EXECUTION COPY
INDENTURE
among
PHH MORTGAGE TRUST, SERIES 2008-CIM2,
Issuer,
HSBC BANK USA, NATIONAL ASSOCIATION,
Indenture Trustee
and
WELLS FARGO BANK, N.A.,
Securities Administrator
Dated as of July 25, 2008
PHH MORTGAGE TRUST, SERIES 2008-CIM2
MORTGAGE-BACKED NOTES, SERIES 2008-CIM2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY
REFERENCE..............................................2
Section 1.01.
Definitions..................................................................2
Section 1.02.
Incorporation by Reference of Trust Indenture
Act............................9
Section 1.03.
Rules of
Construction........................................................9
ARTICLE II
THE
NOTES..............................................................................10
Section 2.01.
Form........................................................................10
Section 2.02.
Execution, Authentication and
Delivery......................................11
Section 2.03.
Limitations on Transfer of the
Notes........................................14
Section 2.04.
Registration; Registration of Transfer and
Exchange.........................16
Section 2.05.
Mutilated, Destroyed, Lost or Stolen
Notes..................................17
Section 2.06.
Persons Deemed
Owners.......................................................18
Section 2.07.
Payment of Principal and
Interest...........................................18
Section 2.08.
Cancellation................................................................19
Section 2.09.
Release of
Collateral.......................................................19
Section 2.10.
Book-Entry
Notes............................................................20
Section 2.11.
Notices to Clearing
Agency..................................................21
Section 2.12.
Definitive
Notes............................................................21
Section 2.13.
Tax
Treatment...............................................................21
Section 2.14.
Restrictions on Transfer and Retention of Beneficial Ownership
Interest in
the Privately Offered
Notes.................................................22
ARTICLE III
COVENANTS..............................................................................23
Section 3.01.
Payment of Principal and
Interest...........................................23
Section 3.02.
Maintenance of Office or
Agency.............................................23
Section 3.03.
Money for Payments to be Held in
Trust......................................23
Section 3.04.
Existence...................................................................25
Section 3.05.
Protection of
Collateral....................................................26
Section 3.06.
Opinions as to
Collateral...................................................26
Section 3.07.
Performance of
Obligations..................................................27
Section 3.08.
Negative
Covenants..........................................................28
Section 3.09.
Annual Statement as to
Compliance...........................................29
Section 3.10.
Treatment of Notes as Debt for Tax
Purposes.................................29
Section 3.11.
No Other
Business...........................................................29
Section 3.12.
No
Borrowing................................................................29
Section 3.13.
Guarantees, Loans, Advances and Other
Liabilities...........................29
Section 3.14.
Capital
Expenditures........................................................30
Section 3.15.
Removal of Securities
Administrator.........................................30
Section 3.16.
Restricted
Payments.........................................................30
Section 3.17.
Notice of Events of
Default.................................................30
Section 3.18.
Further Instruments and
Acts................................................30
Section 3.19.
Covenants of the
Issuer.....................................................30
Section 3.20.
Representations and Warranties of the
Issuer................................30
ARTICLE IV
SATISFACTION AND
DISCHARGE.............................................................31
Section 4.01.
Satisfaction and Discharge of
Indenture.....................................31
Section 4.02.
Application of Trust
Money..................................................33
Section 4.03.
Repayment of Moneys Held by Paying
Agent....................................33
Section 4.04.
Trust Money Received by Indenture
Trustee...................................33
i
ARTICLE V
EVENTS OF DEFAULT;
REMEDIES............................................................33
Section 5.01.
Events of
Default...........................................................33
Section 5.02.
Acceleration of Maturity; Rescission and
Annulment..........................35
Section 5.03.
Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee...35
Section 5.04.
Remedies;
Priorities........................................................37
Section 5.05.
Optional Preservation of the
Collateral.....................................39
Section 5.06.
Limitation of
Suits.........................................................39
Section 5.07.
Unconditional Rights of Noteholders To Receive Principal and
Interest.......40
Section 5.08.
Restoration of Rights and
Remedies..........................................40
Section 5.09.
Rights and Remedies
Cumulative..............................................40
Section 5.10.
Delay or Omission Not a
Waiver..............................................41
Section 5.11.
Control by
Noteholders......................................................41
Section 5.12.
Waiver of Past
Defaults.....................................................41
Section 5.13.
Undertaking for
Costs.......................................................42
Section 5.14.
Waiver of Stay or Extension
Laws............................................42
Section 5.15.
Action on
Notes.............................................................42
Section 5.16.
Performance and Enforcement of Certain
Obligations..........................42
ARTICLE VI
THE INDENTURE
TRUSTEE..................................................................43
Section 6.01.
Duties of Indenture
Trustee.................................................43
Section 6.02.
Rights of Indenture
Trustee.................................................45
Section 6.03.
Individual Rights of Indenture
Trustee......................................46
Section 6.04.
Indenture Trustee's
Disclaimer..............................................46
Section 6.05.
Notice of
Defaults..........................................................47
Section 6.06.
Reports by Securities Administrator to
Holders..............................47
Section 6.07.
Compensation and
Indemnity..................................................47
Section 6.08.
Replacement of Indenture
Trustee............................................48
Section 6.09.
Successor Indenture Trustee or the Securities Administrator by
Merger.......48
Section 6.10.
Appointment of Co-Indenture Trustee or Separate Indenture
Trustee...........49
Section 6.11.
Eligibility;
Disqualification...............................................50
Section 6.12.
Representations and
Warranties..............................................50
Section 6.13.
Preferential Collection of Claims Against
Issuer............................51
Section 6.14.
Reporting Requirements of the
Commission....................................51
ARTICLE VII
NOTEHOLDERS' LISTS AND
REPORTS.........................................................53
Section 7.01.
Issuer To Furnish Names and Addresses of
Noteholders........................53
Section 7.02.
Preservation of Information; Communications to
Noteholders..................53
Section 7.03.
Reports by
Issuer...........................................................54
Section 7.04.
Reports by Indenture
Trustee................................................54
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND
RELEASES...................................................55
Section 8.01.
Collection of
Money.........................................................55
Section 8.02.
Distribution Account and Certificate Distribution
Account...................55
Section 8.03.
General Provisions Regarding
Accounts.......................................55
ii
Section 8.04.
Release of
Collateral.......................................................55
ARTICLE IX
SUPPLEMENTAL
INDENTURES................................................................56
Section 9.01.
Supplemental Indentures Without Consent of
Noteholders......................56
Section 9.02.
Supplemental Indentures with Consent of
Noteholders.........................57
Section 9.03.
Execution of Supplemental
Indentures........................................58
Section 9.04.
Effect of Supplemental
Indenture............................................58
Section 9.05.
Conformity with Trust Indenture
Act.........................................59
Section 9.06.
Reference in Notes to Supplemental
Indentures...............................59
Section 9.07.
Amendments to Trust
Agreement...............................................59
Section 9.08.
Opinion of
Counsel..........................................................59
ARTICLE X
CALL OF THE
NOTES......................................................................59
Section 10.01.
Call of the
Notes...........................................................59
Section 10.02.
Form of Redemption or Call
Notice...........................................60
Section 10.03.
Notes Payable on Clean-Up Call
Date.........................................60
ARTICLE XI
MISCELLANEOUS..........................................................................61
Section 11.01.
Compliance Certificates and Opinions,
etc...................................61
Section 11.02.
Form of Documents Delivered to Indenture
Trustee............................61
Section 11.03.
Acts of
Noteholders.........................................................62
Section 11.04.
Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies.............63
Section 11.05.
Notices to Noteholders;
Waiver..............................................63
Section 11.06.
Conflict with Trust Indenture
Act...........................................64
Section 11.07.
Effect of Headings and Table of
Contents....................................64
Section 11.08.
Successors and
Assigns......................................................64
Section 11.09.
Severability................................................................64
Section 11.10.
Benefits of Indenture and Consents of
Noteholders...........................64
Section 11.11.
Legal
Holidays..............................................................64
Section 11.12.
Governing
Law...............................................................64
Section 11.13.
Counterparts................................................................65
Section 11.14.
Recording of
Indenture......................................................65
Section 11.15.
Trust
Obligations...........................................................65
Section 11.16.
No
Petition.................................................................65
Section 11.17.
Inspection..................................................................66
Section 11.18.
Agreements of
Noteholders...................................................66
EXHIBIT A-1
Forms of Class A Notes
EXHIBIT A-2
Forms of Privately Offered Notes
EXHIBIT B-1
Form of Rule 144A (QIB) Investment Letter
EXHIBIT B-2
Form of Rule 501(a) Investment Letter
EXHIBIT C
Form of ERISA Affidavit for Class A Notes
iii
This
INDENTURE,
dated as of July 25,
2008,
is by and among PHH MORTGAGE
TRUST,
SERIES 2008-CIM2,
a Delaware
statutory trust (the "Issuer"), HSBC BANK USA, NATIONAL
ASSOCIATION,
a national banking association,
as indenture trustee
and not in its individual capacity (the "Indenture
Trustee"),
and WELLS FARGO BANK, N.A., a national banking association,
as securities administrator and not in its individual capacity (the
"Securities Administrator").
Each party
agrees as follows
for the benefit of the other
parties and for the equal and ratable
benefit of the
Holders of the Issuer's Mortgage-Backed Notes, Series 2008-CIM2 in
the Classes specified herein:
GRANTING CLAUSE
The Issuer
hereby
Grants to the
Indenture
Trustee on the Closing
Date,
for the benefit of the Holders of the
Notes, all of the Issuer's right, title and interest,
whether now owned or hereafter acquired,
in and to: (i) the portion
of the Trust Estate (as defined in the Sale and
Servicing
Agreement)
related to the Mortgage
Loans;
(ii) the
Issuer's
rights and benefits but none of its
obligations
under the Sale and Servicing
Agreement
(including the Issuer's right to
cause the Originator to repurchase
Mortgage Loans from the Issuer under the circumstances
described therein) with respect
to the
Mortgage
Loans;
(iii) the Issuer's
rights and
benefits
but none of its
obligations
under the
Administration
Agreement with respect to the Mortgage Loans;
(iv) the
Issuer's rights and benefits but none of its obligations under the
Assignment
Agreement and the Purchase and Servicing
Agreement with respect to the Mortgage Loans
(including the Issuer's
right to cause the Originator to repurchase
Mortgage
Loans from the Issuer under the
circumstances
described
therein);
(v) the
Trust
Accounts and all amounts and property in the Trust
Accounts from time to time with respect to the Mortgage
Loans;
(vi) all other property of the Trust from time to time with respect
to the Mortgage
Loans;
and (vii) 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
Grants are made in trust to secure the
payment of
principal
of and
interest
on, and any other
amounts
owing in respect of, the related
Notes and to secure
(i) the
payment of all amounts due on the related Notes in
accordance
with their terms,
(ii) the
payment of all other sums payable under the Indenture
with respect to the related
Notes and (iii) compliance with the provisions of this Indenture,
all as provided in this Indenture.
The Indenture
Trustee,
as Indenture Trustee on behalf of the Holders of the Notes,
acknowledges such Grants and
accepts the trusts under this Indenture in accordance with its
terms.
1
Each Holder of a Note, by acceptance of such Note, and the
Indenture
Trustee agree and acknowledge that each item
of Collateral that is physically
delivered to the Indenture
Trustee or the Securities
Administrator
will be held by the
Indenture
Trustee (or its custodian) or the Securities
Administrator
in trust for the benefit of the
Noteholders
under
the terms of this Indenture.
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).
Administration
Agreement:
The Administration Agreement dated as of July 25, 2008 among the
Issuer, the Indenture
Trustee, the Securities Administrator, LaSalle National Trust
Delaware, as Owner Trustee, and the Depositor.
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,
any officer of the Owner
Trustee who is
authorized to act for
the Owner Trustee in matters relating to the Issuer and who is
identified on the list of Authorized
Officers
delivered by
the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or
supplemented
from time to
time thereafter) and, so long as the Administration
Agreement is in effect, any Vice President,
Assistant Vice President,
Trust
Officer
or more
senior
officer
of the
Securities
Administrator
who is
authorized
to act for the
Securities
Administrator
in matters
relating
to the Issuer and to be acted upon by the
Securities
Administrator
pursuant
to the
Administration
Agreement
and
who is
identified
on
the
list
of
Authorized
Officers
delivered
by
the
Securities
Administrator
to the
Indenture
Trustee on the Closing
Date (as such list may be modified or
supplemented
from time to
time thereafter).
Book-Entry Notes: Solely with respect to the Offered Notes,
beneficial interests in Offered Notes,
ownership and
transfers of which shall be evidenced
or made
through
book
entries by a Clearing
Agency as described in Section
2.10;
provided,
that after the occurrence of a condition
whereupon
Definitive Notes are to be issued to Note Owners of Offered
Notes, such Offered Notes shall no longer be "Book-Entry Notes."
Class:
All Notes having the same class designation.
2
Certificate
of Trust:
The
certificate
of trust of the Issuer as filed with the
Secretary of State of Delaware
and as thereafter amended from time to time.
Clearing Agency:
An organization
registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act,
as amended.
As of the Closing Date, the Clearing Agency shall be The Depository
Trust Company.
Clearing Agency Participant:
A broker,
dealer,
bank, other financial
institution or other Person for whom from
time to time a Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
Collateral:
The meaning specified in the Granting Clause of this Indenture.
Commission:
The Securities and Exchange Commission.
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 the date of execution of this Indenture is located
at 452
Fifth
Avenue,
New York,
New York 10018,
Attention:
CTLA - PHHMC
2008-CIM2,
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 2.10.
Depository
Institution:
Any depository
institution or trust
company,
including the Indenture
Trustee and the
Securities
Administrator,
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.
Event of Default:
The meaning specified in Section 5.01.
Exchange Act:
The Securities Exchange Act of 1934, as amended.
Executive
Officer:
With respect to any corporation or limited liability
company,
the Chief Executive
Officer,
Chief Operating Officer, Chief Financial Officer,
President,
Manager,
Executive Vice President,
any Vice President, the
Secretary or the Treasurer of such entity; and with respect to any
partnership, any general partner thereof.
3
Global Securities:
The meaning specified in Section 2.01(a).
Grant: Mortgage,
pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create and
grant a lien upon and a security
interest in and a right of set-off
against,
deposit,
set over and confirm
pursuant to
this
Indenture.
A Grant of the Collateral or of any other
agreement or instrument
shall include all rights,
powers and
options (but none of the
obligations) of the granting party
thereunder,
including the immediate and continuing
right to
claim for,
collect,
receive and give receipt for principal
and interest
payments in respect of the
Collateral
and all
other
moneys
payable
thereunder,
to give and
receive
notices
and
other
communications,
to make
waivers
or other
agreements,
to exercise all rights and options,
to bring
Proceedings
in the name of the granting party or otherwise and
generally to do and receive
anything
that the granting
party is or may be entitled to do or receive
thereunder
or with
respect thereto.
Holder or
Noteholder:
A Person in whose name a Note is registered on the Note Register
except that,
solely for
the purposes of taking any action or giving any consent
pursuant to this
Indenture,
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 knows 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,
the Seller and any Affiliate of any of the foregoing
Persons,
(b) does not have
any direct
financial
interest or any material
indirect
financial
interest in the Issuer,
any such other obligor,
the
Seller or any Affiliate of any of the foregoing
Persons and (c) is not connected with the Issuer,
any such other obligor,
the Seller or any
Affiliate of any of the
foregoing
Persons as an officer,
employee,
promoter,
underwriter,
trustee,
partner, director or person performing similar functions.
Independent
Certificate:
A
certificate
or
opinion
to
be
delivered
to
the
Indenture
Trustee
under
the
circumstances
described in, and otherwise
complying
with,
the
applicable
requirements
of Section
11.01,
made by an
Independent
appraiser or other expert
appointed by an Issuer Order and approved by the
Indenture
Trustee or
Securities
Administrator,
as applicable,
in the exercise of reasonable
care,
and such opinion or certificate
shall state that the
signer has read the definition of
"Independent"
in this
Indenture and that the signer is Independent
within the meaning
thereof.
Issuer:
PHH Mortgage Trust,
Series 2008-CIM2,
a Delaware statutory trust, or any successor and, for purposes of
any provision contained herein and required by the TIA, each other
obligor on the Notes.
Issuer
Order or Issuer
Request:
A written
order or request
signed in the name of the Issuer by any one of its
Authorized Officers and delivered to the Indenture Trustee or
Securities Administrator, as applicable.
4
Majority
Priority
Class Noteholders:
With
respect to all of the Notes,
on any date,
Holders of the
Priority
Class Notes
representing
more
than
50% of the
aggregate
Class Principal
Balance
of the
Priority
Class Notes
then
outstanding.
Non-Priority
Class Note:
As of any
date
of
determination,
any
Outstanding
Note
other
than
the
Priority
Class Notes.
Note: Any of the Class 1-A-1,
Class 1-A-2,
Class 2-A-1,
Class 2-A-2,
Class 3-A-1, Class 3-A-2, Class AX, Class
4-A-1,
Class 4-A-2,
Class
5-A-1,
Class 5-A-2,
Class 4-AX,
Class 5-AX,
Class APO,
Class B-1,
Class B-2,
Class B-3,
Class B-4,
Class B-5 or Class B-6 Notes issued pursuant to this Indenture,
substantially
in the forms attached hereto as
Exhibit A-1 or Exhibit A-2, as applicable.
Note
Depository
Agreement:
The
agreement
dated July 24,
2008,
between the Issuer and The
Depository
Trust
Company, as the initial Clearing Agency, relating to the Book-Entry
Notes.
Note
Owner or Owner:
With
respect
to a
Book-Entry
Note,
the
Person
that is the
beneficial
owner of such
Book-Entry
Note, as reflected on the books of the Clearing Agency or on the
books of a Person
maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect
participant,
in each case in accordance
with the rules of such Clearing
Agency),
and with respect to a Definitive
Note, the Person that is the registered
owner
of such Note as reflected in the Note Register.
Note Principal
Amount:
With respect to each Note of a given
Class (other
than the Interest Only Notes) and any
date of determination,
the product of (i) the
Class Principal
Balance of such Class and (ii) the
applicable
Percentage
Interest of such Note.
Note Register and Note Registrar:
The respective
meanings
specified in Section 2.04. The initial Note Registrar
shall be the Securities Administrator.
Offered Notes: The Class 1-A-1,
Class 1-A-2,
Class 2-A-1,
Class 2-A-2,
Class 3-A-1,
Class 3-A-2, Class 4-A-1,
Class 4-A-2, Class 5-A-1 and Class 5-A-2 Notes.
Officer's
Certificate:
A
certificate
signed by any
Authorized
Officer of the Issuer (or by an officer of the
Depositor under 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 and the
Securities
Administrator.
Unless
otherwise
specified,
any
reference
in this
Indenture
to an
Officer's
Certificate
shall be to an
Officer's
Certificate of any Authorized Officer of the Issuer.
Opinion of Counsel:
One or more written
opinions of counsel who may, except as otherwise
expressly
provided in
this Indenture,
be employees of or counsel to the Issuer, the Depositor,
or the party requesting a supplemental indenture
as provided in Section 9.08, and who shall be satisfactory to the
Indenture
Trustee,
the Note Registrar or the Securities
Administrator,
as
applicable,
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
5
satisfactory to the Indenture Trustee, the Note Registrar or the
Securities Administrator, as applicable.
Outstanding:
With respect to any Note as of the date of determination,
all Notes
theretofore
authenticated and
delivered under this Indenture except:
(i)
Notes theretofore cancelled by the Note Registrar or delivered to
the Note Registrar for
cancellation;
(ii)
Notes, or portions thereof, the payment for which money in the
necessary amount has been
theretofore deposited with the Securities Administrator or any
Paying Agent in trust for the Holders of such
Notes (provided, however, that if such Notes are to be redeemed,
notice of such redemption has been duly given
pursuant to this Indenture or provision for such notice has been
made, satisfactory to the Securities
Administrator); and
(iii)
Notes or portions thereof in exchange for or in lieu of which other
Notes have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Securities Administrator
is presented that any such Notes are held by a bona fide purchaser;
provided,
that in
determining
whether
the
Holders
of the
requisite
Outstanding
Balance of the Notes have given any
request,
demand,
authorization,
direction,
notice,
consent or waiver hereunder or under any other Operative Agreement,
Notes owned by the Issuer, any other obligor upon the Notes, the
Depositor,
the Owner Trustee,
the Indenture Trustee, the
Servicer,
the Securities
Administrator
or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed
not to be
Outstanding
(unless
such action
requires the consent,
waiver,
request or demand of 100% of the
Outstanding
Balance
represented by a particular
Class and 100% of the Outstanding
Balance represented by such Class is registered in
the name of one or more of the foregoing
entities),
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
or the
Securities
Administrator
knows
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 Securities
Administrator
the pledgee's right so to act with respect to such Notes
and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Depositor,
the Owner Trustee,
the Indenture
Trustee, the Servicer, the Securities Administrator or any
Affiliate of any of the foregoing Persons.
Outstanding
Balance:
The aggregate
principal or notional amount of the Notes Outstanding,
or of all Notes of a
Class, as applicable, as of the date of determination.
Owner Trust Certificates:
As defined in the Trust Agreement.
Owner Trustee:
LaSalle National Trust Delaware,
not in its individual
capacity,
but solely as owner trustee of
the Issuer.
6
Paying Agent:
Initially,
the Securities
Administrator or any other Person that meets the eligibility
standards
for the Indenture
Trustee
specified in Section 6.11 and is authorized and appointed by the
Issuer to make payments to and
from the Note Payment Account, including payments of principal of
or interest on the Notes on behalf of the Issuer.
PCAOB:
The Public Company Accounting Oversight Board.
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 2.05 in lieu of a mutilated,
lost,
destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
Priority
Class Notes:
With respect to all of the Notes,
(i) until
the
Class Principal
Balances of the Senior
Notes are
reduced to zero and all sums
payable to the
Holders
of the
Senior
Notes have been paid in full,
the Senior
Notes acting as a single Class and (ii) when the
Class Principal
Balances of the Senior Notes are reduced to zero and all
sums
payable to the
Holders of the
Senior
Notes have been paid in full,
each
individual
Class of
Subordinate
Notes
consecutively
in ascending order,
starting with the Class of
Subordinate
Notes with the lowest
numerical
designation,
until the
Class Principal
Balances of such
Class of
Subordinate
Notes are reduced to zero and all sums
payable to the
Holders thereof have been paid in full.
Privately Offered Notes:
The Subordinated Notes, the Interest Only Notes and the Principal
Only Notes.
Proceeding:
Any suit in equity, action at law or other judicial or
administrative proceeding.
Prospective Owner:
Each prospective purchaser and any subsequent transferee of a Note.
Rating
Agency
Condition:
With respect to any action to which the Rating
Agency
Condition
applies,
that each
Rating Agency shall have been given 10 days (or such shorter
period as is
acceptable to each Rating
Agency) prior notice
thereof and that each Rating Agency shall have notified the
Depositor,
the Owner Trustee,
the
Securities
Administrator
and the
Indenture
Trustee 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.
Redemption Date:
The Clean-Up Call Date.
Required
Rating:
The Notes have received,
on the date on which at least 50% of the Offered Notes have been
sold
to a Person that is not (or Persons
that are not) an
Affiliate
of the
Sponsor,
the
following
ratings from the Rating
Agencies:
Class
Fitch Rating
Moody's Rating
1-A-1
AAA
Aaa
1-A-2
AAA
Aaa
2-A-1
AAA
Aaa
2-A-2
AAA
Aaa
7
3-A-1
AAA
Aaa
3-A-2
AAA
Aaa
4-A-1
AAA
Aaa
4-A-2
AAA
Aaa
5-A-1
AAA
Aaa
5-A-2
AAA
Aaa
AX
AAA
Aaa
4-AX
AAA
Aaa
5-AX
AAA
Aaa
APO
AAA
Aaa
B-1
AA
Aa2
B-2
A
A2
B-3
BBB
Baa2
B-4
BB
Ba2
B-5
B
Ba2
B-6
NR
NR
N/R = Not rated by that Rating Agency
Responsible
Officer:
With respect to the Indenture
Trustee,
any officer in the corporate
trust
department or
similar group of the Indenture
Trustee with a direct
responsibility
for the
administration
of this Agreement and, with
respect to any particular
corporate trust matter,
any other officer to whom such matter is referred because of his or
her
knowledge of and familiarity
with the particular
subject.
With respect to the Securities
Administrator,
any officer in
the
corporate
trust
department or similar
group of the
Securities
Administrator
with direct
responsibility
for the
administration of this Indenture and also, with respect to a
particular
corporate trust matter,
any other officer to whom
such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
Sale and Servicing
Agreement:
The Sale and Servicing
Agreement,
dated as of July 1, 2008 among the Issuer, the
Seller,
the
Depositor,
the Master
Servicer,
the Securities
Administrator
and the Indenture
Trustee,
as such may be
amended, supplemented or otherwise modified from time to time.
Senior Notes: The Class 1-A-1,
Class 1-A-2,
Class 2-A-1,
Class 2-A-2, Class 3-A-1, Class 3-A-2, Class AX, Class
4-A-1, Class 4-A-2, Class 5-A-1, Class 5-A-2, Class 4-AX, Class
5-AX and Class APO Notes.
Sponsor:
Chimera Investment Corporation.
State:
Any one of the 50 States of the United States of America or the
District of Columbia.
Stated Maturity Date:
With respect to each Class of Notes, the date set forth in Section
2.02.
Subordinated Notes:
The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Notes.
8
Trust
Indenture
Act or TIA: The Trust
Indenture
Act of 1939 as in force on the date hereof,
unless
otherwise
specifically provided.
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.
(a)
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to
another statute or defined by rule of the Securities and Exchange
Commission have the respective meanings assigned to
them by such definitions.
Section 1.03.
Rules of Construction.
Unless the context otherwise requires:
(i)
a term has the meaning assigned to it;
(ii)
an accounting term not otherwise defined has the meaning assigned
to it in accordance with
generally accepted accounting principles as in effect from time to
time;
(iii)
"or" is not exclusive;
(iv)
"including" means including without limitation;
(v)
words in the singular include the plural and words in the plural
include the singular;
(vi)
any agreement, instrument or statute defined or referred to herein
or in any instrument or
certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all
attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted
successors and assigns;
(vii)
terms defined in the UCC and not otherwise defined herein shall
have the meaning assigned to
them in the UCC; and
9
(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 "PHH
Mortgage
Trust,
Series 2008-CIM2
Mortgage
Backed Notes,
Series 2008-CIM2."
Each
Class of
Notes,
together
with the
Securities
Administrator's
certificate
of
authentication,
shall be in substantially
the forms set forth in Exhibits A-1 and A-2 with such
appropriate
insertions,
omissions,
substitutions
and other variations as are required or permitted by this
Indenture,
and may have such letters,
numbers or other marks of identification
and such legends or endorsements
placed thereon as may,
consistently
herewith,
be
determined
by the officers
executing
such Notes,
as evidenced by their
execution of the Notes.
Any portion of the
text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes and the global certificates ("Global
Securities")
representing the Book-Entry Notes shall be
typewritten,
printed,
lithographed
or engraved or produced by any
combination
of these
methods (with or without steel
engraved borders), all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
The Notes shall be issued as
registered
Notes.
Each Class of
Offered
Notes,
except as otherwise
provided by
supplement to this
Indenture,
shall be issued in a
denomination
of at least $25,000 in principal
amount and any larger
denomination
that is an integral
multiple of
$1 approved
by the Issuer,
such approval to be evidenced by the execution
thereof;
provided,
however,
one Note may be issued
in an
amount
less than the
minimum
denomination.
Each
Class of
Privately
Offered Notes,
except as otherwise
provided by supplement to the Indenture,
shall be issued in a denomination
of at least $100,000 in principal
amount or notional amount (in the case of the Interest Only Notes),
as applicable,
and
any larger
denomination
that is an integral
multiple of $1 approved by the Issuer,
such approval to be evidenced by the
execution
thereof;
provided,
however,
one
Note of each
Class may
be
issued
in an
amount
less
than
the
minimum
denomination.
Privately
Offered Notes may solely be issued,
transferred
and exchanged in the form of Definitive
Notes.
If the Offered
Notes are
issuable in whole or in part as
Book-Entry
Notes,
any such
Offered
Note may provide that it
shall represent the aggregate
amount of Outstanding
Notes of its Class from time to time endorsed thereon and may
provide
that the
aggregate
amount of
Outstanding
Notes of its
Class 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 of such Class.
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 Securities
Administrator.
10
Each Note shall be dated the date of its
authentication.
The terms of the Notes set forth in Exhibit A-1 and A-2
are part of the terms of this Indenture.
Section 2.02.
Execution,
Authentication
and
Delivery.
(a) The
Notes
shall be
executed
on behalf of the
Issuer by any
Authorized
Officer
of the
Owner
Trustee
or the
Securities
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 Securities
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 this
Section 2.02, the Securities
Administrator shall,
upon Issuer Order,
authenticate
and deliver the Notes for original issue in the initial
aggregate
principal
amounts or
notional amount with respect to each Class as specified below:
Class Principal
Class
or Notional Amount
Stated Maturity Date
1-A-1
$22,814,000.00
July 2038
1-A-2
$1,425,000.00
July 2038
2-A-1
$37,797,000.00
July 2038
2-A-2
$2,360,000.00
July 2038
3-A-1
$20,631,000.00
July 2038
3-A-2
$1,288,000.00
July 2038
4-A-1
$8,954,000.00
June 2023
4-A-2
$566,000.00
June 2023
5-A-1
$43,777,000.00
July 2038
5-A-2
$2,752,000.00
July 2038
AX
$86,315,000.00*
July 2038
4-AX
$10,191,941.04*
June 2023
5-AX
$49,577,031.04*
July 2038
APO
$402,357.52
July 2038
B-1
$4,157,000.00
July 2038
B-2
$1,436,000.00
July 2038
B-3
$604,000.00
July 2038
B-4
$1,209,000.00
July 2038
B-5
$303,000.00
July 2038
B-6
$680,003.46
July 2038
___________________
* Notional Amount
11
The aggregate
Class Principal
Balances (or
Class Notional
Amount) of such Classes of Notes
outstanding at any
time may not exceed such respective amounts.
(b)
Issuance of the Notes shall be conditioned upon receipt by the
Indenture Trustee or the Securities
Administrator, as applicable, 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 the
Securities Administrator, as provided herein or in the Sale and
Servicing Agreement;
(iii)
An executed counterpart from each party to each of the Trust
Agreement, the Indenture, the
Administration Agreement, the Assignment Agreement and the Sale and
Servicing Agreement, respectively, and a
certified copy of the Certificate of Trust;
(iv)
Except to the extent provided in subsection (c) below, Opinions of
Counsel addressed to the
Indenture Trustee to the effect that:
(I)
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;
(II)
the issuance of the Notes has been duly and validly authorized by
the Issuer;
(III)
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);
(IV)
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);
12
(V)
the Issuer is not required to be registered under the Investment
Company Act
of 1940, as amended;
(VI)
the Issuer will not be characterized as a taxable mortgage pool or
an
association (or publicly traded partnership) taxable as a
corporation;
(VII)
the provisions of the Indenture are sufficient to create a valid
security
interest in favor of the Indenture Trustee in the Collateral; and
(VIII)
this Indenture has been duly qualified under the Trust Indenture
Act.
(v)
An Officer's Certificate of the Depositor on behalf of the Issuer
complying with the
requirements of Section 11.01 and stating that:
(I)
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;
(II)
any form UCC-1 filed or to be filed against the Issuer for the
benefit of the
Indenture Trustee with respect to the Collateral, shall contain a
statement that a purchaser of
a security interest in any Collateral described in such financing
statement will violate the
rights of the Indenture Trustee, as secured party, in such
Collateral;
(III)
attached thereto are true and correct copies of letters signed by
the Rating
Agencies to the effect that each Class of Notes being rated by it
has been assigned the
Required Rating; and
(IV)
all conditions precedent provided for in this Indenture relating to
the
authentication and delivery of the Notes have been complied with.
(vi)
A letter from each Rating Agency confirming the Required Rating of
each Class of Notes rated by
such Rating Agency.
(c)
The representations and warranties made pursuant to the Officer's
Certificate delivered pursuant to
subsection (b)(v) above 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 (b)(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 and
the Securities Administrator, which shall be conclusively evidenced
by the Securities Administrator's authentication and
13
delivery of the Notes and the Rating Agencies' issuance of their
letters pursuant to subsection (b)(vi) above and such
acceptable opinions shall be deemed to be the Opinions of Counsel
required pursuant to subsection (b)(iv) above.
(d)
The Notes that are authenticated and delivered by the Securities
Administrator 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.
(e)
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose,
unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed
by the Securities Administrator by the manual signature of one of
its authorized signatories, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that
such Note has been duly authenticated and delivered
hereunder.
Section 2.03.
Limitations
on
Transfer
of the Notes.
(a) Except
for a transfer
made to the
Sponsor or an
affiliate of the Sponsor,
no Privately Offered Note may be offered,
sold,
delivered or transferred
(including,
without
limitation,
by pledge or
hypothecation)
except (i) under
Rule 144A under the Securities Act
("Rule 144A") to qualified
institutional
buyers or "QIBs"
purchasing for their own account or for the account of one or more
QIBs, for whom they are
authorized
to act or (ii) to
accredited
investors or "AIs," as defined in
Rule 501(a)(1),
(2),
(3) or
(7) under
the
Securities Act
("Rule 501(a)"),
purchasing for their own account or for the accounts of one or more
AIs for whom they are
authorized to act. Except as provided in Section 4.02(c),
the foregoing
requirements
shall only be satisfied by the Note
Registrar's
receipt of an investment
letter from the transferee
substantially in the form of Exhibit B-1 or Exhibit B-2,
as applicable.
Each Privately
Offered Note shall bear a restrictive
legend to the foregoing effect
substantially in the
form of the legends on the face of the form of Note at Exhibit A-2.
(b)
Except for a transfer made to the Sponsor or an affiliate of the
Sponsor, (i) no transfer of a Privately
Offered 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 an investment letter
from the transferee substantially in the form of Exhibit B-1 or
Exhibit B-2, as applicable, hereto), to the effect that
such transferee is not acquiring such Note for, or with the assets
of, an employee benefit plan or other retirement
arrangement that is subject to Section 406 of ERISA or to Section
4975 of the Code or to any substantially similar law
("Similar Law"), or any entity deemed to hold the plan assets of
the foregoing (collectively, "Benefit Plans") and
(ii) no transfer of an Offered 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
C hereto) to the effect that its acquisition and
holding of such Notes for, or with the assets of, a Benefit Plan
will not result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code which is not
covered under Prohibited Transaction Class Exemption
("PTCE") 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23
(each, an "Investor-Based Exemption"), the non-fiduciary
14
service provider exemption under Section 408(b)(17) of ERISA and
Section 4975(d)(20) of the Code or some other applicable
exemption, and will not result in a non-exempt violation of any
Similar Law.
(c)
In the case of an Offered Note that is a Book-Entry Note, for
purposes of clauses (i) and (ii) of
Section 2.03(b), such representations shall be deemed to have been
made to the Note Registrar by the transferee's
acceptance of such Offered 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),
none of the Indenture
Trustee,
the Securities
Administrator,
the Note
Registrar,
the Issuer or the Depositor shall have any liability to any
Person for any
registration
of
transfer of any Note that is in fact not
permitted
by this
Section
2.03(c) or for the
Paying Agent
making any
payments
due on such Note to the Holder
thereof or taking any other action with respect to such
Holder under the
provisions of this
Indenture so long as such transfer was registered by the Note
Registrar in accordance
with the foregoing
requirements.
In addition,
none of the Indenture
Trustee,
the
Securities
Administrator,
the Note
Registrar
or the
Depositor
shall be
required
to
monitor,
determine
or inquire as to
compliance
with the
transfer
restrictions
with respect to any Note in the form of a Book-Entry
Note,
and none of the
Indenture
Trustee,
Securities
Administrator,
the Note
Registrar or the Depositor
shall have any liability for transfers of Offered Notes as
Book-Entry
Notes or any interests therein made in violation of the
restrictions on transfer described in this Section 2.03(c).
(d)
In the event that a Note is transferred to a Person that does not
meet the requirements of this Section
2.03, such transfer shall be of no force and effect, shall be void
ab initio, and shall not operate to transfer any
rights to such Person, notwithstanding any instructions to the
contrary to the Issuer, the Note Registrar, the Indenture
Trustee or any intermediary; and the Paying Agent shall not make
any payments on such Note for as long as such Person is
the Holder of such Note.
(e)
The Note Registrar on behalf of the Depositor shall provide to any
Holder of a Privately Offered Note
and any prospective transferee designated by any such Holder,
information regarding such Privately Offered Note and the
Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in
Rule 144A(d)(4) for transfer of any such Note without registration
thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A.
Each Holder of a Privately Offered Note desiring to effect such a
transfer
shall, and does hereby agree to, indemnify the Issuer, the Owner
Trustee, the Indenture Trustee, the Note Registrar, the
Seller and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in
accordance with federal and state securities laws and any other
restrictions specified in this Section 2.03.
The Note
Registrar
shall
cause each Note to contain a legend
substantially
similar to the
applicable
legend
provided
in
Exhibit
A-1 or A-2
hereto,
as
applicable,
stating
that
transfer
of such
Notes is
subject to certain
restrictions
as set forth
herein.
The Note
Registrar
shall not register the transfer of Privately
Offered
Notes to a
transferee unless the provisions of Section 2.14 are satisfied with
respect to such transfer.
15
Section 2.04.
Registration;
Registration of Transfer and Exchange.
The Issuer shall cause the Note Registrar
to keep a register
(the "Note
Register") in which,
subject to such
reasonable
regulations
as it may prescribe and the
restrictions
on transfers of the Notes set forth herein,
the Issuer shall provide for the
registration
of Notes and the
registration of transfers of Notes.
The Securities
Administrator
initially shall be the "Note Registrar" for the purpose
of registering
Notes and transfers of Notes as herein provided,
and the Indenture Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies
thereof,
and the Indenture
Trustee shall have the right to
rely upon a
certificate
executed on behalf of the Note
Registrar by a
Responsible
Officer
thereof as to the names and
addresses
of the Holders of the Notes and the
principal
amounts and number of such Notes.
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 Securities
Administrator is appointed by the Issuer as Note Registrar, the
Issuer will
give the
Indenture
Trustee
and the
Securities
Administrator
prompt
written
notice of the
appointment
of such Note
Registrar and of the location,
and any change in the location,
of the Note
Register,
and the Indenture
Trustee and the
Securities
Administrator
shall have the right to inspect the Note Register at all
reasonable
times and to obtain copies
thereof,
and the
Indenture
Trustee
and the
Securities
Administrator
shall have the right to rely upon a
certificate
executed on behalf of the Note
Registrar by an Executive
Officer
thereof as to the names and addresses of the Holders of
the Notes and the principal amounts or notional amounts, as
applicable, and number of such Notes.
Subject to Section 2.03,
upon surrender for
registration
of transfer of any Note at the office or agency of the
Note
Registrar to be maintained as provided in Section 3.02, the Issuer
shall
execute,
and the Securities
Administrator
or the Note
Registrar
on its behalf
shall
authenticate
and the
Noteholder
shall be
entitled to obtain from the Note
Registrar
on its
behalf,
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 or Percentage Interest.
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 or Percentage
Interest,
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
Securities
Administrator
or the Note Registrar on its behalf shall
authenticate
and the Noteholder shall be entitled to
obtain from the Securities
Administrator
or the Note Registrar on its behalf,
the Notes which the Noteholder
making the
exchange is entitled to receive.
All Notes
issued upon any
registration
of transfer or exchange of Notes shall be the valid
obligations
of the
Issuer,
evidencing the same debt, and entitled to the same benefits under
this Indenture,
as the Notes
surrendered
upon
such registration of transfer or exchange.
Every Note
presented or
surrendered
for
registration
of transfer or exchange shall be duly endorsed by, or be
accompanied
by a written
instrument of transfer in form
satisfactory
to the Note Registrar duly executed by, the Holder
thereof or such Holder's
attorney duly
authorized in writing,
with such signature
guaranteed by an "eligible
guarantor
16
institution"
meeting the requirements of the Note Registrar,
which
requirements
include
membership or participation in
the
Securities
Transfer
Agent's
Medallion
Program
("STAMP")
or such other
"signature
guarantee
program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer
or the Note
Registrar may require
payment of a sum sufficient to cover any tax or other
governmental
charge that may be
imposed in connection
with any
registration
of transfer or exchange of Notes,
other than exchanges
pursuant to Section
2.05 or 9.06 not involving any transfer.
The preceding
provisions of this Section 2.04
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 fifteen
(15) days
preceding the Payment
Date for any payment with respect to such Note.
Section 2.05.
Mutilated,
Destroyed,
Lost or Stolen Notes.
If (i) any
mutilated
Note is surrendered to the
Note
Registrar,
or the Note Registrar
receives
evidence to its
satisfaction of the
destruction,
loss or theft of any
Note,
and
(ii) there is delivered to the Note
Registrar
such security or indemnity as may be required by it to hold the
Issuer,
the Indenture Trustee and the Note Registrar
harmless,
then, in the absence of actual notice to the Issuer,
the
Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser,
and upon
certification
provided by the Holder of such Note that the
requirements
of Section
8-405 of the Uniform
Commercial
Code are met, the
Issuer
shall
execute,
and upon its
request the
Securities
Administrator
or the Note
Registrar
on its behalf
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,
or shall have been
called
pursuant to exercise of the
Clean-up Call Right,
instead of issuing a replacement
Note, the Issuer may pay such
destroyed,
lost or stolen Note when
so due or payable or upon the Redemption Date without
surrender
thereof.
If, after the delivery of such replacement Note
or payment of a destroyed,
lost or stolen Note pursuant to the proviso to the preceding
sentence,
a bona fide
purchaser
of the
original
Note in lieu of which such
replacement
Note was issued
presents for payment such
original
Note,
the
Issuer and the Indenture
Trustee or the Note
Registrar on its behalf shall be entitled to recover such
replacement
Note
(or such payment) from the Person to whom it was delivered or any
Person taking such
replacement
Note from such Person to
whom such
replacement
Note was
delivered
or any
assignee of such Person,
except a bona fide
purchaser,
and shall be
entitled to recover upon the security or indemnity
provided
therefor to the extent of any loss,
damage,
cost or expense
incurred by the Issuer, the Indenture Trustee or the Note Registrar
in connection therewith.
Upon the issuance of any
replacement
Note under this
Section,
the Issuer,
the
Indenture
Trustee or the Note
Registrar
may require the payment by the Holder of such Note of a sum
sufficient
to cover any tax or other
governmental
charge that may be imposed in relation
thereto and any other reasonable
expenses
(including the fees and expenses of the
Indenture Trustee or the Note Registrar) connected therewith.
17
Every replacement Note issued pursuant to this Section in
replacement of any mutilated,
destroyed, lost or stolen
Note shall
constitute
an
original
additional
contractual
obligation
of the
Issuer,
whether
or not the
mutilated,
destroyed,
lost or stolen Note shall be at any time
enforceable
by anyone,
and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The
provisions
of this Section are
exclusive
and shall
preclude
(to the extent
lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.
Section 2.06.
Persons Deemed Owners.
Prior to due presentment
for
registration of transfer of any Note, the
Issuer,
the
Securities
Administrator,
the
Indenture
Trustee,
the Note
Registrar
and any agent of the
Issuer,
the
Securities
Administrator,
the
Indenture
Trustee
or the Note
Registrar
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
Securities
Administrator,
the
Indenture
Trustee or any agent of the Issuer,
the
Securities
Administrator, the Indenture Trustee or the Note Registrar shall be
affected by notice to the contrary.
Section 2.07.
Payment of Principal and
Interest.
(a) Each
Class of
Notes,
other than the
Principal
Only
Notes,
shall accrue
interest at its respective Note Interest Rate as set forth in the
Sale and Servicing
Agreement,
and
such
interest
shall be payable on each
Payment
Date,
subject
to
Section 3.01.
Interest
shall be
computed
on each
Class of
Notes on the basis of a 360-day year
consisting
of twelve
(12) thirty
(30) day
months.
With respect to each
outstanding
Class of
Offered Notes,
the Securities
Administrator
shall
determine
One-Month LIBOR for each applicable
Accrual Period on the LIBOR
Determination
Date, in accordance
with the
provisions of the Sale and Servicing
Agreement.
All interest payments on each Class of Notes shall be made pro rata
to the Noteholders of such
Class entitled
thereto and
as among
Classes of Notes shall be paid in the order of priority
as set forth in Section
5.01 of the Sale and
Servicing
Agreement.
Any
installment of interest or principal
payable on any Note shall be paid on the applicable
Payment Date to
the Person in whose name such Note (or one or more
Predecessor
Notes) is
registered
on the Record Date by check
mailed
first-class
postage
prepaid to such
Person's
address as it appears on the Note
Register
on such
Record Date or, upon
written
request made to the Paying Agent 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
2.12(b),
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
Stated
Maturity Date for such Class of
Notes,
which shall be payable as provided
below.
The funds
represented
by any
such checks returned undelivered shall be held in accordance with
Section 3.03.
(b)
The principal amount of the Notes (other than the Interest Only
Notes) shall be payable in installments
on each Payment Date as provided herein and in such Notes, subject
to Section 3.01.
Notwithstanding the foregoing, the
18
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 Stated Maturity Date, (ii) the Clean-Up Call
Date or (iii) the date on which an Event of Default shall
have occurred and be continuing, if the Indenture Trustee or the
applicable Majority Priority Class Noteholders shall
have declared such Notes to be immediately due and payable in the
manner provided in Section 5.02 hereof.
(c)
All principal payments on each Class of Notes (other than the
Interest Only Notes) shall be made pro
rata to the Noteholders of such Class entitled thereto based on
their respective Note Principal Amounts immediately prior
to that date and as among Classes of Notes shall be paid in the
order of priority set forth in Section 5.01 of the Sale
and Servicing Agreement.
The Paying Agent shall notify the Person in whose name a Note is
registered at the close of
business on the Record Date preceding the Payment Date on which the
Issuer expects that the final installment of
principal of and interest on such Note will be paid.
Such notice shall be mailed or transmitted by facsimile no later
than five Business Days prior to such final Payment Date and shall
specify that such final installment will be payable
only upon presentation and surrender of such Note and shall specify
the place where such Note may be presented and
surrendered for payment of such installment.
Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.02.
Section 2.08.
Cancellation.
All
Notes
surrendered
for
payment,
registration
of
transfer,
exchange
or
redemption
shall be delivered to the Note
Registrar
and shall be promptly
cancelled by the Note
Registrar.
The Issuer
may at any time deliver to the Note Registrar for cancellation any
Notes previously
authenticated and delivered
hereunder
which the Issuer may have
acquired in any manner
whatsoever,
and all Notes so delivered
shall be promptly
cancelled by
the Note
Registrar.
No Notes shall be
authenticated
in lieu of or in exchange
for any Notes
cancelled
as provided in
this
Section,
except as expressly
permitted by this
Indenture.
All
cancelled
Notes may be held or disposed of by the
Note
Registrar in
accordance
with its standard
retention or disposal
policy as in effect at the time unless the Issuer
shall direct by an Issuer Order that they be
destroyed or returned to it;
provided,
that such Issuer Order is timely and
the Notes have not been previously disposed of by the Note
Registrar.
Section 2.09.
Release of Collateral.
(a) Except as otherwise
provided in
subsection (b) of this Section and
the other
Operative
Agreements,
the Indenture
Trustee,
or the Custodian if requested by the Indenture
Trustee,
shall
release
property
from the lien of this
Indenture
only upon
receipt by it of an Issuer
Request
accompanied
by (i) an
Officer's
Certificate,
(ii) an Opinion of Counsel,
(iii) certificates in accordance with TIA Sections 314(c) and
(d)(1),
and (iv)(A)
Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
or (B) an Opinion of Counsel in
lieu of such
Independent
Certificates
to the effect
that the TIA does not require
any such
Independent
Certificates;
provided that no such
Independent
Certificates or Opinion of Counsel in lieu of such
Independent
Certificates
shall be
necessary in respect of property
released from the lien of the Indenture in accordance with the
provisions
hereof if such
property consists solely of cash.
(b)
The Servicer (or if the Servicer does not do so, the Master
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 related Mortgaged Property at
any time (i) after a payment by the Originator of the Purchase
Price of the Mortgage Loan, (ii) after a Qualified
19
Substitute Mortgage Loan is substituted for such Mortgage Loan and
payment of the Substitution Amount, if any, has been
received by the Issuer, (iii) after liquidation of the Mortgage
Loan in accordance with the Sale and Servicing Agreement
and the deposit of all Liquidation Proceeds, condemnation proceeds
and Insurance Proceeds in the related Custodial
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 III of the Sale
and Servicing Agreement.
The Indenture Trustee, or the Custodian if requested by the
Indenture Trustee, shall release
any such Collateral upon a request to release executed by the
Master Servicer or the Servicer, as applicable, and an
Officer's Certificate to the effect that the requirements for
release have been met.
(c)
The Custodian, on behalf of the Indenture Trustee, shall, if
requested by the Servicer or the Master
Servicer, temporarily release to such party the Mortgage File
pursuant to the provisions of Section 3.07 of the Sale and
Servicing Agreement.
Section 2.10.
Book-Entry
Notes.
Each Class of Offered Notes will be issued in the form of
typewritten
Notes
or Global Securities
representing
Book-Entry
Notes, to be delivered to the Note Registrar,
as custodian for the initial
Clearing
Agency,
by, or on behalf
of, the
Issuer.
The
Book-Entry
Notes
shall be
registered
initially
on the Note
Register in the name of Cede & Co., the nominee of the initial
Clearing
Agency,
and no Owner of Book-Entry Notes thereof
will receive a Definitive
Note
representing
such Note Owner's
interest in such Book-Entry
Note,
except as provided in
Section 2.12.
Unless and until definitive,
fully registered Notes (the "Definitive
Notes") have been issued to such Note
Owners of Book-Entry Notes pursuant to Section 2.12:
(i)
the provisions of this Section shall be in full force and effect;
(ii)
the Note Registrar, the Indenture Trustee and the Securities
Administrator shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and
interest on the Book-Entry Notes and the giving of instructions or
directions hereunder) as the sole holder of
the Book-Entry Notes, and shall have no obligation to the Owners of
Book-Entry Notes;
(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 Owners of Book-Entry Notes shall be exercised only
through the Clearing Agency
and shall be limited to those established by law and agreements
between such Owners of Book-Entry Notes and the
Clearing Agency and/or the Clearing Agency Participants pursuant to
the Note Depository Agreement.
Unless and
until Definitive Notes are issued to Holders of Offered Notes,
pursuant to Section 2.12, neither the Indenture
Trustee nor the Note Registrar shall register any transfer of a
beneficial interest in a Book-Entry Note; and the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Book-Entry
Notes to such Clearing Agency Participants;
and
20
(v)
whenever this Indenture requires or permits actions to be taken
based upon instructions or
directions of Holders of Offered Notes evidencing a specified
percentage of the Outstanding Balance of the Notes
(or the Priority Class Notes), the Clearing Agency shall be deemed
to represent such percentage only to the
extent that it has received instructions to such effect from Owners
of Book-Entry Notes and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the
Book-Entry Notes and has delivered such instructions to the Note
Registrar.
Section 2.11.
Notices to Clearing
Agency.
Whenever a notice or other
communication
to the
Noteholders
is
required
under this
Indenture,
unless and until
Definitive
Notes shall have been
issued to such Owners of
Book-Entry
Notes pursuant to Section 2.12, the Note Registrar shall give all
such notices and
communications
specified
herein to be
given to Owners of Book-Entry Notes to the Clearing Agency, and
shall have no obligation to such Note Owners.
Section 2.12.
Definitive
Notes.
(a) The
Privately
Offered
Notes
shall
solely
be
issued in the form of
Definitive Notes and shall be registered initially in the Note
Register in the name of the Sponsor, or its designee.
(b)
In addition, if (i) the Clearing Agency or the Depositor advises
the Securities Administrator in writing
that the Clearing Agency is no longer willing, qualified or able to
discharge properly its responsibilities as nominee
and depository with respect to the Book-Entry Notes, and the
Depositor is unable to locate a qualified successor,
(ii) the Depositor, at its sole option, with the consent of the
Securities Administrator, elects to terminate a book-entry
system through the Clearing Agency or (c) after the occurrence of
an Event of Default, Note Owners having Percentage
Interests aggregating not less than 51% of the Book-Entry Notes
advise the Securities Administrator and the Clearing
Agency in writing that the continuation of a book-entry system
through the Clearing Agency (or a successor thereto) is no
longer in the best interest of Note Owners, then the Clearing
Agency shall notify all Owners of Book-Entry Notes and the
Note Registrar of the occurrence of any such event and of the
availability of Definitive Notes to Owners of Book-Entry
Notes requesting the same.
Upon surrender to the Note Registrar of the typewritten Notes
representing the Book-Entry
Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Securities
Administrator shall authenticate the Definitive Notes in accordance
with the instructions of the Clearing Agency.
None
of the Issuer, the Note Registrar, the Securities Administrator or
the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
(c)
Upon the issuance of Definitive Notes, the Indenture Trustee, the
Securities Administrator and the Note
Registrar shall recognize the Holders of such Definitive Notes as
Noteholders.
Section 2.13.
Tax Treatment.
The Issuer has entered into this Indenture,
and the Notes will be issued,
with
the intention
that,
for federal,
state and local income,
single
business and franchise tax purposes,
the Notes (other
than the Privately
Offered Notes) will qualify as
indebtedness
of the Issuer secured by the Collateral
(except that any
Offered
Note held by a person
that,
for
federal
income tax
purposes,
owns or is treated as owning a 100%
Percentage
21
Interest
of the Owner
Trust
Certificates
shall not be treated
as
outstanding
indebtedness
for such
purposes).
The
Issuer,
by entering into this
Indenture,
and each Noteholder
(other than a Holder of a Privately
Offered Note), by its
acceptance of a Note (and each
applicable
Note Owner by its
acceptance of an interest in the related
Book-Entry
Note),
agree to treat the Notes for federal,
state and local income,
single
business and franchise tax purposes as indebtedness
of the Issuer (except that any Offered Note held by a person that,
for federal income tax purposes,
owns or is treated as
owning a 100% Percentage
Interest of the Owner Trust
Certificates
shall not be treated as outstanding
indebtedness
for
such purposes).
Section 2.14.
Restrictions on Transfer and Retention of Beneficial Ownership
Interest in the Privately
Offered
Notes.
(a) The Sponsor
will be the initial
Note Owner of a 100%
Percentage
Interest in each of the
Privately
Offered Notes and, pursuant to the Trust Agreement,
the initial
"Certificateholder" (as such term is defined in the Trust
Agreement) of a 100% Percentage Interest in the Owner Trust
Certificates.
The Sponsor (or any other
Certificateholder
or
Holder of the Privately
Offered Notes) is hereby
prohibited from
transferring
and agrees not to transfer any beneficial
ownership
interest in any Privately
Offered Note or the Owner Trust
Certificates,
except as provided in
subsection (b)
below.
(b)
Any sale, transfer, pledge or other disposition of any beneficial
ownership interest in (i) any
Privately Offered Note may only be effectuated in conjunction with
a simultaneous sale, transfer, pledge or other
disposition of an equal Percentage Interest in (A) all other
classes of Privately Offered Notes then Outstanding and
(B) the Owner Trust Certificates, and (ii) the Owner Trust
Certificates may only be effectuated in conjunction with a
simultaneous sale, transfer, pledge or other disposition of an
equal Percentage Interest in all classes of the Privately
Offered Notes then Outstanding, unless in each case the prospective
transferee of such beneficial ownership interest
furnishes to the Note Registrar an Opinion of Counsel concluding
that such sale, transfer, pledge or other disposition
will not cause the Trust to become subject to federal income tax as
a corporation.
No sale, transfer, pledge or other
disposition of any beneficial ownership interest in any Privately
Offered Note shall be in respect of less than a 10%
Percentage Interest in such Privately Offered Note.
The Sponsor (or such other Holder of the Owner Trust Certificates)
is hereby required to notify the Indenture Trustee and the Note
Registrar of any sale, transfer, pledge or other
disposition or retention of the Owner Trust Certificates or any
Privately Offered Notes in contravention of these
restrictions.
(c)
In connection with any sale, transfer, pledge or other disposition
of all or a portion of the Privately
Offered Notes pursuant to subsection (b) above, the transferee
shall certify to the Note Registrar, the Indenture Trustee
and the Securities Administrator in an investment letter
substantially in the form attached hereto as Exhibit B-1 or
Exhibit B-2, as applicable, that such transfer has been made in
accordance with subsection (b) above and shall agree to
indemnify the Issuer, the Indenture Trustee, the Securities
Administrator, the Seller, the Note Registrar and the
Depositor against any liability that may result if the transfer was
made in contravention of subsection (b) above.
(d)
If any purported transferee shall become a Holder in violation of
the provisions of this Section 2.14,
then upon receipt of written notice to the Note Registrar and the
Paying Agent that the registration of transfer of the
Privately Offered Notes to such Holder was not in fact permitted by
this Section, then the transfer to that Holder shall
be void ab initio and the last preceding Holder that was and that
continues to be an eligible Holder in accordance with
22
the provisions of this Section shall be restored to all rights as
Holder thereof retroactive to the date of such
registration of transfer of such Privately Offered Notes.
The Note Registrar shall be under no liability to any Person
for any registration of transfer of any Privately Offered Note that
is in fact not permitted by this Section, for making
any payment due on any such Privately Offered Note to the Holder
thereof or for taking any other action with respect to
such Holder under the provisions of this Indenture so long as the
transfer relates to a simultaneous transfer of an equal
Percentage Interest in all Outstanding Classes of Privately Offered
Notes and Owner Trust Certificates or the Note
Registrar receives the Opinion of Counsel described in subsection
(b) above.
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, and any other
amounts due in respect of, the Notes in
accordance
with the terms of the
Notes,
the Sale and
Servicing
Agreement
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
Securities
Administrator
are being applied in accordance with Section 5.04(b),
subject to and in accordance with Section
8.02(c),
the Issuer will cause to be distributed all amounts on deposit in
the Distribution
Account on a Payment Date and
deposited
therein pursuant to the Sale and Servicing
Agreement for the benefit of the Notes, to the Noteholders.
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
related
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 Note
Registrar on behalf of the Issuer will
maintain an
office or agency where Notes may be surrendered
for
registration
of transfer or exchange,
and where notices and demands
to or upon the
Issuer in
respect
of the
Notes and this
Indenture
may be
served.
As of the
Closing
Date,
the Note
Registrar
designates the following office for such purposes:
Sixth Street and Marquette
Avenue,
Minneapolis,
Minnesota
55479.
Section 3.03.
Money for
Payments to be Held in Trust.
As provided in Section
8.02,
all payments of amounts
due and
payable
with
respect to any Notes
that are to be made from
amounts
withdrawn
from the
Distribution
Account
pursuant
to Section
5.01 of the Sale and
Servicing
Agreement
shall be made on behalf of the
Issuer by the
Securities
23
Administrator
or by another
Paying Agent,
and no amounts so withdrawn
from the such account for payments of Notes shall
be paid over to the Issuer except as provided in this Section.
On or before the Business Day preceding
each Payment
Date,
the Issuer shall deposit or cause to be deposited in
the
Distribution
Account an aggregate sum sufficient to pay the amounts then
becoming due under the related
Notes,
such
sum to be held in trust for the benefit of the Persons
entitled
thereto,
and (unless the Paying Agent is the
Securities
Administrator) shall promptly notify the Securities Administrator
of its action or failure so to act.
The Securities
Administrator
is hereby
appointed the initial Paying Agent.
Any successor Paying Agent shall be
appointed by Issuer Order with written
notice
thereof to the
Indenture
Trustee and the
Securities
Administrator.
Any
successor
Paying
Agent
appointed
by the Issuer
shall be a Person that would be eligible
to be the
indenture
trustee
hereunder as provided in Section
6.11.
The Issuer shall not appoint any Paying
Agent (other than the
Indenture
Trustee
or the
Securities
Administrator)
that is not, at the time of such
appointment,
a
Depository
Institution.
The Issuer
shall give prior written
notice to the Indenture
Trustee of the
appointment
of new or additional
paying agents for the
Notes,
the location and any change in the location of the office or agency
of the Note
Registrar
maintained
as provided
in Section 3.02.
The Issuer shall cause each Paying
Agent other than the
Indenture
Trustee or the
Securities
Administrator
to
execute and deliver to the
Indenture
Trustee and the
Securities
Administrator
an instrument in which such Paying Agent
shall agree with the
Indenture
Trustee
(and if the
Indenture
Trustee or the
Securities
Administrator
acts as Paying
Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i)
hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for
the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein
provided and as is provided in the Sale and
Servicing Agreement;
(ii)
give the Indenture Trustee and Securities Administrator notice of
any default by the Issuer in
the making of any payment required to be made with respect to the
Notes of which the Paying Agent has actual
knowledge;
(iii)
at any time during the continuance of any default specified in
clause (ii), upon the written
request of the Securities Administrator, forthwith pay to the
Securities Administrator all sums so held in trust
by such Paying Agent;
(iv)
immediately resign as a Paying Agent and forthwith pay to the
Securities Administrator all sums
held by it in trust for the payment of Notes if at any time it
ceases to meet the standards required to be met by
a Paying Agent at the time of its appointment; and
(v)
comply with all requirements of the Code with respect to the
withholding from any payments made
by it on any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable
reporting requirements in connection therewith; provided, however,
that with respect to reporting requirements
applicable to original issue discount, the accrual of market
discount or the amortization of premium on the
Notes, the Securities Administrator shall provide the calculations
pertaining thereto and the amount of any
resulting withholding taxes to the Paying Agent.
24
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 Securities
Administrator
all sums held in trust
by such Paying Agent,
such sums to be held by the
Securities
Administrator
upon the same trusts as those upon which the
sums were held by such Paying
Agent;
and upon such
payment by any Paying
Agent to the
Securities
Administrator,
such
Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable
laws with respect to escheat of funds,
any money held by the Securities
Administrator
or
any
Paying
Agent in trust for the
payment of any amount due with
respect to any Note and
remaining
unclaimed
for 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,
the
Securities
Administrator
or such Paying
Agent with
respect to such trust money
shall
thereupon
cease;
provided,
however,
that the Paying
Agent,
before being
required to make any such
repayment,
shall at the expense and
direction
of the Issuer
cause to be
published
once,
in a
newspaper
published
in the English
language,
customarily
published
on each
Business Day and of general
circulation
in The City of New York
(including,
but not limited to, The
Bond Buyer),
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,
the Securities
Administrator or Paying Agent shall also adopt and employ, at the
expense
and direction of the Issuer, any other reasonable means of
notification of such repayment
(including,
but not limited to,
mailing
notice of such repayment to Holders whose Notes have been called
but have not been
surrendered
for redemption or
whose right to or interest in moneys due and
payable
but not claimed is
determinable
from the records of the
Indenture
Trustee, the Securities Administrator or of any Paying Agent, at
the last address of record for each such Holder).
Section 3.04.
Existence.
(a) The Issuer will keep in full effect its
existence,
rights and
franchises as a
statutory
trust under the laws of the State of Delaware
(unless it
becomes,
or any
successor
Issuer
hereunder
is or
becomes,
organized
under the laws of any other State or of the United
States of
America,
in which case the Issuer will
keep in full effect its existence,
rights and franchises
under the laws of such other
jurisdiction)
and will obtain and
preserve its
qualification
to do business in each
jurisdiction in which such
qualification
is or shall be necessary to
protect the validity
and
enforceability
of this
Indenture,
the Notes,
the
Collateral
and each other
instrument
or
agreement included in the Collateral.
(b)
Any successor to the Owner Trustee appointed pursuant to Section
9.03 of the Trust Agreement shall be
the successor Owner Trustee under this Indenture without the
execution or filing of any paper, instrument or further act
to be done on the part of the parties hereto.
25
(c)
Upon any consolidation or merger of or other succession to the
Owner Trustee, the Person succeeding to
the Owner Trustee under the Trust Agreement may exercise every
right and power of the Owner Trustee under this Indenture
with the same effect as if such Person had been named as the Owner
Trustee herein.
Section 3.05.
Protection of Collateral.
The Issuer will from time to time execute,
deliver and file all such
financing
statements,
continuation
statements,
instruments
of further
assurance and other
instruments
solely at the
expense of the Issuer, and will take such other action necessary or
advisable to:
(i)
provide further assurances 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
Securities
Administrator,
its agent and
attorney-in-fact
to
execute
any
financing
statement,
continuation
statement or other instrument
provided to the Securities
Administrator by the Issuer
and required to be executed pursuant to this Section 3.05.
In furtherance of the foregoing,
the Issuer authorizes the filing of Uniform Commercial Code
financing statements
in all appropriate
jurisdictions,
describing the collateral as (i) "all assets of the Debtor" or
words of similar effect,
regardless of whether any particular
asset comprised in the Collateral
falls within the scope of Article 9 of the Uniform
Commercial Code of the appropriate jurisdiction, or (ii) being of
an equal or lesser scope or with greater detail.
Section 3.06.
Opinions as to
Collateral.
On the Closing
Date,
the Issuer shall
furnish to the
Securities
Administrator
and the Indenture
Trustee an Opinion of Counsel to the effect that either,
in the opinion of such counsel,
such
action has been taken with
respect to the
recording
and
filing of this
Indenture,
any
indentures
supplemental
hereto,
and any other requisite
documents,
and with respect to the execution and filing of any financing
statements and
continuation
statements,
as are necessary to make effective the lien and security interest
of this Indenture,
or stating
that, in the opinion of such counsel,
no such action is necessary to make such lien and security
interest
effective.
In
addition to any other
requirements
under the Trust
Indenture Act, the Issuer shall furnish to the Indenture
Trustee and
the
Securities
Administrator,
at least once every two years and six months after the Closing
Date, an Opinion of Counsel
to the effect that
either,
in the opinion of such
counsel,
such
action has been taken with
respect to the
recording,
filing,
refiling,
re-recording and refiling of this Indenture as is necessary to
maintain the lien of this Indenture,
or
stating that, in the opinion of such counsel, no such action is
necessary to maintain such lien.
26
Section 3.07.
Performance
of
Obligations.
(a) The
Issuer
will not take any
action
and will use its best
efforts not to permit any action to be taken by others that would
release
any Person from any of such
Person's
material
covenants
or
obligations
under any
instrument
or
agreement
included in the
Collateral
or that would
result in the
amendment,
hypothecation,
subordination,
termination
or discharge of, or impair the validity or
effectiveness
of, any
such
instrument or agreement,
except as expressly
provided in this Indenture,
the Sale and Servicing
Agreement or such
other instrument or agreement.
(b)
The Issuer may contract with 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 Securities Administrator 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 Securities Administrator and the Depositor
pursuant to the Administration Agreement to assist the
Issuer in performing its duties under this Indenture.
(c)
The Issuer will punctually perform and observe all of its
obligations and agreements contained in this
Indenture, the other Operative Agreements to which it is a party
and in the instruments and agreements included in the
Collateral, including but not limited to filing or causing to be
filed all financing statements and continuation
statements required to be filed by the terms of this Indenture and
the Sale and Servicing Agreement in accordance with
and within the time periods provided for herein and therein and
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 Balance of the
Notes.
(d)
If a responsible officer of the Owner Trustee shall have written
notice or actual knowledge of the
occurrence of an Event of Default under the Sale and Servicing
Agreement, the Issuer shall promptly notify the Indenture
Trustee and the Securities Administrator and each Rating Agency
thereof.
(e)
As promptly as possible after the giving of notice of termination
to the Master Servicer of the Master
Servicer's rights and powers pursuant to Section 7.01 of the Sale
and Servicing Agreement, the Indenture Trustee shall
proceed in accordance with Sections 7.01 and 7.02 of the Sale and
Servicing Agreement
(f)
Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under
this Indenture or the rights of the Indenture Trustee hereunder,
the Issuer agrees (i) that it will not, without the
prior written consent of the Indenture Trustee and the Securities
Administrator or the Holders of at least a majority in
Outstanding Balance or Percentage Interest of the Noteholders
affected thereby, amend, modify, waive, supplement,
27
terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the
terms of any Collateral or the Operative Agreements (except to the
extent otherwise provided in any such Operative
Agreement), or waive timely performance or observance by any of the
Securities Administrator, the Master Servicer or the
Depositor of its respective duties under the Sale and Servicing
Agreement; and (ii) that any such amendment shall not
(A) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, payments that are required to be
made for the benefit of the Noteholders or (B) reduce the aforesaid
percentage of the Notes that is required to consent
to any such amendment, without the consent of the Holders of all
the Outstanding Notes affected thereby.
If any such
amendment, modification, supplement or waiver shall be so consented
to by the Indenture Trustee and the Securities
Administrator or such Holders, the Issuer agrees, promptly
following a request by the Indenture Trustee or the Securities
Administrator to do so, to execute and deliver, in its own name and
at its own expense, such agreements, instruments,
consents and other documents as the Securities Administrator may
deem necessary or appropriate in the circumstances.
Section 3.08.
Negative Covenants.
So long as any Notes are Outstanding, the Issuer shall not:
(i)
except as expressly permitted by this Indenture, the Trust
Agreement, the Purchase and
Servicing Agreement or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of
the properties or as
