right, title and interest in and to: (i) the
Trust Estate (as defined in the Sale and Servicing Agreement); (ii) the Issuer’s
rights and benefits but none of its obligations under the Sale and Servicing
Agreement; (iii) the Issuer’s rights and benefits but none of its obligations
under the Administration Agreement; (iv) all other property of the Issuer from
time to time; and (v) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect
of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of
or
are included in the proceeds of any of the foregoing (collectively, the
“Collateral”).
The
foregoing Grant is made in trust to secure the payment of principal of and
interest on, and any other amounts owing in respect of, the Notes and to secure
(i) the payment of all amounts due on the Notes in accordance with their terms,
(ii) the payment of all other sums payable under the Indenture with respect
to
the Notes, and (iii) compliance with the provisions of this Indenture, all
as
provided in this Indenture.
The
Indenture Trustee, as indenture trustee on behalf of the Noteholders,
acknowledges such Xxxxx, accepts the trusts hereunder and agrees to perform
the
duties required of it in this Indenture in accordance with its
terms.
Each
Noteholder, by acceptance of the Notes, and the Indenture Trustee agree and
acknowledge that each item of Collateral that is physically delivered to the
Indenture Trustee will be held by the Indenture Trustee (or its custodian)
in
trust for the benefit of the Noteholders under the terms of this Agreement.
ARTICLE
I.
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01. Definitions.
Except
as otherwise specified herein or as the context may otherwise require, (i)
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Sale and Servicing Agreement for all
purposes of this Indenture and (ii) the following terms have the respective
meanings set forth below for all purposes of this Indenture.
Act:
The
meaning specified in Section 11.03(a).
Actual
Knowledge:
With
respect to the Indenture Trustee or the Administrator, any officer within the
Corporate Trust Office of the Indenture Trustee or the Administrator responsible
for performing obligations hereunder, or under the Operative Agreements, who
has
actual knowledge of an action taken or an action not taken with regard to the
Issuer. Actions taken or actions not taken of which the Indenture Trustee or
the
Administrator should have had knowledge, or has constructive knowledge, do
not
meet the definition of Actual Knowledge hereunder.
Administration
Agreement:
The
Administration Agreement dated as of September 1, 2006 among the Issuer, the
Administrator, Wilmington Trust Company, as owner trustee and the
Depositor.
Administrator:
Deutsche
Bank Trust Company Americas, or any successor thereto.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Authorized
Officer:
With
respect to the Issuer, (i) 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) (ii) so long as the Administration
Agreement is in effect, any Vice President, trust officer or other officer
of
the Administrator or the Depositor who is authorized to act for the
Administrator or the Depositor in matters relating to the Issuer and to be
acted
upon by the Administrator or the Depositor pursuant to the Administration
Agreement and who is identified on the list of Authorized Officers delivered
by
the Administrator and the Depositor to the Indenture Trustee on the Closing
Date
(as such list may be modified or supplemented from time to time thereafter)
and
(iii) any Officer of the Trust pursuant to Section 11.01 of the Trust
Agreement.
Book-Entry
Notes:
A
beneficial interest in any Class of Notes, ownership and transfers of which
shall be made through book entries by a Clearing Agency as described in Section
2.09.
Certificate
of Trust:
The
certificate of trust of the Issuer substantially in the form of Exhibit C
to the Trust Agreement.
Certificates:
As
defined in the Trust Agreement.
Class:
All
Notes bearing the same class designation.
Class
A Notes:
The
Class A-1, Class A-2, Class A-3 and Class A-4 Notes issued under this
Indenture.
2
Class
A-1 Notes:
The
Class A-1 Notes due November 25, 2036 issued
under this Indenture in the original
aggregate principal amount set forth in Section 2.02.
Class
A-2 Notes:
The
Class A-2 Notes due November 25, 2036 issued under this Indenture in the
original
aggregate principal amount set forth in Section 2.02.
Class
A-3 Notes:
The
Class A-3 Notes due November 25, 2036 issued under this Indenture in the
original
aggregate principal amount set forth in Section 2.02.
Class
A-4 Notes:
The
Class A-4 Notes due November 25, 2036 issued under this Indenture in the
original
aggregate principal amount set forth in Section 2.02.
Class
B Notes:
The
Class B-1, Class B-2 and Class B-3 Notes issued under this
Indenture.
Class
B-1 Notes:
The
Class B-1 Notes due November 25, 2036 issued under this Indenture in the
original
aggregate principal amount set forth in Section 2.02.
Class
B-2 Notes:
The
Class B-2 Notes due November 25, 2036 issued under this Indenture in the
original
aggregate principal amount set forth in Section 2.02.
Class
B-3 Notes:
The
Class B-3 Notes due November 25, 2036 issued under this Indenture in the
original
aggregate principal amount set forth in Section 2.02.
Class
M Notes:
The
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6 Notes issued
under this Indenture.
Class
M-1 Notes:
The
Class M-1 Notes due November 25, 2036 issued under this Indenture in the
original aggregate principal amount set forth in Section 2.02.
Class
M-2 Notes:
The
Class M-2 Notes due November 25, 2036 issued under this Indenture in the
original aggregate principal amount set forth in Section 2.02.
Class
M-3 Notes:
The
Class M-3 Notes due November 25, 2036 issued under this Indenture in the
original aggregate principal amount set forth in Section 2.02.
Class
M-4 Notes:
The
Class M-4 Notes due November 25, 2036 issued under this Indenture in the
original aggregate principal amount set forth in Section 2.02.
Class
M-5 Notes:
The
Class M-5 Notes due November 25, 2036 issued under this Indenture in the
original aggregate principal amount set forth in Section 2.02.
Class
M-6 Notes:
The
Class M-6 Notes due November 25, 2036 issued under this Indenture in the
original aggregate principal amount set forth in Section 2.02.
Class
X Certificate:
As
defined in the Trust Agreement.
3
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. As of the Closing Date, the
Clearing Agency shall be The Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for which
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Collateral:
The
meaning specified in the Granting Clause of this Indenture.
Commission:
The
Securities and Exchange Commission.
Controlling
Class Notes:
The
Class A Notes, as long as any Class A Notes are Outstanding, then the Class
M-1
Notes, as long as any Class M-1 Notes are Outstanding, then the Class M-2 Notes,
as long as any Class M-2 Notes are Outstanding, then the Class M-3 Notes, as
long as any Class M-3 Notes are Outstanding, then the Class M-4 Notes, as long
as any Class M-4 Notes are Outstanding, then the Class M-5 Notes, as long as
any
Class M-5 Notes are Outstanding, then the Class M-6 Notes, as long as any Class
M-6 Notes are Outstanding, then the Class B-1 Notes, as long as any Class B-1
Notes are Outstanding, then the Class B-2 Notes, as long as any Class B-2 Notes
are Outstanding, then the Class B-3 Notes, as long as any Class B-3 Notes are
Outstanding.
Corporate
Trust Office:
The
principal office of the Indenture Trustee at which at any particular time its
corporate trust business shall be administered, which office at date of
execution of this Agreement is located at 0000
Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000; Attention: Trust
Administration — SX0603, or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders, and the Issuer, or
the
principal corporate trust office of any successor Indenture Trustee at the
address designated by such successor Indenture Trustee by notice to the
Noteholders and the Issuer.
Default:
Any
occurrence that is, or with notice or the lapse of time or both would become,
an
Event of Default.
Definitive
Notes:
The
meaning specified in Section 2.09.
Depository:
DTC or
any other Person designated by the Issuer as Depository in the case of
Book-Entry Notes.
Depository
Institution:
Any
depository institution or trust company, including the Indenture Trustee, that
(a) is incorporated under the laws of the United States of America or any
State thereof, (b) is subject to supervision and examination by federal or
state banking authorities and (c) has outstanding unsecured commercial
paper or other short-term unsecured debt obligations that are rated in the
highest rating category by each Rating Agency, or is otherwise acceptable to
each Rating Agency.
DTC:
The
Depository Trust Company.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
4
Event
of Default:
As
specified in Section 5.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Executive
Officer:
With
respect to any corporation, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, Executive Vice President, any
Vice
President, the Secretary or the Treasurer of such corporation; and with respect
to any partnership, any general partner xxxxxxx.
Global
Securities:
The
meaning specified in Section 2.01.
Grant:
Mortgage, 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 this
Indenture. A Grant of the Collateral or of any other agreement or instrument
shall include all rights, powers and options (but none of the obligations)
of
the granting party thereunder, including the immediate and continuing right
to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Collateral and all other moneys payable thereunder, to give
and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name
of the granting party or otherwise, and generally to do and receive anything
that the granting party is or may be entitled to do or receive thereunder or
with respect thereto.
Holder
or
Noteholder:
The
registered holder of any Note as recorded on the books of the Note Registrar
except that, solely for the purposes of taking any action or giving any consent
pursuant to this Agreement or the Sale and Servicing Agreement, any Note
registered in the name of the Indenture Trustee or any Affiliate thereof shall
be deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Indenture Trustee shall be protected in relying upon
any
such consent, only Notes which a Responsible Officer of the Indenture Trustee
has Actual Knowledge to be so held shall be disregarded.
Independent:
When
used with respect to any specified Person, that such Person (a) is in fact
independent of the Issuer, any other obligor on the Notes and any Affiliate
of
any of the foregoing Persons, (b) does not have any direct financial interest
or
any material indirect financial interest in the Issuer, any such other obligor
or any Affiliate of any of the foregoing Persons and (c) is not connected with
the Issuer, any such other obligor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Independent
Certificate:
A
certificate or opinion to be delivered to the Indenture Trustee under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.01, made by an Independent appraiser or other expert
appointed by an Issuer Order, and such opinion or certificate shall state that
the signer has read the definition of “Independent” in this Indenture and that
the signer is Independent within the meaning thereof.
Issuer:
Saxon
Asset Securities Trust 2006-3, or any successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
5
Issuer
Order
and
Issuer
Request:
A
written order or request signed in the name of the Issuer by any one of its
Authorized Officers and delivered to the Indenture Trustee.
Majority
Controlling Class Noteholders:
On any
date, the Holders of more than 50% of the Class Principal Balance of outstanding
Controlling Class Notes.
Maturity
Date:
The
Payment Date in November 2036.
Non-Priority
Class:
As of
any date of determination, any outstanding Class of Notes other than the
Controlling Class Notes.
Note
Owner:
With
respect to a Book-Entry Note, the Person who is the beneficial owner of such
Book-Entry Note, as reflected on the books of the Clearing Agency or on the
books of a Person maintaining an account with such Clearing Agency (directly
as
a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
Note
Register
and
Note
Registrar:
The
respective meanings specified in Section 2.03.
Notes:
The
notes of all Classes issued under this Indenture.
Officer’s
Certificate:
A
certificate signed by any Authorized Officer of the Issuer (or by an officer
of
the Depositor pursuant to the Administration Agreement), under the circumstances
described in, and otherwise complying with, the applicable requirements of
Section 11.01, and delivered to the Indenture Trustee.
Opinion
of Counsel:
One or
more written opinions of counsel, which counsel may, except as otherwise
expressly provided in this Indenture, be an employee or employees of or counsel
to the Issuer and who shall be satisfactory to the Indenture Trustee, which
opinion or opinions shall be addressed to the Indenture Trustee, as Indenture
Trustee, and shall comply with any applicable requirements of Section 11.01
and shall be in form and substance satisfactory to the Indenture
Trustee.
Outstanding:
With
respect to any Note and as of any date of determination, any Note theretofore
authenticated and delivered under this Indenture except:
(i) Notes
theretofore canceled by the Note Registrar or delivered to the Note Registrar
for cancellation;
(ii) Notes
or
portions thereof the payment for which money in the necessary amount has been
theretofore deposited with the Indenture Trustee or any Paying Agent in trust
for the related Noteholders; and
(iii) Notes
in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture unless proof satisfactory to the Indenture
Trustee is presented that any such Notes are held by a bona fide purchaser;
provided,
that in
determining whether the Holders of the requisite Outstanding Amount of the
Notes
have given any request, demand, authorization, direction, notice, consent,
or
waiver hereunder or under any other Operative Agreement, Notes owned by the
Issuer, any other obligor upon the Notes or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Indenture Trustee has
Actual Knowledge to be so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee 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.
6
Outstanding
Amount:
The
aggregate of the Note Principal Balances of all Notes, or of all Notes of a
Class, as applicable, Outstanding at the date of determination.
Percentage
Interest:
As
defined in the Sale and Servicing Agreement.
Predecessor
Note:
With
respect to any particular Note, every previous Note evidencing all or a portion
of the same debt as that evidenced by such particular Note; and, for the purpose
of this definition, any Note authenticated and delivered under Section 2.04
in
lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Qualified
REIT Subsidiary:
As
defined in the Trust Agreement.
Rating:
The
rating assigned to a Class of Notes by a Rating Agency (which shall initially
be
the Required Rating), as evidenced by a letter from such Rating
Agency.
Rating
Agency Condition:
With
respect to any action to which the Rating Agency Condition applies, that each
Rating Agency shall have been given 10 days (or such shorter period acceptable
to the applicable Rating Agency) prior notice of any action to which the Rating
Agency Condition applies and that such Rating Agency shall have notified the
Depositor, the Owner Trustee, the Indenture Trustee and the Administrator in
writing that such proposed action will not result in a reduction or withdrawal
of the then current rating of the applicable Class or Classes of Notes (if
then
rated).
Record
Date:
With
respect to Fixed Rate Notes and any Payment Date, the close of business on
the
last Business Day of the month preceding the month in which such Payment Date
occurs. With respect to Variable Rate Notes and any Payment Date, the close
of
business on the Business Day immediately preceding such Payment Date;
provided
that if
any such Variable Rate Notes are no longer Book-Entry Notes, the Record Date
shall be the close of business on the last Business Day of the month preceding
the month in which such Payment Date occurs.
Redemption
Date:
In the
case of a redemption of the Notes pursuant to Section 10.01(b) hereof, the
Payment Date specified by the Indenture Trustee pursuant to Section
10.02.
7
Redemption
Price:
As
defined in the Sale and Servicing Agreement.
Registered
Holder:
The
Person in whose name a Note is registered on the Note Register on the applicable
Record Date.
Registered
Notes:
Those
Notes which are in registered form. Each of the Notes will be registered
Notes.
REIT:
As
defined in the Trust Agreement.
Required
Rating:
The
Notes have received, on the Closing Date, the following ratings from the Rating
Agencies:
|
Class
|
|
Xxxxx’x
Rating
|
|
S&P
Rating
|
|
A-1
|
|
Aaa
|
|
AAA
|
|
A-2
|
|
Aaa
|
|
AAA
|
|
A-3
|
|
Aaa
|
|
AAA
|
|
A-4
|
|
Aaa
|
|
AAA
|
|
M-1
|
|
Aa1
|
|
AA+
|
|
M-2
|
|
Aa2
|
|
AA+
|
|
M-3
|
|
Aa3
|
|
AA
|
|
M-4
|
|
A1
|
|
AA-
|
|
M-5
|
|
A2
|
|
A+
|
|
M-6
|
|
A3
|
|
A
|
|
B-1
|
|
Baa1
|
|
A-
|
|
B-2
|
|
Baa2
|
|
BBB+
|
|
B-3
|
|
Baa3
|
|
BBB
|
Retained
Note:
Any
Note held by a person that, for federal income tax purposes, owns or is treated
as owning a 100% Percentage Interest of the Class X Certificate and the Trust
Certificate.
Sale
and Servicing Agreement:
The
Sale and Servicing Agreement dated as of September
1, 2006, among the Issuer, the Servicer, the Depositor, the Indenture Trustee
and the Master Servicer, as such agreement may be amended or supplemented from
time to time.
Servicer:
Saxon
Mortgage Services, Inc., a Texas corporation, and
its
permitted successors and assigns.
SFM:
Saxon
Funding Management, Inc., a Delaware corporation.
8
State:
Any one
of the 50 States of the United States of America or the District of
Columbia.
Trust
Certificate:
As
defined in the Trust Agreement.
Trust
Indenture Act or TIA:
The
Trust Indenture Act of 1939 as in force on the date hereof, unless otherwise
specifically provided.
United
States:
The
United States of America.
U.S.
Person:
A
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
State (other than a partnership that is not treated as a U.S. Person under
any
applicable Treasury regulations), or an estate whose income is subject to United
States federal income tax regardless of its source, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more U.S. Persons have the authority
to
control all substantial decisions of the trust. Notwithstanding the preceding
sentence, to the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996 and treated as U.S. Persons prior to such date
that
elect to continue to be treated as U.S. Persons also will be U.S.
Persons.
Section
1.02. Incorporation by Reference of Trust Indenture Act.
(a) Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms
used
in this Indenture have the following meanings:
“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.
(b) All
other
TIA terms used in this Indenture that are defined in the TIA, defined by TIA
reference to another statute or defined by rule of the Securities and Exchange
Commission have the respective meanings assigned to them by such
definitions.
Section
1.03. Rules of Construction.
Unless
the context otherwise requires:
(i) a
term
has the meaning assigned to it;
9
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time
to time;
(iii) “or”
is
not exclusive;
(iv) “including”
means including without limitation;
(v) words
in
the singular include the plural and words in the plural include the
singular;
(vi) any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
(as
provided in such agreements) and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns;
(vii) terms
defined in the UCC and not otherwise defined herein shall have the meaning
assigned to them in the UCC; and
(viii) “U.S.
dollars,” “dollars,” or the sign “$” shall be construed as references to United
States dollars which are freely transferable by residents and non-residents
of
the United States of America and convertible by such persons into any other
freely convertible currency unless such transferability or convertibility is
restricted by any law or regulation of general application in which event
references to “U.S. dollars,” “dollars,” or the sign “$” shall be construed as
references to such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts in the United States of America, and “cents” shall be construed
accordingly.
ARTICLE
II.
THE
NOTES
Section
2.01. Form.
The
Notes shall be designated as the “Saxon Asset Securities Trust
2006-3 Mortgage
Loan Asset Backed Notes, Series 2006-3.” Each Class of Notes, together with the
Indenture Trustee’s certificate of authentication, shall be in substantially the
applicable forms set forth in Exhibit A, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes,
as
evidenced by their execution thereof. Any portion of the text of any Note may
be
set forth on the reverse thereof, with an appropriate reference thereto on
the
face of the Note.
The
Definitive Notes and the global certificates (“Global Securities”) representing
the Book-Entry Notes shall be typewritten, printed, lithographed or engraved
or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
10
The
Notes
shall be issued as registered Notes. The Class A Notes, except as otherwise
provided by supplement to this Indenture, shall be issued in a denomination
of
at least $25,000 in original principal amount and integral multiples of $1,000
in excess thereof. The Class B Notes and the M Notes, except as otherwise
provided by supplement to this Indenture, shall be issued in minimum
denominations of at least $100,000 in original principal amount and integral
multiples of $1,000 in excess thereof. If the Notes are issuable in whole or
in
part as Book-Entry Notes, any such Note may provide that it shall represent
the
aggregate amount of Outstanding Notes from time to time endorsed thereon and
may
provide that the aggregate amount of Outstanding Notes represented thereby
may
from time to time be reduced to reflect exchanges or increased to reflect the
issuance of an additional principal amount of Notes. Any endorsement of a
Book-Entry Note to reflect the amount, or any increase or decrease in the
amount, of Outstanding Notes represented thereby shall be made in such manner
and by such Person or Persons, as shall be specified therein or in the Issuer
Order of authentication delivered to the Indenture Trustee.
The
terms
of the Notes set forth in Exhibit A are part of the terms of this Indenture.
Section
2.02. Execution, Authentication, Delivery and Dating.
The
Notes shall be executed on behalf of the Issuer by an Authorized Officer of
the
Owner Trustee or the Administrator. The signature of any such Authorized Officer
on the Notes may be manual or facsimile.
Notes
bearing the manual or facsimile signature of individuals who were at any time
Authorized Officers of the Owner Trustee or the Administrator shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to
hold
such offices prior to the authentication and delivery of such Notes or did
not
hold such offices at the date of such Notes.
Subject
to the satisfaction of the conditions set forth in Section 2.08 hereof, the
Indenture Trustee shall, upon Issuer Order, authenticate and deliver the Notes
for original issue in the aggregate principal amounts with respect to each
Class
as specified below:
|
Class
|
Class
Principal Balance
|
|||
|
A-1
|
$
|
491,450,000
|
||
|
A-2
|
$
|
110,900,000
|
||
|
A-3
|
$
|
192,000,000
|
||
|
A-4
|
$
|
66,395,000
|
||
|
M-1
|
$
|
43,450,000
|
||
|
M-2
|
$
|
39,600,000
|
||
|
M-3
|
$
|
24,200,000
|
||
|
M-4
|
$
|
23,100,000
|
||
|
M-5
|
$
|
20,900,000
|
||
|
M-6
|
$
|
18,700,000
|
||
|
B-1
|
$
|
20,350,000
|
||
|
B-2
|
$
|
17,050,000
|
||
|
B-3
|
$
|
10,450,000
|
||
11
The
aggregate principal amounts of such Classes of Notes outstanding at any time
may
not exceed such respective amounts.
The
Notes
that are authenticated and delivered by the Indenture Trustee to or upon the
order of the Issuer on the Closing Date shall be dated the Closing Date. All
other Notes that are authenticated after the Closing Date as a result of
transfer or exchange or for any other purpose under the Indenture shall be
dated
the date of their authentication.
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 in the forms of Notes
at
Exhibit A) 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.
Section
2.03. Registration; Registration of Transfer and Exchange.
The
Issuer shall cause to be kept a register (the “Note Register”) in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide
for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the “Note Registrar” for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If
a
Person other than the Indenture Trustee is appointed by the Issuer as Note
Registrar, the Issuer will give the Indenture Trustee prompt written notice
of
the appointment of such Note Registrar and of the location, and any change
in
the location, of the Note Register, and the Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee shall have the right to conclusively rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and number of such Notes.
Upon
surrender for registration of transfer of any Note at the office or agency
of
the Issuer to be maintained as provided in Section 3.02, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
be entitled to obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denominations, of a like aggregate principal amount. At the option
of
the Holder, Notes may be exchanged for other Notes of the same Class in any
authorized denominations, of a like aggregate principal amount, upon surrender
of the Notes to be exchanged at such office or agency. Whenever any Notes are
so
surrendered for exchange, the Issuer shall execute, and the Indenture Trustee
shall authenticate and the Noteholder shall be entitled to obtain from the
Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
Except
for a transfer made to SFM or to an affiliate of SFM, no transfer of a Note
in
the form of a Definitive Note shall be made unless the Note Registrar shall
have
received a representation from the transferee of such Note, acceptable to and
in
form and substance satisfactory to the Note Registrar and the Depositor (such
requirement is satisfied only by the Note Registrar’s receipt of a transfer
affidavit from the transferee substantially in the form of Exhibit B hereto),
to
the effect that such transferee (i) is not acquiring such Note for, or with
the
assets of, an employee benefit plan or other retirement arrangement that is
subject to Section 406 of ERISA or Section 4975 of the Code or any substantially
similar law (“Similar Law”), or any entity deemed to hold the plan assets of the
foregoing (collectively, “Benefit Plans”), or (ii) its acquisition and holding
of such Note for, or with the assets of, a Benefit Plan will not result in
a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code which is not covered under Prohibited Transaction Class Exemption
(“PTCE”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or some other
applicable exemption, and will not result in a non-exempt violation of any
Similar Law.
12
In
the
case of a Note that is a Book-Entry Note, for purposes of clauses (i) or (ii)
of
the first sentence of the preceding paragraph, such representations shall be
deemed to have been made to the Note Registrar by the transferee’s acceptance of
such Note that is also a Book-Entry Note (or the acceptance by a Note Holder
of
the beneficial interest in such Note).
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
neither the Indenture Trustee nor the Note Registrar shall have any liability
to
any Person for any registration of transfer of any Note that is in fact not
permitted by this Section 2.03 or for making any payments due on such Note
to
the Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement. In addition, neither the Indenture Trustee
nor
the Note Registrar shall be required to monitor, determine or inquire as to
compliance with the transfer restrictions with respect to any Note in the form
of a Book-Entry Note, and neither the Indenture Trustee nor the Note Registrar
shall have any liability for transfers of a Book-Entry Note or any interest
therein made in violation of the restrictions on transfer described in the
Prospectus Supplement and this Agreement.
All
Notes
issued upon any registration of transfer or exchange of Notes shall be the
valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
Any
Note
presented or surrendered for registration of transfer or exchange shall be
duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder thereof
or
such Xxxxxx’s attorney duly authorized in writing, with such signature
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the Exchange
Act.
No
service charge shall be made to a Noteholder for any registration of transfer
or
exchange of Notes, but the Issuer or the Note Registrar may require payment
of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than
exchanges pursuant to Section 2.04 or Section 9.06 not involving any transfer.
13
The
preceding provisions of this Section notwithstanding, the Issuer shall not
be
required to make and the Note Registrar need not register transfers or exchanges
of Notes for a period of 15 days preceding the Payment Date for any payment
with
respect to such Note.
Section
2.04. 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, 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, 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 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone,
and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes.
Section
2.05. 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 none
of
the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture
Trustee shall be affected by notice to the contrary.
14
Section
2.06. Payment
of Principal and Interest.
(a) Each
Class of Notes shall accrue interest at the Interest Rate as set forth in
the
Sale and Servicing Agreement, and such interest shall be payable on each
Payment
Date, subject to Section 3.01. All interest payments on each Class of Notes
shall be made pro
rata
to the
Noteholders of such Class entitled thereto. Any installment of interest or
principal payable on any Note shall be paid on the applicable Payment Date
to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class postage prepaid
to
such Person’s address as it appears on the Note Register on such Record Date or,
upon written request made to the Indenture Trustee at least five Business
Days
prior to the related Record Date, by the Holder of a Note by wire transfer
in
immediately available funds to an account specified in the request and at
the
expense of such Noteholder, except that, unless Definitive Notes have been
issued pursuant to Section 2.11, with respect to Notes registered on the
Record
Date in the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment will be made by wire transfer in immediately
available funds to the account designated by such nominee, except for the
final
installment of principal payable with respect to such Note on a Payment Date
or
on the applicable Maturity Date for such Class of Notes (and except for the
Redemption Price for any Note being redeemed pursuant to Section 10.01 hereof),
which shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section
3.03.
The
principal of each Note shall be payable in installments on each Payment Date
as
provided in the Sale and Servicing Agreement and in the forms of the Notes
set
forth in Exhibit A hereto. Notwithstanding the foregoing, the entire unpaid
principal amount of a Class of Notes, shall be due and payable, if not
previously paid, on the earlier of (i) the applicable Maturity Date, (ii) the
applicable Redemption Date following an Optional Redemption pursuant to Section
7.2 of the Sale and Servicing Agreement, or (iii) the date on which an Event
of
Default shall have occurred and be continuing, if the Indenture Trustee or
the
Majority Controlling Class Noteholders shall have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 hereof.
On
each
Payment Date, all principal payments on each Class of Notes shall be made
pro
rata
to the
Noteholders of such Class entitled thereto based on their respective Note
Principal Balances immediately prior to such Payment Date. The Indenture Trustee
shall notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed or transmitted by facsimile prior
to
such final Payment Date and shall specify that such final installment will
be
payable only upon presentation and surrender of such Note and shall specify
the
place where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemptions of Notes shall be mailed
to
Noteholders as provided in Section 10.02 hereof.
Section
2.07. Cancellation. All Notes surrendered for payment, registration of
transfer or exchange 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 shall 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, 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 Order that they be destroyed or returned
to
it; provided, that such Issuer Order is timely and the Notes have not
been previously disposed of by the Indenture Trustee.
15
Section
2.08. Authentication
of Notes.
(a) The
Notes
shall be authenticated by the Indenture Trustee, upon Issuer Request and upon
receipt by the Indenture Trustee of the following:
(i) An
Issuer
Order authorizing the execution and authentication of such Notes;
(ii) All
of
the items of Collateral that are to be delivered to the Indenture Trustee or
its
designee;
(iii) An
executed counterpart of the Trust Agreement, the Indenture, the Administration
Agreement, and the Sale and Servicing Agreement and an executed original of
the
Class X Certificate, the Trust Certificate and the Certificate of
Trust;
(iv) Except
to
the extent provided in subsection (b) below, Opinions of Counsel addressed
to
the Indenture Trustee to the effect that:
(A) the
Issuer has been duly formed and is validly existing as a statutory trust under
the laws of the State of Delaware, and has power, authority and legal right
to
execute and deliver this Indenture and the other Operative Agreements to which
it is a party;
(B) the
issuance of the Notes has been duly and validly authorized by the
Issuer;
(C) the
Notes, when executed and authenticated in accordance with the provisions of
this
Indenture and delivered against payment therefor, will be the legal, valid
and
binding obligations of the Issuer pursuant to the terms of this Indenture and
will be entitled to the benefits of this Indenture, and will be enforceable
in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent or preferential conveyance and other similar
laws of general application affecting the rights of creditors generally and
to
general principles of equity (regardless of whether such enforcement is
considered in a Proceeding in equity or at law);
16
(D) all
conditions precedent provided for in this Indenture relating to the
authentication of the Notes have been complied with;
(E) assuming
due authorization, execution and delivery thereof by the Indenture Trustee,
this
Indenture has been duly executed and delivered by Issuer and constitutes the
legal, valid and binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent or preferential conveyance
and other similar laws of general application affecting the rights of creditors
generally and to general principles of equity (regardless of whether such
enforcement is considered in a Proceeding in equity or at law);
(F) the
Issuer is not required to be registered under the Investment Company Act of
1940, as amended;
(G) the
Issuer will not be characterized as an association (or publicly traded
partnership) taxable as a corporation;
(H) the
provisions of this Indenture are sufficient to create a valid security interest
in favor of the Indenture Trustee in the Collateral;
(I) this
Indenture has been duly qualified under the Trust Indenture Act;
and
(J) upon
the
filing of a Form UCC1 against the Issuer in the appropriate filing office in
the
State of Delaware, the Indenture Trustee will have a perfected, first priority
security interest in the Mortgage Notes under the UCC.
(v) An
Officer’s Certificate of the Depositor on behalf of the Issuer complying with
the requirements of Section 11.01 and stating that:
(A) the
Issuer is not in Default under this Indenture and the issuance of the Notes
will
not result in any breach of any of the terms, conditions or provisions of,
or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Issuer is a party or by which it is bound,
or any order of any court or administrative agency entered in any Proceeding
to
which the Issuer is a party or by which it may be bound or to which it may
be
subject;
(B) the
Issuer (i) has good and marketable title to the Mortgage Loans being Granted
to
the Indenture Trustee hereunder and has acquired its ownership in such
Collateral in good faith without notice of any adverse claim, (ii) has not
assigned, pledged or otherwise encumbered any interest or participation in
the
Mortgage Loans and has acquired its ownership in such Collateral in good faith
without notice of any adverse claim (or, if any such interest or participation
has been assigned, it has been released) other than interests Granted pursuant
to this Indenture and (iii) has the right to Grant a security interest in and
pledge all of its right, title and interest in the Mortgage Loans to the
Indenture Trustee;
17
(C) this
Indenture creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code) in the Mortgage Loans in favor of the
Indenture Trustee on behalf of the Noteholders, which security interest is
prior
to all other liens, and is enforceable as such as against creditors of and
purchasers from the Issuer;
(D) the
Mortgage Notes constitute “instruments” and the Issuer’s rights under the Sale
and Servicing Agreement and the Administration Agreement constitute “general
intangibles” as such terms are defined in the applicable Uniform Commercial
Code;
(E) the
Issuer has Granted to the Indenture Trustee all of its right, title, and
interest in the Collateral and has delivered or caused the same to be delivered
to the Indenture Trustee registered in the name of the Indenture Trustee or
the
Custodian;
(F) other
than the security interest Granted to the Indenture Trustee in the Collateral
pursuant to the provisions to this Indenture, the Issuer has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any
interest in the Collateral. The Issuer is not aware of any judgment or tax
lien
filings against the Issuer which would constitute a lien against the Collateral
and has not authorized the filing of and is not aware of any financing
statements against the Issuer that include a description of the Collateral
other
than any financing statement (i) relating to the security interest granted
to
the Indenture Trustee hereunder or (ii) that has been terminated;
(G) a
Form
UCC1 against the Issuer for the benefit of the Indenture Trustee and the
Noteholders with respect to the Collateral shall be filed no later than ten
days
after the Closing Date and name the Indenture Trustee as secured party in such
Collateral;
(H) none
of
the security certificates that constitute or evidence the Collateral have any
marks or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Indenture Trustee;
(I) attached
thereto is a true and correct copy of each letter signed by each Rating Agency
to the effect that the Notes have been assigned the Required Rating;
and
(J) all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of the Notes have been complied with.
18
(b) The
representations and warranties made pursuant to the foregoing Officer’s
Certificate shall survive the discharge of this Indenture and may not be waived
by any party hereto. The Opinions of Counsel to be delivered pursuant to
subsection (a)(iv) above may differ from the Opinions of Counsel described
in
such subsection so long as such Opinions of Counsel so delivered are acceptable
to the Rating Agencies, which shall be conclusively evidenced by the Rating
Agencies’ issuance of their letters pursuant to subsection (a)(v)(I) above and
such acceptable opinions shall be deemed to be the Opinions of Counsel required
pursuant to subsection (a)(iv) above.
Section
2.09. Book-Entry
Notes.
Each
Class of Notes will be issued in the form of typewritten Notes or Global
Securities representing the Book-Entry Notes, to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Issuer. The Book-Entry
Notes
shall be registered initially on the Note Register in the name of Cede &
Co., the nominee of DTC, and no owner thereof will receive a definitive Note
representing such Note Owner’s interest in such Note, except as provided in
Section 2.11. Unless and until definitive, fully registered Notes (the
“Definitive Notes”) have been issued to such Note Owners pursuant to
Section 2.11:
(i) the
provisions of this Section shall be in full force and effect;
(ii) the
Note
Registrar and the Indenture Trustee shall be entitled to deal with the Clearing
Agency for all purposes of this Indenture (including the payment of principal
of
and interest on the Notes and the giving of instructions or directions
hereunder) as the sole Holder of the Notes, and shall have no obligation to
the
Note Owners;
(iii) to
the
extent that the provisions of this Section conflict with any other provisions
of
this Indenture, the provisions of this Section shall control;
(iv) the
rights of Note Owners shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such Note
Owners and the Clearing Agency and/or the Clearing Agency Participants pursuant
to the procedures of the Clearing Agency. Unless and until Definitive Notes
are
issued pursuant to Section 2.11, the initial Clearing Agency will make
Book-Entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(v) whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders of Notes evidencing a specified percentage of the
Outstanding Amount of the Notes, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received instructions
to such effect from Note Owners and/or Clearing Agency Participants owning
or
representing, respectively, such required percentage of the beneficial interest
in the Notes and has delivered such instructions to the Indenture
Trustee.
Section
2.10. Notices
to Clearing Agency.
Whenever
a notice or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to such
Note
Owners pursuant to Section 2.11, the Indenture Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Notes
to the Clearing Agency, and shall have no obligation to such Note
Owners.
19
Section
2.11. Definitive
Notes.
If (i)
DTC or the Issuer advises the Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Book-Entry Notes and the Indenture Trustee is unable
to
locate a qualified successor or (ii) after the occurrence of an Event of
Default, Owners of the Book-Entry Notes representing beneficial interests
aggregating at least a majority of the Outstanding Amount of Book-Entry Notes
advise the Clearing Agency in writing that the continuation of a Book-Entry
system through the Clearing Agency is no longer in the best interests of
such
Note Owners, then the Clearing Agency shall notify all Note Owners and the
Indenture Trustee of the occurrence of such event and of the availability
of
Definitive Notes to Note Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Notes representing the Book-Entry Notes
by
the Clearing Agency, accompanied by registration instructions, the Issuer
shall
execute and the Indenture Trustee shall authenticate the Definitive Notes
in
accordance with the instructions of the Clearing Agency. 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.
20
Section
2.12. Tax. 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 secured by the
Collateral (except that any Retained Note shall not be treated as outstanding
indebtedness for such purposes). The Issuer, by entering into this Indenture,
and each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of an interest in the applicable Book-Entry Note), agree to treat
the
Notes for federal, state and local income, single business and franchise tax
purposes in a manner consistent with this intention.
ARTICLE
III.
COVENANTS
Section
3.01. Payment
of Principal and Interest. The
Issuer will duly and punctually pay (or will cause to be duly and punctually
paid) the principal of and interest on the Notes in accordance with the terms
of
the Notes and this Indenture. Without limiting the foregoing, unless the Notes
have been declared due and payable pursuant to Section 5.02 and monies
collected by the Indenture Trustee are being applied in accordance with
Section 5.04(b), subject to and in accordance with Section 8.02, the Issuer
will cause to be paid amounts on deposit in the Payment Account on each Payment
Date, pursuant to the Sale and Servicing Agreement and to the extent provided
by
Section 4.1 thereof, to the Holders of each Class of Notes. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
The
Notes
shall be non-recourse obligations of the Issuer and shall be limited in right
of
payment to amounts available from the Collateral as provided in this Indenture.
The Issuer shall not otherwise be liable for payments of the Notes, and none
of
the owners, agents, officers, directors, employees, trustees or successors
or
assigns of the Issuer shall be personally liable for any amounts payable, or
performance due, under the Notes or this Indenture. If any other provision
of
this Indenture shall be deemed to conflict with the provisions of this Section
3.01, the provisions of this Section 3.01 shall control.
Section
3.02. Maintenance
of Office or Agency. The
Issuer will or will cause the Indenture Trustee to maintain in an office or
agency where Notes may be surrendered for registration of transfer or exchange.
As of the Closing Date, the Indenture Trustee designates the following office
for such purposes: DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Transfer Unit. Notices to or upon the Issuer
in
respect of the Notes and this Indenture may be delivered to the Corporate Trust
Office. The Issuer hereby initially appoints the Indenture Trustee to serve
as
its agent for the foregoing purposes and to serve as Paying Agent with respect
to the Notes. The Issuer will give prompt written notice to the Indenture
Trustee of the appointment of new or additional paying agents for the Notes,
the
location, and of any change in the location, of any such office or agency.
If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such notices
and
demands may be made or delivered to the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such notices
and demands.
21
Section
3.03. Money
for Payments To Be Held in Trust. 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 Article 4
of
the Sale and Servicing Agreement shall be made on behalf of the Issuer by the
Indenture Trustee or by the Paying Agent.
On
or
before the Business Day preceding each Payment Date or Redemption Date, the
Issuer shall deposit or cause to be deposited in the Payment Account an
aggregate sum sufficient to pay the amounts then becoming due under the Notes,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless the Paying Agent is the Indenture Trustee) shall promptly notify
the
Indenture Trustee of its action or failure so to act.
Any
Paying Agent other than the Indenture Trustee shall be appointed by Issuer
Order
with written notice thereof to the Indenture Trustee. Any Paying Agent appointed
by the Issuer shall be a Person who would be eligible to be Indenture Trustee
hereunder as provided in Section 6.11. The Issuer shall not appoint any Paying
Agent (other than the Indenture Trustee) which is not, at the time of such
appointment, a Depository Institution.
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, 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 (or any other obligor
upon
the Notes) 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 a 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; provided,
however,
that
with respect to withholding and reporting requirements applicable to original
issue discount (if any) on the Notes, the Issuer shall have first provided
the
calculated amounts pertaining thereto to the Indenture Trustee.
22
The
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct
any
Paying Agent to pay to the 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. 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 or abandoned property,
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 two
years
after such amount has become due and payable shall be discharged from such
trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the 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 a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, 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 shall also adopt and employ, at the expense and direction
of the Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose right to or interest in moneys 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.
(a) The
Issuer will keep in full effect its existence, rights and franchises as a
statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuer hereunder is or becomes, organized under the laws of any
other State or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of
such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes and the Collateral.
(b) Any
successor to the Owner Trustee appointed pursuant to Section 9.02 of the Trust
Agreement shall be the successor Owner Trustee under this Indenture without
the
execution or filing of any paper, instrument or further act to be done on the
part of the parties hereto.
(c) Upon
any
consolidation or merger of or other succession to the Owner Trustee, the Person
succeeding to the Owner Trustee under the Trust Agreement may exercise every
right and power of the Owner Trustee under this Indenture with the same effect
as if such Person had been named as the Owner Trustee herein.
23
Section
3.05. Protection
of Collateral. The
Issuer will from time to time, and upon direction of the Majority Controlling
Class Noteholders, 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) provide
further assurance with respect to the Grant of all or any portion of the
Collateral;
(ii) maintain
or preserve the lien and security interest (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof;
(iii) perfect,
publish notice of or protect the validity of any Grant made or to be made by
this Indenture;
(iv) enforce
any rights with respect to the Collateral; or
(v) preserve
and defend title to the Collateral and the rights of the Indenture Trustee
and
the Noteholders in such Collateral against the claims of all Persons and
parties.
The
Issuer hereby designates the Administrator its agent and attorney-in-fact to
execute any financing statement, continuation statement or other instrument
provided to the Administrator by the Depositor and required to be executed
pursuant to this Section 3.05.
Section
3.06. Performance of Obligations.
(a) The
Issuer will not take any action and will use its best efforts not to permit
any
action to be taken by others that would release any Person from any of such
Person’s material covenants or obligations under any instrument or agreement
included in the Collateral or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly provided
in this Indenture, the Sale and Servicing Agreement or such other instrument
or
agreement.
(b) The
Issuer may contract with or otherwise obtain the assistance of other Persons
(including, without limitation, the Administrator or the Depositor under the
Administration Agreement) 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
Depositor and the Administrator to assist the Issuer in performing its duties
under the Indenture. The Administrator must at all times be the same Person
as
the Indenture Trustee.
(c) The
Issuer will punctually perform and observe all of its obligations and agreements
contained in this Indenture, any other Operative Agreements to which it is
a
party and in the instruments and agreements included in the Collateral,
including but not limited to (i) filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of
this
Indenture and the Sale and Servicing Agreement and (ii) recording or causing
to
be recorded all Mortgages, Assignments of Mortgage, all intervening Assignments
of Mortgage and all assumption and modification agreements required to be
recorded by the terms of the Sale and Servicing Agreement, in accordance with
and within the time periods provided for in this Indenture and/or the Sale
and
Servicing Agreement, as applicable. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate
any
Operative Agreement or any provision thereof without the consent of the
Indenture Trustee and the Holders of a majority of the Outstanding Amount of
the
Notes.
24
(d) If
the
Issuer shall have knowledge of the occurrence of an Event of Default under
the
Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee and the Rating Agencies thereof in writing, and shall specify in such
notice the action, if any, the Issuer is taking with respect to such
default.
(e) As
promptly as possible after the giving of notice to the Master Servicer of the
termination of the Master Servicer’s rights and powers pursuant to Section 8.3
of the Sale and Servicing Agreement, the Indenture Trustee shall proceed in
accordance with Section 8.3 of the Sale and Servicing Agreement.
(f) Without
derogating from the absolute nature of the assignment granted to the Indenture
Trustee under this Indenture or the rights of the Indenture Trustee hereunder,
the Issuer agrees that it will not, without the prior written consent of the
Majority Controlling Class Noteholders (i) amend, xxxxxx, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to
the
extent otherwise provided in the Sale and Servicing Agreement) or (ii) waive
timely performance or observance by the Depositor under the Sale and Servicing
Agreement. If any such amendment, modification, supplement or waiver shall
be so
consented to by such Holders, the Issuer agrees, promptly following a request
by
the Indenture Trustee, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as may
be
deemed necessary or appropriate in the circumstances.
Section
3.07. Negative
Covenants. So
long
as any Notes are Outstanding, the Issuer shall not:
(a) except
as
expressly permitted by this Indenture, any Sales Agreement or Subsequent Sales
Agreement, the Trust Agreement or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties or assets
of
the Issuer, including those included in the Collateral, unless directed to
do so
by the Indenture Trustee;
(b) claim
any
credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments
under the Code) or assert any claim against any present or former Noteholder
by
reason of the payment of the taxes levied or assessed upon any part of the
Collateral;
(c) engage
in
any business or activity other than as permitted by the Trust Agreement or
the
Sale and Servicing Agreement or other than in connection with, or relating
to,
the issuance of Notes pursuant to this Indenture, or take any action under
Section 5.06 of the Trust Agreement that requires prior written consent of
the
Noteholders without such consent;
25
(d) issue
debt obligations under any other indenture;
(e) incur
or
assume any indebtedness or guarantee any indebtedness of any Person, except
for
such indebtedness as may be incurred by the Issuer in connection with the
issuance of the Notes pursuant to this Indenture;
(f) dissolve
or liquidate in whole or in part or merge or consolidate with any other Person;
(g) (A)
permit the validity or effectiveness of this Indenture to be impaired, or permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the Collateral
or any part thereof or any interest therein or the proceeds thereof (other
than
any junior liens or tax liens, mechanics’ liens and other liens that arise by
operation of law, in each case on any of the Mortgaged Properties and arising
solely as a result of an action or omission of the related Mortgagors), or
(C)
permit the lien of this Indenture not to constitute a valid first priority
(other than with respect to any such tax, mechanic’s or other lien) security
interest in the Collateral;
(h) remove
the Administrator without cause unless the Rating Agency Condition shall have
been satisfied in connection with such removal; or
(i) take
any
other action or fail to take any action which may cause the Issuer to be taxable
as (a) an association pursuant to Section 7701 of the Code and the
corresponding regulations, (b) a publicly traded partnership pursuant to Section
7704 of the Code and the corresponding regulations or (c) as a taxable
mortgage pool pursuant to Section 7701(i) of the Code and the corresponding
regulations.
Section
3.08. Covenants
of the Issuer. All
covenants of the Issuer in this Indenture are covenants of the Issuer and are
not covenants of the Owner Trustee. The Owner Trustee is, and any successor
Owner Trustee under the Trust Agreement will be, executing this Indenture solely
as Owner Trustee under the Trust Agreement and not in its respective individual
capacity, and in no case whatsoever shall the Owner Trustee or any such
successor Owner Trustee be personally liable on, or for any loss in respect
of,
any of the statements, representations, warranties or obligations of the Issuer
hereunder, as to all of which the parties hereto agree to look solely to the
property of the Issuer.
Section
3.09. 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 Indenture
Trustee, the Owner Trustee, the Master Servicer, any Servicer and the
Securityholders as contemplated by, and to the extent funds are available for
such purpose under the Indenture, the Sale and Servicing Agreement or the Trust
Agreement and (y) payments to the Indenture Trustee or the Administrator
pursuant to the Administration Agreement. The Issuer will not, directly or
indirectly, make or cause to be made payments to or distributions from the
Trust
Accounts except in accordance with this Indenture and the other Operative
Agreements.
26
Section
3.10. Treatment
of Notes as Debt for Tax Purposes. The
Issuer shall, and shall cause the Administrator and the Master Servicer to,
treat the Notes as indebtedness for all federal, state and local, single
business and franchise tax purposes (except that any Retained Note shall not
be
treated as outstanding indebtedness for such purposes).
Section
3.11. Notice
of Events of Default. The
Issuer shall give the Indenture Trustee and the Rating Agencies prompt written
notice of each Event of Default hereunder and each default on the part of the
Servicer or the Master Servicer under the Sale and Servicing
Agreement.
Section
3.12. 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
3.13. Annual
Statement as to Compliance. So
long
as the Notes are outstanding, the Issuer will deliver to the Indenture Trustee,
on or before March 1 of each calendar year (commencing with the fiscal year
2007), an Officer’s Certificate stating, as to the Authorized Officer signing
such Officer’s Certificate, that:
(i) a
review
of the activities of the Issuer during the previous year and of its performance
under this Indenture has been made under such Authorized Officer’s supervision;
and
(ii) to
the
best of such Authorized Officer’s knowledge, based on such review, the Issuer
has complied with all conditions and covenants under this Indenture throughout
the previous year, or, if there has been a default in its compliance with any
such condition or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
ARTICLE
IV.
SATISFACTION
AND DISCHARGE
Section
4.01. Satisfaction
and Discharge of Indenture. This
Indenture shall be discharged and cease to be of further effect with respect
to
the Notes and Collateral securing the Notes when either (i) the Sale and
Servicing Agreement has been terminated pursuant to Article 7 thereof or (ii)
all of the following have occurred:
(a) either
27
(1) all
Notes
theretofore authenticated and delivered (other than (A) Notes that have been
mutilated, destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.04 and (B) 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 within one year of
the
Maturity Date (or, if one or more Classes of Notes have different Maturity
Dates, the latest Maturity Date), or (C) are to be called for redemption within
one year under arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer, and the Issuer 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
on
the applicable Maturity Date of such Class of Notes or the Redemption Date
(if
Notes are called for redemption pursuant to Section 10.01(a) hereof), as the
case may be;
(b) the
date
on which the Issuer has paid or caused to be paid all other sums payable
hereunder and no other amounts will become due and payable by the Issuer;
and
(c) the
Issuer has delivered to the Indenture Trustee an Officer’s Certificate and an
Opinion of Counsel (at the Issuer’s expense) and (if required by Section 3.14(c)
of the TIA or the Indenture Trustee) an Independent Certificate from a firm
of
certified public accountants, each meeting the applicable requirements of
Section 11.01(a) hereof and, subject to Section 11.02 hereof (and with respect
to any Independent Certificate, subject to Section 11.01(f) hereof), each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Notes have
been
complied with, then, upon Issuer Request, this Indenture and the lien, rights,
and interests created hereby 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, 3.05, 3.07 and 3.08 hereof, (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 4.02 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). For purposes of providing
any
tax information to Noteholders pursuant to Section 6.06 hereof, the Indenture
Trustee shall not treat a deposit made by the Issuer (or that the Issuer has
caused to be made), pursuant to Section 4.01(a)(2) hereof, prior to the time
at
which the Notes become due and payable, or prior to the date on which such
Notes
are called for redemption, as a payment by the Issuer on, or in retirement
of,
the Notes.
The
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
and deliver proper instruments acknowledging satisfaction and discharge of
this
Indenture with respect to the Notes, and shall pay, or assign or transfer and
deliver, to or at the direction of the Issuer, all Collateral held by it after
satisfaction of the conditions specified in clauses (a), (b) and (c)
above.
28
Section
4.02. Application
of Trust Money. All
moneys deposited with the Indenture Trustee pursuant to Sections 3.03 and 4.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly
or
through any Paying Agent, as the Indenture Trustee may determine, to the Holders
of the Notes for the payment of all sums due and to become due thereon for
principal and interest; but such moneys need not be segregated from other funds
except to the extent required herein or in the Sale and Servicing Agreement
or
otherwise required by law.
Section
4.03. Repayment
of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to
the Notes, all moneys then held by any Paying Agent other than the 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 3.03 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
ARTICLE
V.
EVENTS
OF
DEFAULT; REMEDIES
Section
5.01. Events
of Default.
(a)
“Event of Default,” wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) a
default
in the payment of Current Interest in respect of any Class of Notes when the
same becomes due and payable, and the continuance of such default for a period
of thirty (30) days; or
(ii) a
default
in the payment of the entire Class Principal Balance of any Note on the
applicable Maturity Date; or
(iii) either
the Issuer or the pool of Collateral becomes an “investment company” required to
be registered under the Investment Company Act of 1940, as amended; or
(iv) default
in the observance or performance of any covenant or agreement of the Issuer
made
in this Indenture (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this Section specifically
dealt with), or any representation or warranty of the Issuer made in this
Indenture, the Sale and Servicing Agreement 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 60 days
after
there shall have been given, by registered or certified mail, to the Issuer
by
the Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders
of at least 25% of the Outstanding 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
29
(v) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of the Issuer or any substantial part of the Collateral
in
an involuntary case under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of
the Issuer or for any substantial part of the Collateral, or ordering the
winding-up or liquidation of the Issuer’s affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days;
(vi) the
commencement by the Issuer of a voluntary case under any applicable federal
or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or
the consent by the Issuer to the entry of an order for relief in an involuntary
case under any such law, or the consent by the Issuer to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part
of
the Collateral, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay its debts
as
such debts become due, or the taking of any action by the Issuer in furtherance
of any of the foregoing;
(vii) the
receipt of notice from the Holder of the Trust Certificate or the Class X
Certificate to the Indenture Trustee of such Holder’s failure to qualify as a
REIT or a Qualified REIT Subsidiary; or
(viii) a
transfer of the Class X Certificate or the Trust Certificate that causes the
Class X Certificate and the Trust Certificate not to be beneficially owned
(directly or indirectly through Qualified REIT Subsidiaries) by the same
REIT.
(b) The
Issuer shall deliver to a Responsible Officer of the Indenture Trustee, within
five days after the occurrence thereof, written notice in the form of an
Officer’s Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default, 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.
(a) If
an
Event of Default should occur and be continuing of which a Responsible Officer
of the Indenture Trustee has Actual Knowledge, then and in every such case
the
Indenture Trustee may, and shall at the written direction of the Majority
Controlling Class Noteholders, declare all the Notes to be immediately due
and
payable, by a notice in writing to the Issuer, and upon any such declaration
the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable.
30
(b) At
any
time after such declaration of acceleration of maturity has been made and before
a judgment or decree for payment of the money due has been obtained by the
Indenture Trustee as hereinafter in this Article V provided, the Majority
Controlling Class Noteholders, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if the
Issuer has paid or deposited with the Indenture Trustee a sum sufficient to
pay:
(i) all
payments of principal of and interest on all Controlling Class Notes and all
other amounts that would then be due hereunder or upon such Controlling Class
Notes if the Event of Default giving rise to such acceleration had not occurred;
and
(ii) all
sums
paid or advanced by the Indenture Trustee and Administrator hereunder and the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel; and
(iii) 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 5.11.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereto.
The
Holders of Notes of a Non-Priority Class shall have no right to exercise any
remedies of Noteholders under this Article V, except to the extent otherwise
expressly provided herein.
Section
5.03. Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) If
an
Event of Default occurs and is continuing, the Indenture Trustee may and shall,
at the written direction of the Majority Controlling Class Noteholders, as
more
particularly provided in Section 5.04, proceed to protect and enforce its rights
and the rights of the Noteholders, by such appropriate Proceedings as shall
be
deemed 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.
31
(b) In
case
there shall be pending, relative to the Issuer or any other obligor upon
the
Notes or any Person having or claiming an ownership interest in the Collateral,
Proceedings under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or in case
a
receiver, assignee or trustee in bankruptcy or reorganization, 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, upon the direction of the Majority Controlling Class
Noteholders, 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 the Administrator, each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee (except as a result of negligence or bad
faith)), and of the Noteholders allowed in such Proceedings;
(ii) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of Notes in any election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;
(iii) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Noteholders and the Indenture Trustee on their behalf;
(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;
(v) 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;
(vi) 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 benefit of the Holders
of the Notes; and
32
(vii) 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 Noteholders, 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, of which a Responsible
Officer of the Indenture Trustee has Actual Knowledge, the Indenture Trustee
may, and at the written direction of the Majority Controlling Class Noteholders
shall, do one or more of the following (if it shall have grounds for believing
that reimbursement of its expenses incurred in connection herewith and indemnity
satisfactory to it against such risk or liability is assured to it) (subject
to
Section 5.05 and Section 5.15):
(i) institute
Proceedings in its own name (as Indenture Trustee) and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this
Indenture with respect thereto, whether by declaration or otherwise, enforce
any
judgment obtained, and collect from the Issuer and any other obligor upon such
Notes monies adjudged due;
(ii) institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture with respect to the Collateral;
(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
or the Noteholders; and
(iv) sell
the
Collateral or any portion thereof or rights or interest therein in a
commercially reasonable manner, 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 Collateral
following an Event of Default, unless (A) the Holders of at least 66 2/3% of
the
Outstanding Amount of the Notes of the Controlling Class consent thereto, (B)
the proceeds of such sale or liquidation distributable to the Noteholders are
sufficient to discharge in full all amounts then due and unpaid upon the Notes
for principal and interest or (C) the Indenture Trustee determines that the
Collateral will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as they would have become due if the
Notes had not been declared due and payable, and the Indenture Trustee obtains
the consent of the Holders of at least 66 2/3% of the Outstanding Amount of
the
Notes of the Controlling Class. In determining such sufficiency or insufficiency
with respect to clauses (B) and (C), the Indenture Trustee shall obtain at
the
cost of the Issuer and conclusively rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Collateral
for such purpose.
33
(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 any costs or expenses incurred by it in connection with
the enforcement of the remedies provided for in this Article V and for any
other
unpaid amounts due to the Indenture Trustee hereunder, to the Administrator
for
any amounts due and owing to it under the Administration Agreement, and to
the
Owner Trustee, to the extent of any amounts due and owing to it under the
Operative Agreements (including pursuant to Section 7.02 of the Trust Agreement)
and for any other unpaid amounts due to the Owner Trustee
hereunder;
second:
pro
rata
to the
Master Servicer and the Servicer for any Master Servicing Fees, Retained
Interest or Servicing Fees then due and unpaid and any unreimbursed Advances
and
other servicing advances, to the payment of any unpaid PMI Insurance Premium
and
to the payment to the Counterparty of any Priority Swap Termination Payment
or
Net Swap Payment payable to it;
third:
to the
Notes, all accrued and unpaid interest thereon and amounts in respect of
principal (i) first, pro
rata
to the
Class A Notes, based on the accrued but unpaid interest thereon or the
outstanding principal amount thereof, as applicable, (ii) second, to the
remaining Classes of Notes, in the order of priority set forth in Section 4.1(a)
of the Sale and Servicing Agreement; provided,
however,
that
accrued and unpaid interest shall be paid to Noteholders of each Class before
any payments in respect of principal;
fourth:
to the
Counterparty for any Swap Termination Payment other than a Priority Swap
Termination Payment payable to it, and
fifth: to
the
Certificate Account for distribution to the holder of the
Certificates.
The
Indenture Trustee may fix a record date and payment date for any payment to
be
made to the Noteholders pursuant to this Section. At least 15 days before such
record date, the Indenture Trustee shall mail to each Noteholder and the Issuer
a notice that states the record date, the payment date and the amount to be
paid.
Section
5.05. Limitation
of Suits. No
Holder
of any Note shall have any right to institute any Proceeding under Title 11
of
the United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;
34
(b) Majority
Controlling Class Noteholders 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;
(c) such
Holder or Holders have offered to the Indenture Trustee indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred in complying
with such request;
(d) the
Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute such Proceedings; and
(e) no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Majority Controlling Class
Noteholders.
It
is
understood and intended that no one or more Holders of Notes shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Notes or to obtain or to seek to obtain priority or preference over any
other
Holders or to enforce any right under this Indenture, except in the manner
herein provided.
Section
5.06. 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 Maturity Date (or, in
the
case of redemption, on or after the Redemption Date) and to institute suit
for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
Section
5.07. 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
5.08. 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
5.09. Delay
or Omission Not a Waiver. No
delay
or omission of the Indenture Trustee or any Holder of any Note to exercise
any
right or remedy accruing upon any Default or Event of Default shall impair
any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this Article
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.
35
Section
5.10. Control by Noteholders. The
Majority Controlling Class Noteholders 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:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture;
(b) subject
to the express terms of Section 5.04, any direction to the Indenture Trustee
to
sell or liquidate the Collateral shall be by Holders of Notes representing
not
less than 100% of the Outstanding Amount of the Controlling Class Notes;
and
(c) the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction.
Notwithstanding
the rights of the Noteholders set forth in this Section, subject to Section
6.01, 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.
The
Indenture Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by or pursuant to this Indenture at the request, order
or
direction of any of the Majority Controlling Class Noteholders, unless such
Holders shall have offered to the Indenture Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request, order or direction.
Section
5.11. Waiver
of Past Defaults. Prior
to
the declaration of the acceleration of the maturity of the Notes as provided
in
Section 5.02, the Majority Controlling Class Noteholders may waive any past
Default or Event of Default and its consequences except a Default (a) in the
payment of interest on any of the Notes or (b) in respect of a covenant or
provision hereof that cannot be modified or amended, in each case without the
consent of the Holder of each Note, as applicable. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall
be
restored to their former positions and rights hereunder, respectively; but
no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
Upon
any
such waiver, such Default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall
be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or
Event of Default or impair any right consequent thereto.
Section
5.12. 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 shall not apply to (a) any suit instituted
by
the Indenture Trustee, (b) any suit instituted by any Noteholder, or group
of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount 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.
36
Section
5.13. Waiver
of Stay or Extension Laws. The
Issuer covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, that may affect the covenants or the performance
of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it
will not hinder, delay or impede the execution of any power herein granted
to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section
5.14. Action on Notes. The
Indenture Trustee’s right to seek and recover judgment on the Notes or under
this Indenture shall not be affected by the seeking, obtaining or application
of
any other relief under or with respect to this Indenture. Neither the lien
of
this Indenture nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Collateral or upon any of the assets of the Issuer.
Any
money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.04(b).
Section
5.15. Optional
Preservation of the Collateral. If
the
Notes have been declared to be due and payable under Section 5.02 following
an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Collateral. In determining whether to maintain
possession of the Collateral, the Indenture Trustee may, but need not, obtain
and rely upon an opinion (at the expense of the Issuer) of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Collateral
for such purpose.
Section
5.16. Performance
and Enforcement of Certain Obligations.
(a) Promptly
following a request from the Indenture Trustee to do so and at the Issuer’s
expense, the Issuer shall take all such lawful action as the Indenture Trustee
may request to compel or secure the performance and observance by the Seller,
the Depositor and the Master Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sales Agreement and
the Sale and Servicing Agreement, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default
on
the part of the Seller thereunder and the institution of legal or administrative
actions or Proceedings to compel or secure performance by the Seller, the
Depositor or the Master Servicer of each of their obligations under the Sale
and
Servicing Agreement and the Sales Agreement.
37
(b) If
an
Event of Default of which a Responsible Officer of the Indenture Trustee has
Actual Knowledge has occurred and is continuing, the Indenture Trustee may,
and
at the direction (which direction shall be in writing) of the Majority
Controlling Class Noteholders shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Depositor or the Master Servicer
under or in connection with the Sale and Servicing Agreement or the Seller
under
or in connection with the Sales Agreement, including the right or power to
take
any action to compel or secure performance or observance by the Seller, the
Depositor or the Master Servicer of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension, or waiver under the Sale and Servicing Agreement or Sales Agreement,
and any right of the Issuer to take such action shall 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, the Indenture Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee; and
(ii) in
the
absence of bad faith on its part, the Indenture Trustee may conclusively rely
and shall be fully protected in acting or refraining from acting, 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 on their face to the requirements of this Indenture.
(c) The
Indenture Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section;
38
(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 by a court of competent
jurisdiction that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) the
Indenture Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with this Agreement or upon a
direction received by it pursuant to Sections 3.03, 5.02, 5.10 and 5.16 or
any other direction of the Majority Controlling Class Noteholders relating
to
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee, or exercising or omitting to exercise any trust or
power conferred upon the Indenture Trustee under this Indenture;
(iv) the
Indenture Trustee shall not be liable for interest on any money received by
it;
(v) money
held in trust by the Indenture Trustee shall be segregated from other funds
except to the extent permitted by law or the terms of this Indenture or the
Sale
and Servicing Agreement;
(vi) 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
indemnity satisfactory to it against such risk or liability is not reasonably
assured to it;
(vii) 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;
(viii) the
Indenture Trustee shall not be required to take notice or be deemed to have
notice or knowledge of any default or Event of Default (except an Event of
Default described in Section 5.01(a)(i)) unless a Responsible Officer of the
Indenture Trustee shall have Actual Knowledge thereof; in the absence of such
Actual Knowledge, the Indenture Trustee may conclusively assume that there
is no
default or Event of Default; and
(ix) anything
in this Agreement to the contrary notwithstanding, in no event shall the
Indenture Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits),
even
if the Indenture Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(d) The
Indenture Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Collateral, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Indenture Trustee is a party, except as expressly provided (i) in accordance
with the powers granted to and the authority conferred upon the Indenture
Trustee pursuant to this Agreement or any other Operative Agreement, and (ii)
in
accordance with any document or instruction delivered to the Indenture Trustee
pursuant to the terms of this Agreement or any other Operative Agreement to
which it is a party; and no implied duties or obligations shall be read into
this Agreement or any Operative Agreement against the Indenture Trustee. The
Indenture Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any tax return for the Issuer. The Indenture
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Collateral that result from actions by, or claims against itself that are not
related to the administration of the Collateral.
39
(e) 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 conclusively rely on and shall be fully protected in
acting in good faith upon 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 any such 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 an 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 such agent, attorney, custodian or
nominee appointed by the Indenture Trustee with due care.
(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
such action or omission by the Indenture Trustee does not constitute willful
misconduct, negligence or bad faith.
(e) The
Indenture Trustee may consult with counsel, and the advice or opinion of counsel
or any Opinion of Counsel with respect to legal matters relating to or arising
out of the Operative Agreements shall be full and complete authorization and
protection from liability with 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. The Issuer shall be responsible for the reasonable costs and
expenses of any such counsel.
(f) The
Indenture Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by the Majority Controlling
Class
Noteholders; provided,
however,
that if
the payment within a reasonable time to the Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee, not reasonably
assured to the Indenture Trustee by the security afforded to it by the terms
of
this Indenture, the Indenture Trustee may require indemnity reasonably
satisfactory to it against such cost, expense or liability as a condition to
taking any such action. The expense of every such investigation shall be paid
by
the Issuer or, if paid by the Indenture Trustee, shall be repaid by the Issuer
upon demand.
40
(g) The
right
of the Indenture Trustee to perform any discretionary act enumerated in this
Agreement shall not be construed as a duty, and the Indenture Trustee shall
not
be answerable for other than its negligence or willful misconduct in the
performance of such act.
(h) The
Indenture Trustee shall not be required to give any bond or surety in respect
of
the execution of the powers granted hereunder.
(i) The
Indenture Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Indenture Trustee’s economic
self-interest for (i) serving as investment adviser, administrator, shareholder
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments.
(j) In
order
to comply with its duties under the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001,
the
Indenture Trustee shall obtain and verify certain information and documentation
from the other parties hereto, including, but not limited to, such party’s name,
address, and other identifying information.
Section
6.03. Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity other than as
Indenture Trustee may, and in its capacity as Indenture Trustee may not, become
the owner or pledgee of Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Indenture Trustee.
Any Paying Agent, Note Registrar, co-registrar or co-paying agent may do the
same with like rights.
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, any other Operative Agreement or
the
Notes or the Issuer’s use of the proceeds from the Notes, or 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.
41
Section
6.05. Notice
of Default. If
a
Default occurs and is continuing and if a Responsible Officer of the Indenture
Trustee has Actual Knowledge, the Indenture Trustee shall mail to each
Noteholder, with a copy to the Seller, notice of the Default within 30 days
after it acquires knowledge of such Default.
Section
6.06. Reports
by Indenture Trustee to Holders. Upon
written request by a Noteholder, the Indenture Trustee shall deliver or cause
to
be delivered to each Noteholder such information as may be required to enable
such holder to prepare its federal and state income tax returns.
Section
6.07. Compensation
and Indemnity. As
compensation for its services hereunder and under the Operative Agreements
(including in its capacity as Paying Agent, Securities Intermediary, Note
Registrar, Certificate Registrar, Certificate Paying Agent, Administrator and
Custodian), the Indenture Trustee shall be entitled to receive on each Payment
Date a fee equal to the Indenture Trustee Fee payable from the Master Servicing
Fee. Reimbursement for all reasonable out-of-pocket expenses incurred or made
by
the Indenture Trustee, including costs of collection, shall be payable by the
Issuer. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances, if any, of the Indenture Trustee’s agents, counsel,
accountants and experts.
The
Issuer agrees to indemnify the Indenture Trustee (including in its capacity
as
Paying Agent, Securities Intermediary, Certificate Paying Agent, Administrator
and Custodian) and its officers, directors, employees and agents against any
and
all loss, liability or expense (including attorneys’ fees and expenses) incurred
by the Indenture Trustee in connection with the administration of this trust
and
the performance of its duties under the Operative Agreements. The Indenture
Trustee shall notify the Issuer and the Master Servicer promptly of any claim
for which it may seek indemnity. Failure by the Indenture Trustee to so notify
the Issuer or the Master Servicer shall not relieve the Issuer of its
obligations hereunder. The obligation of the Issuer to pay and reimburse the
Indenture Trustee pursuant to this Section 6.07 shall survive the termination
of
this Agreement or the earlier resignation or removal of the Indenture Trustee;
provided,
however,
that
payment of any amounts by the Issuer pursuant to this Section and pursuant
to
any other indemnification obligation of the Issuer to the Indenture Trustee
(in
any of its capacities) or the Owner Trustee shall not exceed $100,000 during
any
calendar year.
The
payment and indemnification obligations of the
Issuer
to the
Indenture Trustee (including in its capacities as Paying Agent, Certificate
Paying Agent, Administrator, Custodian, Note Registrar, Certificate Registrar
and Securities Intermediary) pursuant to this Section shall survive the
resignation or removal of the Indenture Trustee or discharge of this Indenture.
When the Indenture Trustee incurs expenses in connection with the occurrence
of
a Default specified in Section 5.01(v) or (vi) with respect to the Issuer,
the
expenses are intended to constitute expenses of administration under Title
11 of
the United States Code or any other applicable federal or State bankruptcy,
insolvency or similar law.
42
Section
6.08. Replacement
of Indenture Trustee. No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section. The
Indenture Trustee may resign at any time by so notifying the Issuer. The Holders
of a majority in Outstanding Amount of the Notes may remove the Indenture
Trustee by so notifying the Indenture Trustee and may appoint a successor
Indenture Trustee. The Issuer shall remove the Indenture Trustee
if:
(a) the
Indenture Trustee fails to comply with Section 6.11;
(b) the
Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a
receiver or other public officer takes charge of the Indenture Trustee or its
property; or
(d) 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 “resigning or removed Indenture Trustee”), the Issuer
shall promptly appoint a successor Indenture Trustee that satisfies the
eligibility requirements of Section 6.11.
The
resigning or removed Indenture Trustee agrees to cooperate with any successor
Indenture Trustee in effecting the termination of the resigning or removed
Indenture Trustee’s responsibilities and rights hereunder and shall promptly
provide such successor Indenture Trustee all documents and records reasonably
requested by it to enable it to assume the Indenture Trustee’s functions
hereunder. Any successor Indenture Trustee shall have all the rights, powers
and
duties of the Indenture Trustee under this Indenture.
The
resigning or removed Indenture Trustee shall Xxxxx to the successor Indenture
Trustee the Collateral, and the Seller, the Issuer and the resigning or removed
Indenture Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor Indenture Trustee all rights, powers, duties and
obligations under this Indenture.
The
successor Indenture Trustee shall deliver a written acceptance of its
appointment to the resigning or removed Indenture Trustee and the Issuer. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The resigning 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 resigning or removed
Indenture Trustee, the Issuer or the Holders of the Majority Controlling Class
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
obligations under Section 6.07 shall continue for the benefit of the retiring
Indenture Trustee.
43
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.
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 Collateral
may at the time be located, the Indenture Trustee at the expense of the Issuer
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 Estate, and to vest in such
Person or Persons, in such capacity and for the benefit of the Noteholders,
such
title to the Collateral, or any part thereof, 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 this
Section 6.10 hereof.
(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Collateral or
any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Indenture Trustee;
(ii) no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
44
(iii) the
Indenture Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any
notice, request or other writing given to the Indenture Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance
of
the trusts conferred, shall be vested with the estates or property specified
in
its instrument of appointment, jointly with the Indenture Trustee, subject
to
all the provisions of this Indenture, specifically including every provision
of
this Indenture relating to the conduct of, affecting the liability of, or
affording protection to, the Indenture Trustee. Every such instrument shall
be
filed with the Indenture Trustee.
(d) Any
separate trustee or co-trustee may at any time constitute the Indenture Trustee
its agent or attorney-in-fact with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Indenture
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment
of a
new or successor trustee.
Section
6.11. Eligibility. The
Indenture Trustee shall at all times (i) satisfy the requirements of TIA Section
310(a), (ii) have a combined capital and surplus of at least $50,000,000 as
set
forth in its most recently published annual report of condition, (iii) have
a
long-term debt rating equivalent to “A” or better by the Rating Agencies or be
otherwise acceptable to the Rating Agencies and (iv) not be an Affiliate of
the
Issuer or the Owner Trustee. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of
TIA
Section 310(b)(9); provided,
however,
that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section
6.12. Representations
and Warranties. The
Indenture Trustee hereby represents that:
(a) the
Indenture Trustee is duly organized and validly existing as a banking
corporation under the laws of the State of New York 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; and
(b) the
Indenture Trustee has the power and authority to execute and deliver this
Indenture and to carry out its terms; and the execution, delivery and
performance of this Indenture have been duly authorized by the Indenture Trustee
by all necessary corporate action;
Section
6.13. Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee which has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
45
Section
6.14. Reporting Requirements of the Commission
(a) On
or
before March 15 of each calendar year (or March 24 if there is no requirement
to
file a Form 10-K in that calendar year), the Indenture Trustee shall deliver
to
the Owner Trustee, the Administrator and the Depositor a report regarding its
assessment of compliance with the criteria specified in paragraph (d) of Item
1122 of Regulation AB (§ 229.1122(d)), as of and for the period ending the end
of each fiscal year, with respect to asset-backed security transactions taken
as
a whole involving the Depositor, the Servicer, the Master Servicer and the
Issuer, as applicable, and that are backed by the same asset type as the
Mortgage Loans. Each such report shall include all of the statements required
to
be provided by the Indenture Trustee under paragraph (a) of Item 1122 of
Regulation AB (§ 229.1122(a)) as set forth in Exhibit C hereto.
(b) On
or
before March 15 of each calendar year (or March 24 if there is no requirement
to
file a Form 10-K in that calendar year), the Indenture Trustee shall deliver
to
the Owner Trustee, the Administrator and the Depositor a report by a registered
public accounting firm that attests to, and reports on, the assessment made
by
the Indenture Trustee pursuant to subsection (a) above. Each such report shall
be made in accordance with standards for attestation engagements issued or
adopted by the Public Company Accounting Oversight Board.
(c) The
Indenture Trustee shall promptly notify the Owner Trustee, the Administrator
and
the Depositor of any legal proceedings pending against the Indenture Trustee
of
the type described in Item 1117 (§ 229.1117) of Regulation AB.
(d) In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Indenture Trustee is required to obtain, verify and record certain information
relating to individuals and entities which maintain a business relationship
with
the Indenture Trustee. Accordingly, each of the parties agrees to provide to
Indenture Trustee upon its request from time to time such identifying
information and documentation as may be available for such party in order to
enable the Indenture Trustee to comply with Applicable Law.
46
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 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; 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 Section 312(b) with other Noteholders with
respect to their rights under this Indenture or under the Notes.
(c) The
Issuer and the Indenture Trustee shall have the protection of TIA Section
3l2(c).
Section
7.03. Reports
by Issuer.
(a) The
Issuer shall:
(i) file
with
the Indenture Trustee and the Commission in accordance with the rules and
regulations prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance by the Issuer
with
the conditions and covenants of this Indenture as may be required from time
to
time by such rules and regulations; and
(ii) supply
to
the Indenture Trustee (and the Indenture Trustee shall transmit by mail to
all
Noteholders described in TIA Section 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to clause
(i)
of this Section 7.03(a) and by rules and regulations prescribed from time to
time by the Commission.
(b) Unless
the Issuer otherwise determines, the fiscal year of the Issuer shall end on
December 31 of each year.
Section
7.04. Reports
by Indenture Trustee. If
required by TIA Section 313(a), within 60 days after each March 1, beginning
in
2007, the Indenture Trustee shall mail to each Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA Section
313(b).
47
A
copy of
each report at the time of its mailing to Noteholders shall be filed by the
Indenture Trustee with the Commission and each securities exchange, if any,
on
which the Notes are listed. The Issuer shall notify the Indenture Trustee if
and
when the Notes are listed on any securities exchange.
ARTICLE
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 Collateral, the Indenture
Trustee may take such action as may be appropriate to enforce such payment
or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
Section
8.02. Establishment
of Payment Account; Payments on the Notes.
(a) On
or
prior to the Closing Date, the Indenture Trustee shall establish and maintain
the Payment Account as provided in Article 3 of the Sale and Servicing
Agreement.
(b) On
each
Payment Date, the Paying Agent (or, if the Indenture Trustee acts as Paying
Agent, the Indenture Trustee) shall distribute all amounts on deposit in the
Payment Account in accordance with the report of the Calculation Agent, as
provided in Section 4.1 of the Sale and Servicing Agreement.
(c) On
each
Payment Date and each Redemption Date, the Indenture Trustee hereby authorizes
the Owner Trustee or the Certificate Paying Agent, as applicable, to make the
distributions from the Certificate Account as required pursuant to Section
3.22
of the Sale and Servicing Agreement.
Section
8.03. Release
of Collateral.
(a) Subject
to the payment of its fees and expenses pursuant to Section 6.07, the Indenture
Trustee may, and when required by the provisions of this Indenture or the Sale
and Servicing Agreement shall, execute instruments to release property from
the
lien of this Indenture, or convey the Indenture Trustee’s interest in the same,
in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture or the Sale and Servicing Agreement. No party
relying upon an instrument executed by the Indenture Trustee as provided in
this
Article VIII 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.
48
(b) Except
as
otherwise provided in subsections (c) and (d) of this Section and the terms
of
the Operative Agreements to which it is a party, the Indenture Trustee shall
release property from the lien of this Indenture only upon receipt by it of
an
Issuer Request accompanied by (i) an Officer’s Certificate, (ii) an Opinion of
Counsel, (iii) certificates in accordance with TIA Sections 314(c) and (d)(1),
and (iv)(A) Independent Certificates in accordance with TIA Sections 314(c)
and
314(d)(1) and meeting the applicable requirements of Section 11.01 hereof or
(B)
an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates; provided that
no such Independent Certificates or Opinion of Counsel in lieu of such
Independent Certificates shall be necessary in respect of property released
from
the lien of the Indenture in accordance with the provisions hereof if such
property consists solely of cash distributed in accordance with the terms hereof
and the Sale and Servicing Agreement.
(c) The
Master Servicer or any Servicer, on behalf of the Issuer, shall be entitled
to
obtain a release from the lien of this Indenture for any Mortgage Loan and
the
Mortgaged Property at any time (i) after a payment by the Seller or the Issuer
of the Purchase Price of the Mortgage Loan, (ii) after a Substitute Mortgage
Loan is substituted for such Mortgage Loan in accordance with the Sale and
Servicing Agreement, (iii) after liquidation of the Mortgage Loan in accordance
with the Sale and Servicing Agreement and the deposit of all Liquidation
Proceeds and Insurance Proceeds in the Collection Account, (iv) upon the
termination of a Mortgage Loan (due to, among other causes, a prepayment in
full
of the Mortgage Loan and sale or other disposition of the related Mortgaged
Property), or (v) as contemplated by Article 3 of the Sale and Servicing
Agreement.
(d) The
Indenture Trustee shall, if requested by the Master Servicer or any Servicer
in
writing, temporarily release (or cause its custodian to temporarily release)
to
such party the Mortgage File pursuant to the provisions of Section 3.12 of
the
Sale and Servicing Agreement.
(e) The
Indenture Trustee shall, at such time as there are no Notes Outstanding and
all
sums due to the Noteholders pursuant to the Sale and Servicing Agreement and
all
fees and expenses of the Indenture Trustee, the Master Servicer, the
Administrator, the Securities Intermediary and the Custodian pursuant to this
Indenture have been paid, release any remaining portion of the Collateral that
secured the Notes from the lien of this Indenture and release to the holder
of
the Certificates or any other Person entitled thereto any funds then on deposit
in the Trust Accounts.
ARTICLE
IX.
SUPPLEMENTAL
INDENTURES
Section
9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without
the consent of the Holders of any Notes but with prior written notice to the
Rating Agencies and with the prior written consent of the Issuer (which requires
the consent of the holder of the Trust Certificate), the Indenture Trustee,
when
authorized by an Issuer Order, at any time and from time to time, may enter
into
one or more indentures supplemental hereto, 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;
49
(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
(A)
cure any ambiguity, (B) correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provisions herein
or in any supplemental indenture or to conform the provisions hereof to those
of
any Offering Document, (C) obtain a rating for a Class of Notes from a
nationally recognized statistical rating organization, or (D) make any other
provisions with respect to matters or questions arising under this Indenture;
provided,
however,
that no
such supplemental indenture entered into pursuant to clause (D) of this
subparagraph (iv) shall adversely affect in any material respect the interests
of any Holder not consenting thereto as evidenced by an Opinion of Counsel
(or,
in lieu thereof, written confirmation from each Rating Agency that such
supplemental indenture will not cause it to reduce or withdraw its then-current
ratings on any Class of Notes) furnished to the Indenture Trustee at the
Issuer’s expense;
(v) to
evidence and provide for the acceptance of the appointment hereunder of 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
(vi) 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 (as
evidenced by an Opinion of Counsel furnished to the Indenture Trustee at the
Issuer’s expense).
provided,
however,
that no
such supplemental indenture shall be entered into unless the Indenture Trustee
shall have received an Opinion of Counsel stating that entering into such
supplemental indenture will not cause the Issuer to be subject to federal income
tax as long as an entity that qualifies as a REIT under the Code holds directly,
or indirectly through one or more Qualified REIT Subsidiaries, a 100% Percentage
Interest in the Class X Certificate and the Trust Certificate, and the Indenture
Trustee receives an officer’s certificate from the Holder of the Class X
Certificate and the Trust Certificate to the effect that such Holder either
qualifies as a REIT or a Qualified REIT Subsidiary under the Code and owns
a
100% Percentage Interest in the Class X Certificate and the Trust
Certificate.
50
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 Order, may also,
without the consent of any Noteholder but with prior written notice to the
Rating Agencies, enter into an indenture or indentures supplemental hereto
for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided,
however,
that
such action shall not, as evidenced by either (i) an Opinion of Counsel or
(ii)
satisfaction of the Rating Agency Condition, adversely affect in any material
respect the interests of any Noteholder.
Section
9.02. Supplemental
Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may,
with the prior consent of the Rating Agencies, the written consent of the holder
of the Trust Certificate and with the consent of Holders of not less than 50%
of
the Outstanding Amount of Notes, 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
Outstanding Note affected thereby:
(a) change
the date of payment of any installment of principal of or interest on any Note,
or reduce the principal amount thereof, 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 Collateral 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 (or, in the case of redemption, on or after the Redemption
Date);
(b) reduce
the percentage of the Outstanding Amount 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;
(c) modify
or
alter the provisions of the proviso to the definition of the term “Outstanding”;
(d) reduce
the percentage of the Outstanding Amount of the Notes required to direct the
Indenture Trustee to direct the Issuer to sell or liquidate the Collateral
pursuant to Section 5.04;
(e) modify
any provision of this Section except to increase any percentage specified herein
or to provide that certain additional provisions of this Indenture or the
Operative Agreements cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
51
(f) 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 or to affect the rights of the Holders of Notes to
the
benefit of any provision for the mandatory redemption of the Notes contained
herein; or
(g) permit
the creation of any lien ranking prior to or on a parity with the lien of this
Indenture with respect to any part of the Collateral or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note of the
security provided by the lien of this Indenture.
The
Indenture Trustee may conclusively rely on an Opinion of Counsel (at the expense
of the party requesting the supplemental indenture) regarding 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.
In
connection with requesting the consent of the Noteholders and the holder of
the
Trust Certificate pursuant to this Section, the Issuer shall mail to the Holders
of the Notes to which such amendment or supplemental indenture relates and
to
the Owner Trustee (which shall in turn mail to the holder of the Trust
Certificate) a notice setting forth in general terms the substance of such
supplemental indenture. It shall not be necessary for any Act of Noteholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
(h)
Notwithstanding anything to the contrary in Section 9.01 or this Section 9.02,
the Issuer may not, without the consent of the Counterparty, modify this
Agreement if such amendment, supplement or modification would materially
adversely affect the Counterparty, as solely determined by the Counterparty,
in
its reasonable discretion (provided that without limiting the foregoing, any
reduction in the priority of payments to the Counterparty, any change in the
timing of payments to the Counterparty or any reduction in quantity or quality
of collateral available with respect to payments owing to the Counterparty
shall
automatically be considered for the purposes of this clause to be materially
adverse to the Counterparty).
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.
52
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 shall so determine,
new Notes so modified as to conform, in the opinion of 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.
Section
9.07. Amendments
to Trust Agreement. The
Indenture Trustee shall, upon Issuer Order, consent to any proposed amendment
to
the Trust Agreement or an amendment to or waiver of any provision of any other
document relating to the Trust Agreement, such consent to be given without
the
necessity of obtaining the consent of the Holders of any Notes upon satisfaction
of the requirements under Section 10.01 of the Trust Agreement.
Nothing
in this Section shall be construed to require that any Person obtain the consent
of the Indenture Trustee to any amendment or waiver or any provision of any
document where the making of such amendment or the giving of such waiver without
obtaining the consent of the Indenture Trustee is not prohibited by this
Indenture or by the terms of the document that is the subject of the proposed
amendment or waiver.
ARTICLE
X.
DISPOSITION
OF THE COLLATERAL; REDEMPTION OF THE NOTES
Section
10.01. Redemption
of the Notes.
(a) The
Notes
may be redeemed following the sale of the Trust Estate pursuant to an auction
or
to the Holder of the Trust Certificate in the manner specified in and subject
to
the provisions of Section 7.2 of the Sale and Servicing Agreement.
(b) The
Indenture Trustee shall furnish the Rating Agencies notice of any such
redemption in accordance with Section 10.02 hereof.
(c) No
redemption of any Note shall be permitted without retiring the then-outstanding
Notes.
Section
10.02. Form
of Redemption Notice. Notice
of
redemption under Section 10.01 hereof shall be given by the Indenture Trustee
by
first-class mail, postage prepaid, or by facsimile mailed or transmitted not
later than 10 days prior to the applicable Redemption Date to each then Holder
of each Class of Notes to be redeemed at such Holder’s address or facsimile
number appearing in the Note Register.
53
All
notices of redemption shall state:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) that
on a
Redemption Date, (i) interest thereon shall cease to accrue on the date
specified on the notice and (ii) that the payment of all other amounts described
in Section 7.2 of the Sale and Servicing Agreement will be made;
and
(d) the
place
where such Notes are to be surrendered for payment of the Redemption Price
(which shall be the office or agency of the Issuer to be maintained as provided
in Section 3.02 hereof).
Notice
of
redemption of the Notes shall be given by the Indenture Trustee in the name
of
the Issuer and at the expense of the Holder of the Trust Certificate or its
assignee. Failure to give to any Holder of any Note notice of redemption, or
any
defect therein, shall not impair or affect the validity of the redemption of
any
other Note.
Section
10.03. Notes
Payable on Redemption Date or Note Payment Date. Each
Class of Notes to be redeemed shall, following notice of such redemption as
required by Section 10.02 hereof on the applicable Redemption Date become due
and payable at the Redemption Price and (unless the purchaser of the Trust
Estate shall default in the payment of the Redemption Price) no interest shall
accrue thereon for any period after the date to which accrued interest is
calculated for purposes of calculating the Redemption Price. The Issuer may
not
redeem any Class of Notes unless (i) all outstanding obligations under such
Class of Notes have been paid in full and (ii) the Indenture Trustee has been
paid all amounts to which it is entitled hereunder.
ARTICLE
XI.
MISCELLANEOUS
Section
11.01. 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 (a) 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, (b) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, and
(c)
(if required by Section 3.14(c) of the TIA) an Independent Certificate from
a
firm of certified public accountants meeting the applicable requirements of
this
Section, except that, in the case of any such application or request as to
which
the furnishing of such documents is specifically required by any provision
of
this Indenture, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a
statement that each signatory of such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
54
(ii) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(iii) a
statement that, in the opinion of each such signatory, such signatory has made
such examination or investigation as is necessary to enable such signatory
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with; and
(iv) a
statement as to whether or not, in the opinion of each such signatory, such
condition or covenant has been complied with.
(b) 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 11.01(a) hereof 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.
(c) 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 subsection (b) 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 subsection (b) above and this subsection
(c),
is 10% or more of the Outstanding Amount 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 $25,000 or less than one percent of the Outstanding Amount of the
Notes.
(d) 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.
(e) 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 subsection (d) above, the Issuer shall also furnish to
the
Indenture Trustee an Independent Certificate as to the same matters if the
fair
value of the property or securities and of all other property or securities
released from the lien of this Indenture since the commencement of the
then-current calendar year, as set forth in the certificates required by
subsection (d) above and this subsection (e), equals 10% or more of the Note
Principal Balance of the Notes, but such certificate need not be furnished
in
the case of any release of property or securities if the fair value thereof
as
set forth in the related Officer’s Certificate is less than $25,000 or less than
one percent of the then Note Principal Balance of the Notes.
55
(f) The
provisions set forth in Sections 11.01(b), (c), (d) and (e) hereof shall not
apply to any repurchases, optional purchases, substitutions, redemptions or
optional terminations carried out in accordance with the provisions of Article
X
of this Indenture or Article 7 of the Sale and Servicing Agreement.
Section
11.02. Form
of Documents Delivered to Indenture Trustee. In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an Authorized Officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer’s certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer or Opinion
of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the
Seller, the Depositor or the Issuer stating that the information with respect
to
such factual matters is in the possession of the Seller, the Depositor or the
Issuer unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Whenever
in this Indenture, in connection with any application or certificate or report
to the Indenture Trustee, it is provided that the Issuer shall deliver any
document as a condition of the granting of such application, or
as
evidence of the Issuer’s compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or
at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to
the
sufficiency of such certificate or report. The foregoing shall not, however,
be
construed to affect the Indenture Trustee’s right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
56
Section
11.03. Acts
of Noteholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor
of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The
fact
and date of the execution by any person of any such instrument or writing may
be
proved in any manner that the Indenture Trustee deems sufficient.
(c) The
ownership of Notes shall be proved by the Note Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section
11.04. Notices,
etc. to Indenture Trustee, the Issuer and Rating Agencies. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Noteholders or other documents provided or permitted by this Indenture shall
be
in writing and if such request, demand, authorization, direction, notice,
consent, waiver or act of Noteholders is to be made upon, given or furnished
to
or filed with:
(a) 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 its Corporate Trust Office, or
(b) 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: Saxon Asset Securities Trust 2006-3, in care of
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administrator (SAST
2006-3), 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.
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 by overnight courier or facsimile,
if
to Moody’s: Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Residential Mortgage Surveillance, and if to S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Surveillance.
57
Section
11.05. Notices
to Noteholders; Waiver. Where
this Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if
in
writing and delivered by first-class mail, postage prepaid, overnight courier
or
facsimile to each Noteholder affected by such event, at his address as it
appears on the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Noteholders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Noteholder
shall
affect the sufficiency of such notice with respect to other Noteholders, and
any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent
of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity
of
any action taken in reliance upon such a waiver.
In
case,
by reason of the suspension of regular mail service as a result of a strike,
work stoppage or similar activity, it shall be impractical
to
mail notice of any event to Noteholders when such notice is required to be
given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a
sufficient giving of such notice.
Section
11.06. Conflict
with Trust Indenture Act. If
any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions
of
the Trust Indenture Act, such required provision shall control.
The
provisions of TIA Sections 310 through 317 that impose duties on any person
(including the provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether
or
not physically contained herein.
Section
11.07. Effect
of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
11.08. Successors
and Assigns. All
covenants and agreements in this Indenture and the Notes by the Issuer shall
bind its successors and assigns, whether so expressed or not. All agreements
of
the Indenture Trustee in this Indenture shall bind its successors, co-trustees
and agents.
Section
11.09. Severability. In
case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
11.10. Benefits
of Indenture and Consent of Noteholders. Nothing
in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Noteholders, and any other party secured hereunder, and any other Person with
an
ownership interest in any part of the Collateral, any benefit or any legal
or
equitable right, remedy or claim under this Indenture. Each Noteholder and
Note
Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, consents to and agrees to be bound by the terms and
conditions of this Indenture.
58
Section
11.11. Legal
Holidays. In
any
case where the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
Section
11.12. Governing
Law. THIS
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.13. Counterparts. This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
11.14. Recording
of Indenture. If
this
Indenture is subject to recording in any appropriate public recording offices,
such recording is to be effected by the Issuer and at its expense accompanied
by
an Opinion of Counsel at its expense (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the Indenture Trustee)
to
the effect that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of
any
right or remedy granted to the Indenture Trustee under this
Indenture.
Section
11.15. Issuer
Obligations. 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, shareholder, member, beneficiary, agent, officer,
director or employee 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). 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 V, VI
and
VII of the Trust Agreement.
59
Section
11.16. No
Petition. The
Indenture Trustee, by entering into this Indenture, and each Noteholder, by
its
acceptance of a Note (and the third party beneficiary hereto, by its acceptance
of its rights under Section 11.21), hereby covenant and agree that they will
not
at any time institute against the Seller, the Depositor or the Issuer or join
in
any institution against the Seller, the Depositor or the Issuer, 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 other Operative Agreements, provided,
however,
that
nothing herein shall be deemed to prohibit the Indenture Trustee from filing
proofs of claim for itself and on behalf of the Noteholders.
Section
11.17. Inspection. The
Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee during the Issuer’s normal business
hours, to examine all the books of account, records, reports and other papers
of
the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by Independent 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
11.18. Execution
by the Issuer. It
is
expressly understood and agreed by the parties and the third party beneficiary
hereto that (a) this Indenture is executed and delivered by Wilmington Trust
Company, not individually or personally but solely as Owner Trustee of the
Issuer, in the exercise of the powers and authority conferred and vested in
its
as trustee, (b) each of the representations, undertaking and agreements herein
made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but
is
made and intended for the purpose of binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on Wilmington Trust
Company, individually or personally, to perform any covenant either expressed
or
implied contained herein, all such liability, if any, being expressly waived
by
the parties and by any person claiming by, through or under the parties hereto
and (d) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representations, warranty
or
covenant made or undertaken by the Issuer under this Indenture or any other
document.
Section
11.19. Indenture Trustee May File Proofs of Claim. The
Indenture Trustee is authorized to file such proofs of claim and other papers
or
documents as may be necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, subject to the limitations contained herein) and the Holders allowed
in
any judicial Proceedings relative to the Issuer or any guarantor (or any other
obligor upon the Notes), its creditors or its property and shall be entitled
and
empowered to participate as a member, voting or otherwise, of any official
committee of creditors appointed in such matter and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any custodian in any such judicial
Proceeding is hereby authorized by each Holder to make such payments to the
Indenture Trustee, and in the event that the Indenture Trustee shall consent
to
the making of such payments directly to the Holders, to pay to the Indenture
Trustee any amount due to it for the reasonable compensation, expenses and
disbursements of the Indenture Trustee, its agents and counsel, and any other
amounts due the Indenture Trustee under Section 6.07 hereof subject to the
limitations contained herein. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Indenture Trustee,
its
agents and counsel, and any other amounts due the Indenture Trustee under
Section 6.07 hereof subject to the limitation contained herein out of the estate
in any such Proceeding, shall be denied for any reason, payment of the same
shall be paid out of any and all distributions, dividends, money, securities
and
other property that the Holders may be entitled to receive in such Proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the
Notes or the rights of any Holder, or to authorize the Indenture Trustee to
vote
in respect of the claim of any Holder in any such Proceeding.
60
Section
11.20. Confidentiality. Notwithstanding
anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes publicly
known, or information obtained by the Indenture Trustee from sources other
than
the Issuer, the Seller, the Depositor or Owner Trustee, (ii) disclosure of
any
and all information (A) if required to do so by any applicable statute, law,
rule or regulation, (B) to any government agency or regulatory body having
or
claiming authority to regulate or oversee any respects of the Indenture
Trustee’s business or that of its affiliates, (C) pursuant to any subpoena,
civil investigative demand or similar demand or request of any court, regulatory
authority, arbitrator or arbitration to which the Indenture Trustee or an
affiliate or an officer, director, employer or shareholder thereof is a party,
(D) in any document pertaining to the transactions contemplated by this
Agreement approved in advance by the Issuer, the Seller, the Depositor or Owner
Trustee or (E) to any affiliate, independent or internal auditor, agent,
employee or attorney of the Indenture Trustee having a need to know the same,
provided
that the
Indenture Trustee advises such recipient of the confidential nature of the
information being disclosed, or (iii) any other disclosure authorized by the
Issuer, the Seller, the Depositor or Owner Trustee.
Section
11.21. Third Party Beneficiary. The
parties hereto agree that the Counterparty is intended to be, and shall have
all
rights of, a third-party beneficiary to this Indenture with respect to the
provisions of Sections 5.04 and 9.02(h) relating to it.
61
IN
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture
to be duly executed
by their
respective officers, thereunto duly authorized and duly attested, all as of
the
day and year first above written.
|
SAXON
ASSET SECURITIES TRUST 2006-3,
as
Issuer
|
||
| |
|
|
| By: | WILMINGTON
TRUST
COMPANY,
not
in its individual capacity but solely as
Owner
Trustee
|
|
| By: |
/s/
Xxxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxx
Title:
Vice President
|
||
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Indenture Trustee
|
||
| |
|
|
| By: |
/s/
Xxxxxxx Xxxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Authorized Signatory
|
||
| By: |
/s/
Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
Title:
Vice President
|
||
|
STATE
OF DELAWARE
|
)
|
|
)
|
|
|
COUNTY
OF NEWCASTLE
|
)
|
BEFORE
ME, the undersigned authority, a Notary Public in and for said county and state,
on this day personally appeared ________________________, known to me to be
the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said WILMINGTON TRUST
COMPANY, not in its individual capacity, but solely as Owner Trustee on behalf
of SAXON ASSET SECURITIES TRUST 2006-3, a Delaware statutory trust, and that
such person executed the same as the act of said statutory trust for the purpose
and consideration therein expressed, and in the capacities therein stated.
GIVEN
UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_____________ 2006.
|
Notary Public in and for the State of Delaware |
|||
| My commission expires: | |||
|
|
|
STATE
OF CALIFORNIA
|
)
|
|
)
|
|
|
COUNTY
OF _____________________
|
)
|
BEFORE
ME, the undersigned authority, a Notary Public in and for said county and state,
on this day personally appeared _______________,
known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of DEUTSCHE BANK
TRUST COMPANY AMERICAS, a New York banking corporation, and that such person
executed the same as the act of said corporation for the purpose and
consideration therein stated.
GIVEN
UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_____________ 2006.
|
Notary
Public in and for the State of California
|
|||
| My commission expires: | |||
|
|
|
STATE
OF CALIFORNIA
|
)
|
|
)
|
|
|
COUNTY
OF _____________________
|
)
|
BEFORE
ME, the undersigned authority, a Notary Public in and for said county and state,
on this day personally appeared _____________,
known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of DEUTSCHE BANK
TRUST COMPANY AMERICAS, a New York banking corporation, and that such person
executed the same as the act of said corporation for the purpose and
consideration therein stated.
GIVEN
UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_____________ 2006.
|
Notary
Public in and for the State of California
|
|||
| My commission expires: | |||
|
|
EXHIBIT
A
FORM
OF
NOTES
EXHIBIT
B
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
Date
|
|
STATE
OF _____________
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ___________
|
)
|
|
Re:
|
Saxon
Asset Securities Trust 2006-3
|
|
Mortgage
Loan Asset Backed Notes, Series
2006-3
|
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation]
duly organized and existing under the laws of __________, on behalf of which
s/he makes this affidavit.
2. The
Investor (i) is not, and on [date of transfer] will not be, acquiring a Note
for, or with the assets of, an employee benefit plan or other retirement
arrangement that is subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or to Section 4975 of the Internal
Revenue Code of 1986, as amended (or to any substantially similar law (“Similar
Law”)), or any entity deemed to hold the plan assets of the foregoing (a
“Benefit Plan”) or (ii) on [date of transfer], the acquisition and holding of
such Note for, or with the assets of, a Benefit Plan will not result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code which is not covered under Prohibited Transaction Class Exemption
(“PTCE”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or some other
applicable exemption, and will not result in a non-exempt violation of any
Similar Law.
3. The
Investor hereby acknowledges that under the terms of the Indenture dated as
of
September 1, 2006, between Saxon Asset Securities Trust 2006-3, as Issuer and
Deutsche Bank Trust Company Americas, as Indenture Trustee, no transfer of
any
Note shall be permitted to be made to any person unless the Indenture Trustee
has received a certificate from such transferee in the form hereof.
B-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________ 20__.
| [NAME OF INVESTOR] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
| ATTEST: | ||
|
|
||
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ___________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be the
_________________ of the Investor, and acknowledged that s/he executed the
same
as her/his free act and deed and the free act and deed of the
Investor.
Subscribed
and sworn before me this _____ day of ___________ 20___.
|
NOTARY PUBLIC |
|||
| My commission expires the | |||
|
___
day of __________ 20__.
|
B-2
EXHIBIT
C
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Indenture Trustee shall address,
at a minimum, the criteria identified below:
|
Reference
|
Servicing
Criteria
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing
activities.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g. with respect to commingling of cash) as set forth
in the
transaction documents.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained by a federally insured depository
institution as set forth in the transaction documents.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction documents;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of day specified in the transaction
agreements.
|
C-1
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations and (D) agree
with
investors' or the indenture trustee's records as to the total unpaid
principal balance and number of mortgage loans.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
the
timeframes, distribution priority and other terms set forth in
the
transaction agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
servicer's
investor records, or such other number of days specified in the
transaction documents.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other forms of payment, or custodial bank
statements.
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
C-2
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
C-3
