omacs320130104x44.htm






  





  











  








EXHIBIT 4.4


 


OPTEUM MORTGAGE ACCEPTANCE CORPORATION MBN TRUST SERIES 20__ - __


 


Issuing Entity


 


AND


 


[Name of Indenture Trustee]


 


INDENTURE TRUSTEE


 


---------------------------------


 


INDENTURE


 


Dated as of _____ __, 20__


 


---------------------------------


 


MORTGAGE-BACKED NOTES


 


-----------------------


 






  





  











  








TABLE OF CONTENTS


 


ARTICLE I


 


Definitions







Section 1.01  Definitions..............................


Section 1.02  Incorporation by Reference of Trust Indenture Act


Section 1.03  Rules of Construction







ARTICLE II


 


Original Issuance of Notes


 


Section 2.01  Form.............


Section 2.02  Execution, Authentication and Delivery


 


ARTICLE III


 


Covenants


 


Section 3.01  Collection of Payments with Respect to the Mortgage Loans


Section 3.02  Maintenance of Office or Agency


Section 3.03  Money for Payments to Be Held in Trust; Paying Agent


Section 3.04  Existence


Section 3.05  Payment of Principal and Interest; Defaulted Interest


Section 3.06  Protection of Trust Estate


Section 3.07  Opinions as to Trust Estate


Section 3.08  Performance of Obligations; Servicing Agreement


Section 3.09  Negative Covenants


Section 3.10  Annual Statement as to Compliance


Section 3.11  Recording of Assignments


Section 3.12  Representations and Warranties Concerning the Mortgage Loans


Section 3.13  Amendments to Servicing Agreement


Section 3.14  Master Servicer as Agent and Bailee of the Mortgage Loans Holder


Section 3.15  Investment Company Act


Section 3.16  Issuing Entity May Consolidate, Etc


Section 3.17  Successor or Transferee


Section 3.18  No Other Business


Section 3.19  No Borrowing


Section 3.20  Guarantees, Loans, Advances and Other Liabilities


Section 3.21  Capital Expenditures


Section 3.22  [Reserved]


Section 3.23  Restricted Payments


Section 3.24  Notice of Events of Default


Section 3.25  Further Instruments and Acts


Section 3.26  Statements to Noteholders


Section 3.27  Determination of Note Interest Rate


Section 3.28  Payments under the Credit Enhancement Instrument


Section 3.29  Replacement Credit Enhancement Instrument


 


ARTICLE IV


 


The Notes; Satisfaction and Discharge of Indenture


 


Section 4.01  The Notes


Section 4.02  Registration of and Limitations on Transfer and Exchange of Notes; Appointment of Certificate Registrar


Section 4.03  Mutilated, Destroyed, Lost or Stolen Notes


Section 4.04  Persons Deemed Owners


Section 4.05  Cancellation


Section 4.06  Book-Entry Notes


Section 4.07  Notices to Depository


Section 4.08  Definitive Notes


Section 4.09  Tax Treatment


Section 4.10  Satisfaction and Discharge of Indenture


Section 4.11  Application of Trust Money


Section 4.12  Subrogation and Cooperation


Section 4.13  Repayment of Monies Held by Paying Agent


Section 4.14  Temporary Notes


 


ARTICLE V


 


Default and Remedies


 


Section 5.01  Events of Default


Section 5.02  Acceleration of Maturity; Rescission and Annulment


Section 5.03  Collection of Indebtedness and Suits for Enforcement by Indenture Trustee


Section 5.04  Remedies; Priorities


Section 5.05  Optional Preservation of the Trust Estate


Section 5.06  Limitation of Suits


Section 5.07  Unconditional Rights of Noteholders to Receive Principal and Interest


Section 5.08  Restoration of Rights and Remedies


Section 5.09  Rights and Remedies Cumulative


Section 5.10  Delay or Omission Not a Waiver


Section 5.11  Control by Noteholders


Section 5.12  Waiver of Past Defaults


Section 5.13  Undertaking for Costs


Section 5.14  Waiver of Stay or Extension Laws


Section 5.15  Sale of Trust Estate


Section 5.16  Action on Notes


Section 5.17  Performance and Enforcement of Certain Obligations


 


ARTICLE VI


 


The Indenture Trustee


 


Section 6.01  Duties of Indenture Trustee


Section 6.02  Rights of Indenture Trustee


Section 6.03  Individual Rights of Indenture Trustee


Section 6.04  Indenture Trustee's Disclaimer


Section 6.05  Notice of Event of Default


Section 6.06  Reports by Indenture Trustee to Holders


Section 6.07  Compensation and Indemnity


Section 6.08  Replacement of Indenture Trustee


Section 6.09  Successor Indenture Trustee by Merger


Section 6.10  Appointment of Co-Indenture Trustee or Separate Indenture Trustee


Section 6.11  Eligibility; Disqualification


Section 6.12  Preferential Collection of Claims Against Issuing Entity


Section 6.13  Representation and Warranty


Section 6.14  Directions to Indenture Trustee


Section 6.15  [No Consent to Certain Acts of Depositor


Section 6.16  Indenture Trustee May Own Securities


 


ARTICLE VII


 


Noteholders' Lists and Reports


 


Section 7.01  Issuing Entity to Furnish Indenture Trustee Names and Addresses of Noteholders


Section 7.02  Preservation of Information; Communications to Noteholders


Section 7.03  Reports by Issuing Entity


Section 7.04  Reports by Indenture Trustee


 


ARTICLE VIII


 


Accounts, Disbursements and Releases


 


Section 8.01  Collection of Money


Section 8.02  Trust Accounts


Section 8.03  Officer's Certificate


Section 8.04  Termination upon Distribution to Noteholders


Section 8.05  Release of Trust Estate


Section 8.06  Surrender of Notes upon Final Payment


 


ARTICLE IX


 


Supplemental Indentures


 


Section 9.01  Supplemental Indentures Without Consent of Noteholders


Section 9.02  Supplemental Indentures with Consent of Noteholders


Section 9.03  Execution of Supplemental Indentures


Section 9.04  Effect of Supplemental Indenture


Section 9.05  Conformity with Trust Indenture Act


Section 9.06  Reference in Notes to Supplemental Indentures


 


ARTICLE X


 


Miscellaneous


 


Section 10.01  Compliance Certificates and Opinions, Etc


Section 10.02  Form of Documents Delivered to Indenture Trustee


Section 10.03  Acts of Noteholders


Section 10.04  Notices, Etc., to Indenture Trustee, Issuing Entity, Credit Enhancer and Rating Agencies


Section 10.05  Notices to Noteholders; Waiver


Section 10.06  Alternate Payment and Notice Provisions


Section 10.07  Conflict with Trust Indenture Act


Section 10.08  Effect of Headings


Section 10.09  Successors and Assigns


Section 10.10  Separability


Section 10.11  Benefits of Indenture


Section 10.12  Legal Holidays


Section 10.13  GOVERNING LAW


Section 10.14  Counterparts


Section 10.15  Recording of Indenture


Section 10.16  Issuing Entity Obligation


Section 10.17  No Petition


Section 10.18  Inspection


Section 10.19  Authority of the Administrator


 


EXHIBITS


 


Exhibit A  --  Form of Notes


 


Exhibit B  --  Form of Back-Up Certification To Form 10-K Certificate


 


Exhibit C  --  Form 10-D, Form 8-K and Form 10-K Reporting Responsibility


 


Appendix A  --  Definitions


 






  





  











  








This Indenture, dated as of _______________, between Opteum Mortgage


Acceptance Corporation MBN Trust Series 20__ -__, a Delaware statutory trust, as


Issuing Entity (the "Issuing Entity"), and ____________________________, a


____________________________, as Indenture Trustee (the "Indenture Trustee"),


 


WITNESSETH THAT:


 


Each party hereto agrees as follows for the benefit of the other party


and for the equal and ratable benefit of the Holders of the Issuing Entity's


Series 20__-_ Mortgage-Backed Notes (the "Notes").


 


GRANTING CLAUSE


 


The Issuing Entity hereby Grants to the Indenture Trustee at the


Closing Date, as trustee for the benefit of the Holders of the Notes, all of the


Issuing Entity's right, title and interest in and to whether now existing or


hereafter created by (a) the Mortgage Loans and the proceeds thereof, (b) all


funds on deposit in the Funding Account, including all income from the


investment and reinvestment of funds therein, (c) all funds on deposit from time


to time in the Collection Account allocable to the Mortgage Loans excluding any


investment income from such funds; (d) all funds on deposit from time to time in


the Payment Account and in all proceeds thereof; (e) the Policy and (f) all


present and future claims, demands, causes and chooses in action in respect of


any or all of the foregoing and all payments on or under, and all proceeds of


every kind and nature whatsoever in respect of, any or all of the foregoing and


all payments on or under, and all proceeds of every kind and nature whatsoever


in the conversion thereof, voluntary or involuntary, into cash or other liquid


property, all cash proceeds, accounts, accounts receivable, notes, drafts,


acceptances, checks, deposit accounts, rights to payment of any and every kind,


and other forms of obligations and receivables, instruments and other property


which at any time constitute all or part of or are included in the proceeds of


any of the foregoing (collectively, the "Trust Estate" or the "Collateral").


 


The foregoing Grant is made in trust to secure the payment of principal


of and interest on, and any other amounts owing in respect of, the Notes,


equally and ratably without prejudice, priority or distinction, and to secure


compliance with the provisions of this Indenture, all as provided in this


Indenture.


 


The Indenture Trustee, as trustee on behalf of the Holders of the


Notes, acknowledges such Grant, accepts the trust under this Indenture in


accordance with the provisions hereof and agrees to perform its duties as


Indenture Trustee as required herein.


 


ARTICLE I


 


Definitions


 


Section 1.01 DEFINITIONS. For all purposes of this Indenture, except as


otherwise expressly provided herein or unless the context otherwise requires,


capitalized terms not otherwise defined herein shall have the meanings assigned


to such terms in the Definitions attached hereto as Appendix A which is


incorporated by reference herein. All other capitalized terms used herein shall


have the meanings specified herein.


 


Section 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.


Whenever this Indenture refers to a provision of the Trust Indenture Act (the


"TIA"), the provision is incorporated by reference in and made a part of this


Indenture. The following TIA terms used in this Indenture have the following


meanings:


 


"Commission" means the Securities and Exchange Commission.


 


"indenture securities" means the Notes.


 


"indenture security holder" means a Noteholder.


 


"indenture to be qualified" means this Indenture.


 


"indenture trustee" or "institutional trustee" means the Indenture


Trustee.


 


"obligor" on the indenture securities means the Issuing Entity and any


other obligor on the indenture securities.


 


All other TIA terms used in this Indenture that are defined by the TIA,


defined by TIA reference to another statute or defined by Commission rule have


the meaning assigned to them by such definitions.


 


Section 1.03 RULES OF CONSTRUCTION. Unless the context otherwise


requires:


 


(i) a term has the meaning assigned to it;


 


(ii) an accounting term not otherwise defined has the meaning


assigned to it in accordance with generally accepted accounting


principles as in effect from time to time;


 


(iii) "or" is not exclusive;


 


(iv) "including" means including without limitation;


 


(v) words in the singular include the plural and words in the


plural include the singular; and


 


(vi) any agreement, instrument or statute defined or referred


to herein or in any instrument or certificate delivered in connection


herewith means such agreement, instrument or statute as from time to


time amended, modified or supplemented and includes (in the case of


agreements or instruments) references to all attachments thereto and


instruments incorporated therein; references to a Person are also to


its permitted successors and assigns.


 


ARTICLE II


 


Original Issuance of Notes


 


Section 2.01 FORM. The Notes, together with the Indenture Trustee's


certificate of authentication, shall be in substantially the form set forth in


Exhibit A, with such appropriate insertions, omissions, substitutions and other


variations as are required or permitted by this Indenture and may have such


letters, numbers or other marks of identification and such legends or


endorsements placed thereon as may, consistently herewith, be determined by the


officers executing such Notes, as evidenced by their execution of the Notes. Any


portion of the text of any Note may be set forth on the reverse thereof, with an


appropriate reference thereto on the face of the Note.


 


The Notes shall be typewritten, printed, lithographed or engraved or


produced by any combination of these methods (with or without steel engraved


borders), all as determined by the Authorized Officers executing such Notes, as


evidenced by their execution of such Notes.


 


The terms of the Notes set forth in Exhibit A are part of the terms of


this Indenture.


 


Section 2.02 EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be


executed on behalf of the Issuing Entity by any of its Authorized Officers. The


signature of any such Authorized Officer on the Notes may be manual or


facsimile.


 


Notes bearing the manual or facsimile signature of individuals who were


at any time Authorized Officers of the Issuing Entity shall bind the Issuing


Entity, notwithstanding that such individuals or any of them have ceased to hold


such offices prior to the authentication and delivery of such Notes or did not


hold such offices at the date of such Notes.


 


The Indenture Trustee shall upon Issuer Request authenticate and


deliver Notes for original issue in an aggregate initial principal amount of


$___________.


 


Each Note shall be dated the date of its authentication. The Notes


shall be issuable as registered Notes and the Notes shall be issuable in the


minimum initial Security Balances of $100,000 and in integral multiples of


$1,000 in excess thereof.


 


No Note shall be entitled to any benefit under this Indenture or be


valid or obligatory for any purpose, unless there appears on such Note a


certificate of authentication substantially in the form provided for herein


executed by the Indenture Trustee by the manual signature of one of its


authorized signatories, and such certificate upon any Note shall be conclusive


evidence, and the only evidence, that such Note has been duly authenticated and


delivered hereunder.


 


ARTICLE III


 


Covenants


 


Section 3.01 COLLECTION OF PAYMENTS WITH RESPECT TO THE MORTGAGE LOANS.


The Indenture Trustee shall establish and maintain with itself a trust account


(the "Payment Account") in which the Indenture Trustee shall, subject to the


terms of this paragraph, deposit, on the same day as it is received from the


Master Servicer, each remittance received by the Indenture Trustee with respect


to the Mortgage Loans. The Indenture Trustee shall make all payments of


principal of and interest on the Notes, subject to Section 3.03 as provided in


Section 3.05 herein from monies on deposit in the Payment Account.


 


Section 3.02 MAINTENANCE OF OFFICE OR AGENCY. The Issuing Entity will


maintain in the [Borough of Manhattan, The City of New York,] an office or


agency where, subject to satisfaction of conditions set forth herein, Notes may


be surrendered for registration of transfer or exchange, and where notices and


demands to or upon the Issuing Entity in respect of the Notes and this Indenture


may be served. The Issuing Entity hereby initially appoints the Indenture


Trustee to serve as its agent for the foregoing purposes. If at any time the


Issuing Entity shall fail to maintain any such office or agency or shall fail to


furnish the Indenture Trustee with the address thereof, such surrenders, notices


and demands may be made or served at the Corporate Trust Office, and the Issuing


Entity hereby appoints the Indenture Trustee as its agent to receive all such


surrenders, notices and demands.


 


Section 3.03 MONEY FOR PAYMENTS TO BE HELD IN TRUST; PAYING AGENT. (a)


As provided in Section 3.01, all payments of amounts due and payable with


respect to any Notes that are to be made from amounts withdrawn from the Payment


Account pursuant to Section 3.01 shall be made on behalf of the Issuing Entity


by the Indenture Trustee or by the Paying Agent, and no amounts so withdrawn


from the Payment Account for payments of Notes shall be paid over to the Issuing


Entity except as provided in this Section 3.03.


 


The Issuing Entity will cause each Paying Agent other than the


Indenture Trustee to execute and deliver to the Indenture Trustee an instrument


in which such Paying Agent shall agree with the Indenture Trustee (and if the


Indenture Trustee acts as Paying Agent it hereby so agrees), subject to the


provisions of this Section 3.03, that such Paying Agent will:


 


(i) hold all sums held by it for the payment of amounts due


with respect to the Notes in trust for the benefit of the Persons


entitled thereto until such sums shall be paid to such Persons or


otherwise disposed of as herein provided and pay such sums to such


Persons as herein provided;


 


(ii) give the Indenture Trustee notice of any default by the


Issuing Entity of which it has actual knowledge in the making of any


payment required to be made with respect to the Notes;


 


(iii) at any time during the continuance of any such default,


upon the written request of the Indenture Trustee, forthwith pay to the


Indenture Trustee all sums so held in trust by such Paying Agent;


 


(iv) immediately resign as Paying Agent and forthwith pay to


the Indenture Trustee all sums held by it in trust for the payment of


Notes if at any time it ceases to meet the standards required to be met


by a Paying Agent at the time of its appointment; and


 


(v) comply with all requirements of the Code with respect to


the withholding from any payments made by it on any Notes of any


applicable withholding taxes imposed thereon and with respect to any


applicable reporting requirements in connection therewith.


 


The Issuing Entity may at any time, for the purpose of obtaining the


satisfaction and discharge of this Indenture or for any other purpose, by Issuer


Request direct any Paying Agent to pay to the Indenture Trustee all sums held in


trust by such Paying Agent, such sums to be held by the Indenture Trustee upon


the same trusts as those upon which the sums were held by such Paying Agent; and


upon such payment by any Paying Agent to the Indenture Trustee, such Paying


Agent shall be released from all further liability with respect to such money.


 


Subject to applicable laws with respect to escheat of funds, any money


held by the Indenture Trustee or any Paying Agent in trust for the payment of


any amount due with respect to any Note and remaining unclaimed for one year


after such amount has become due and payable shall be discharged from such trust


and be paid to the Issuing Entity on Issuer Request; and the Holder of such Note


shall thereafter, as an unsecured general creditor, look only to the Issuing


Entity for payment thereof (but only to the extent of the amounts so paid to the


Issuing Entity), and all liability of the Indenture Trustee or such Paying Agent


with respect to such trust money shall thereupon cease; provided, however, that


the Indenture Trustee or such Paying Agent, before being required to make any


such repayment, shall at the expense and direction of the Issuing Entity cause


to be published once, in an Authorized Newspaper published in the English


language, notice that such money remains unclaimed and that, after a date


specified therein, which shall not be less than 30 days from the date of such


publication, any unclaimed balance of such money then remaining will be repaid


to the Issuing Entity. The Indenture Trustee may also adopt and employ, at the


expense and direction of the Issuing Entity, any other reasonable means of


notification of such repayment (including, but not limited to, mailing notice of


such repayment to Holders whose Notes have been called but have not been


surrendered for redemption or whose right to or interest in monies due and


payable but not claimed is determinable from the records of the Indenture


Trustee or of any Paying Agent, at the last address of record for each such


Holder).


 


Section 3.04 EXISTENCE. The Issuing Entity 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 Issuing Entity hereunder


is or becomes, organized under the laws of any other state or of the United


States of America, in which case the Issuing Entity will keep in full effect its


existence, rights and franchises under the laws of such other jurisdiction) and


will obtain and preserve its qualification to do business in each jurisdiction


in which such qualification is or shall be necessary to protect the validity and


enforceability of this Indenture, the Notes, the Mortgage Loans and each other


instrument or agreement included in the Trust Estate.


 


Section 3.05 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST. (a)


On each Payment Date from amounts on deposit in the Payment Account after making


(x) any deposit to the Funding Account pursuant to Section 8.02(b) and (y) any


deposits to the Payment Account pursuant to Section 8.02(c)(ii) and Section


8.02(c)(i)(2), the Indenture Trustee shall pay to the Noteholders, the


Certificate Paying Agent, on behalf of the Certificateholders, and to other


Persons the amounts to which they are entitled as set forth below:


 


(i) to the Noteholders the sum of (a) one month's interest at


the Note Interest Rate on the Security Balances of Notes immediately


prior to such Payment Date and (b) any previously accrued and unpaid


interest for prior Payment Dates;


 


(ii) if such Payment Date is after the Funding Period, to the


Noteholders, as principal on the Notes, the applicable Security


Percentage of the Principal Collection Distribution Amount and if such


Payment Date is the first Payment Date following the end of the Funding


Period (if ending due to an Amortization Event) or the Payment Date on


which the Funding Period ends, to the Noteholders as principal on the


Notes the applicable Security Percentage of the amount deposited from


the Funding Account in respect of Security Principal Collections;


 


(iii) to the Noteholders, as principal on the Notes, from the


amount remaining on deposit in the Payment Account, up to the


applicable Security Percentage of Liquidation Loss Amounts for the


related Collection Period;


 


(iv) to the Noteholders, as principal on the Notes, from the


amount remaining on deposit in the Payment Account, up to the


applicable Security Percentage of Carryover Loss Amounts;


 


(v) to the Credit Enhancer, in the amount of the premium for


the Credit Enhancement Instrument and for any Additional Credit


Enhancement Instrument;


 


(vi) to the Credit Enhancer, to reimburse it for prior draws


made on the Credit Enhancement Instrument and on any Additional Credit


Enhancement Instrument (with interest thereon as provided in the


Insurance Agreement);


 


(vii) to the Noteholders, as principal on the Notes based on


the Security Balances from Security Interest Collections, up to the


Special Capital Distribution Amount for such Payment Date;


 


(viii) to the Credit Enhancer, any other amounts owed to the


Credit Enhancer pursuant to the Insurance Agreement;


 


(ix) [Reserved];


 


(x) to reimburse the Administrator for expenditures made on


behalf of the Issuing Entity with respect to the performance of its


duties under the Indenture; and


 


(xi) any remaining amount, to the Certificate Paying Agent, on


behalf of the Certificates.


 


provided, however, in the event that on a Payment Date a Credit Enhancer Default


shall have occurred and be continuing then the priorities of distributions


described above will be adjusted such that payments of the Certificate


Distribution Amount and all other amounts to be paid to the Certificate Paying


Agent will not be paid until the full amount of interest and principal in


accordance with clauses (i), (x) and (ii) through (iv) above that are due on the


Notes on such Payment Date have been paid and provided, further, that on the


Final Scheduled Payment Date or other final Payment Date, the amount to be paid


pursuant to clause (ii) above shall be equal to the Security Balances of the


Securities immediately prior to such Payment Date.


 


On each Payment Date, the Certificate Paying Agent shall deposit in the


Certificate Distribution Account all amounts it received pursuant to this


Section 3.05 for the purpose of distributing such funds to the


Certificateholders.


 


The amounts paid to Noteholders shall be paid to each Class in


accordance with the Class Percentage as set forth in paragraph (b) below.


Interest will accrue on the Notes during an Interest Period on the basis of the


actual number of days in such Interest Period and a year assumed to consist of


360 days.


 


[Any installment of interest or principal, if any, payable on any Note


or Certificate that is punctually paid or duly provided for by the Issuing


Entity on the applicable Payment Date shall, if such Holder holds Notes or


Certificates of an aggregate initial Principal Balance of at least $1,000,000,


be paid to each Holder of record on the preceding Record Date, by wire transfer


to an account specified in writing by such Holder reasonably satisfactory to the


Indenture Trustee as of the preceding Record Date or in all other cases or if no


such instructions have been delivered to the Indenture Trustee, by check to such


Noteholder mailed to such Holder's address as it appears in the Note Register


the amount required to be distributed to such Holder on such Payment Date


pursuant to such Holder's Securities; provided, however, that the Indenture


Trustee shall not pay to such Holders any amount required to be withheld from a


payment to such Holder by the Code.]


 


(b) The principal of each Note shall be due and payable in full on the


Final Scheduled Payment Date for such Note as provided in the form of Note set


forth in Exhibit A. All principal payments on each Class of Notes shall be made


to the Noteholders of such Class entitled thereto in accordance with the


Percentage Interests represented by such Notes. Upon notice to the Indenture


Trustee by the Issuing Entity, the Indenture Trustee shall notify the Person in


whose name a Note is registered at the close of business on the Record Date


preceding the Final Scheduled Payment Date or other final Payment Date. Such


notice shall be mailed no later than five Business Days prior to such Final


Scheduled Payment Date or other final Payment Date and shall specify that


payment of the principal amount and any interest due with respect to such Note


at the Final Scheduled Payment Date or other final Payment Date will be payable


only upon presentation and surrender of such Note and shall specify the place


where such Note may be presented and surrendered for such final payment.


 


Section 3.06 PROTECTION OF TRUST ESTATE. (a) The Issuing Entity will


from time to time execute and deliver all such supplements and amendments hereto


and all such financing statements, continuation statements, instruments of


further assurance and other instruments, and will take such other action


necessary or advisable to:


 


(i) maintain or preserve the lien and security interest (and


the priority thereof) of this Indenture or carry out more effectively


the purposes hereof;


 


(ii) perfect, publish notice of or protect the validity of any


Grant made or to be made by this Indenture;


 


(iii) cause the Issuing Entity to enforce any of the Mortgage


Loans; or


 


(iv) preserve and defend title to the Trust Estate and the


rights of the Indenture Trustee and the Noteholders in such Trust


Estate against the claims of all persons and parties.


 


(b) Except as otherwise provided in this Indenture, the Indenture


Trustee shall not remove any portion of the Trust Estate that consists of money


or is evidenced by an instrument, certificate or other writing from the


jurisdiction in which it was held at the date of the most recent Opinion of


Counsel delivered pursuant to Section 3.07 (or from the jurisdiction in which it


was held as described in the Opinion of Counsel delivered at the Closing Date


pursuant to Section 3.07(a), if no Opinion of Counsel has yet been delivered


pursuant to Section 3.07(b) unless the Trustee shall have first received an


Opinion of Counsel to the effect that the lien and security interest created by


this Indenture with respect to such property will continue to be maintained


after giving effect to such action or actions.


 


The Issuing Entity hereby designates the Indenture Trustee its agent


and attorney-in-fact to execute any financing statement, continuation statement


or other instrument required to be executed pursuant to this Section 3.06.


 


Section 3.07 OPINIONS AS TO TRUST ESTATE. (a) On the Closing Date, the


Issuing Entity shall furnish to the Indenture Trustee and the Owner Trustee an


Opinion of Counsel either stating that, in the opinion of such counsel, such


action has been taken with respect to the recording and filing of this


Indenture, any indentures supplemental hereto, and any other requisite


documents, and with respect to the execution and filing of any financing


statements and continuation statements, as are necessary to perfect and make


effective the lien and security interest in the Mortgage Loans and reciting the


details of such action, or stating that, in the opinion of such counsel, no such


action is necessary to make such lien and security interest effective.


 


(b) On or before ___________ in each calendar year, beginning in ____,


the Issuing Entity shall furnish to the Indenture Trustee an Opinion of Counsel


at the expense of the Issuing Entity either stating that, in the opinion of such


counsel, such action has been taken with respect to the recording, filing,


re-recording and refiling of this Indenture, any indentures supplemental hereto


and any other requisite documents and with respect to the execution and filing


of any financing statements and continuation statements as is necessary to


maintain the lien and security interest in the Mortgage Loans and reciting the


details of such action or stating that in the opinion of such counsel no such


action is necessary to maintain such lien and security interest. Such Opinion of


Counsel shall also describe the recording, filing, re-recording and refiling of


this Indenture, any indentures supplemental hereto and any other requisite


documents and the execution and filing of any financing statements and


continuation statements that will, in the opinion of such counsel, be required


to maintain the lien and security interest in the Mortgage Loans until December


31 in the following calendar year.


 


Section 3.08 PERFORMANCE OF OBLIGATIONS; SERVICING AGREEMENT. (a) The


Issuing Entity will punctually perform and observe all of its obligations and


agreements contained in this Indenture, the Basic Documents and in the


instruments and agreements included in the Trust Estate.


 


(b) The Issuing Entity may contract with other Persons to assist it in


performing its duties under this Indenture, and any performance of such duties


by a Person identified to the Indenture Trustee in an Officer's Certificate of


the Issuing Entity shall be deemed to be action taken by the Issuing Entity.


Initially, the Issuing Entity has contracted with the Administrator to assist


the Issuing Entity in performing its duties under this Indenture.


 


(c) The Issuing Entity will not take any action or permit any action to


be taken by others which would release any Person from any of such Person's


covenants or obligations under any of the documents relating to the Mortgage


Loans or under any instrument included in the Trust Estate, or which would


result in the amendment, hypothecation, subordination, termination or discharge


of, or impair the validity or effectiveness of, any of the documents relating to


the Mortgage Loans or any such instrument, except such actions as the Master


Servicer is expressly permitted to take in the Servicing Agreement. The


Indenture Trustee, as pledgee of the Mortgage Loans, shall be able to exercise


the rights Issuing Entity and the Mortgage Loans holder, to direct the actions


of the Master Servicer.


 


(d) The Issuing Entity shall at all times retain an Administrator


(approved by the Credit Enhancer under the Administration Agreement) and may


enter into contracts with other Persons for the performance of the Issuing


Entity's obligations hereunder, and performance of such obligations by such


Persons shall be deemed to be performance of such obligations by the Issuing


Entity.


 


Section 3.09 NEGATIVE COVENANTS. So long as any Notes are Outstanding,


the Issuing Entity shall not:


 


(i) except as expressly permitted by this Indenture, sell,


transfer, exchange or otherwise dispose of the Trust Estate, unless


directed to do so by the Indenture Trustee;


 


(ii) claim any credit on, or make any deduction from the


principal or interest payable in respect of, the Notes (other than


amounts properly withheld from such payments under the Code) or assert


any claim against any present or former Noteholder by reason of the


payment of the taxes levied or assessed upon any part of the Trust


Estate;


 


(iii) (A) permit the validity or effectiveness of this


Indenture to be impaired, or permit the lien of this Indenture to be


amended, hypothecated, subordinated, terminated or discharged, or


permit any Person to be released from any covenants or obligations with


respect to the Notes under this Indenture except as may be expressly


permitted hereby, (B) permit any lien, charge, excise, claim, security


interest, mortgage or other encumbrance (other than the lien of this


Indenture) to be created on or extend to or other wise arise upon or


burden the Trust Estate or any part thereof or any interest therein or


the proceeds thereof or (C) permit the lien of this Indenture not to


constitute a valid first priority security interest in the Trust


Estate; or


 


(iv) waive or impair, or fail to assert rights under, the


Mortgage Loans, or impair or cause to be impaired the Company's or the


Issuing Entity's interest in the Mortgage Loans, the Mortgage Loan


Purchase Agreement or in any Basic Document, if any such action would


materially and adversely affect the interests of the Noteholders.


 


Section 3.10 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuing Entity will


deliver to the Indenture Trustee, within 120 days after the end of each fiscal


year of the Issuing Entity (commencing with the fiscal year ____), an Officer's


Certificate stating, as to the Authorized Officer signing such Officer's


Certificate, that:


 


(i) a review of the activities of the Issuing Entity during


such year and of its performance under this Indenture has been made


under such Authorized Officer's supervision; and


 


(ii) to the best of such Authorized Officer's knowledge, based


on such review, the Issuing Entity has complied with all conditions and


covenants under this Indenture throughout such year, or, if there has


been a default in its compliance with any such condition or covenant,


specifying each such default known to such Authorized Officer and the


nature and status thereof.


 


Section 3.11 RECORDING OF ASSIGNMENTS. The Company shall cause the to


exercise its right under the Mortgage Loan Purchase Agreement with respect to


the obligation of the Seller to submit or cause to be submitted for recording


all Assignments of Mortgages on or prior to ______________ with respect to the


Initial Loans and within 60 days following the related Deposit Date with respect


to any Additional Loans.


 


Section 3.12 REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE


LOANS. The Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit


of the representations and warranties made by the Seller in Section [____] and


Section [____] of the Mortgage Loan Purchase Agreement concerning the Mortgage


Loans and the right to enforce the remedies against the Seller provided in such


Section [____] or Section [____] to the same extent as though such


representations and warranties were made directly to the Indenture Trustee.


 


Section 3.13 AMENDMENTS TO SERVICING AGREEMENT. The Issuing Entity


covenants with the Indenture Trustee that it will not enter into any amendment


or supplement to the Servicing Agreement in accordance with Section 8.01 of the


Servicing Agreement without the prior written consent of the Indenture Trustee.


The Indenture Trustee, as pledgee of the Mortgage Loans, may, in its discretion,


decline to enter into or consent to any such supplement or amendment if its own


rights, duties or immunities shall be adversely affected.


 


Section 3.14 MASTER SERVICER AS AGENT AND BAILEE OF THE MORTGAGE LOANS


HOLDER. Solely for purposes of perfection under Section 9-305 of the Uniform


Commercial Code or other similar applicable law, rule or regulation of the state


in which such property is held by the Master Servicer, the Indenture Trustee


hereby acknowledges that the Master Servicer is acting as agent and bailee of


the Mortgage Loans holder in holding amounts on deposit in the Collection


Account pursuant to Section 3.02 of the Servicing Agreement, as well as its


agent and bailee in holding any Related Documents released to the Master


Servicer pursuant to Section 3.06(c) of the Servicing Agreement, and any other


items constituting a part of the Trust Estate which from time to time come into


the possession of the Master Servicer. It is intended that, by the Master


Servicer's acceptance of such agency pursuant to Section 3.02 of the Servicing


Agreement, the Trustee, as a secured party of the Mortgage Loans, will be deemed


to have possession of such Related Documents, such monies and such other items


for purposes of Section 9-305 of the Uniform Commercial Code of the state in


which such property is held by the Master Servicer.


 


Section 3.15 INVESTMENT COMPANY ACT. The Issuing Entity shall not


become an "investment company" or under the "control" of an "investment company"


as such terms are defined in the Investment Company Act of 1940, as amended (or


any successor or amendatory statute), and the rules and regulations thereunder


(taking into account not only the general definition of the term "investment


company" but also any available exceptions to such general definition);


provided, however, that the Issuing Entity shall be in compliance with this


Section 3.15 if it shall have obtained an order exempting it from regulation as


an "investment company" so long as it is in compliance with the conditions


imposed in such order.


 


Section 3.16 ISSUING ENTITY MAY CONSOLIDATE, ETC. (a) The Issuing


Entity shall not consolidate or merge with or into any other Person, unless:


 


(i) the Person (if other than the Issuing Entity) formed by or


surviving such consolidation or merger shall be a Person organized and


existing under the laws of the United States of America or any state or


the District of Columbia and shall expressly assume, by an indenture


supplemental hereto, executed and delivered to the Indenture Trustee,


in form reasonably satisfactory to the Indenture Trustee, the due and


punctual payment of the principal of and interest on all Notes and to


the Certificate Paying Agent, on behalf of the Certificateholders and


the performance or observance of every agreement and covenant of this


Indenture on the part of the Issuing Entity to be performed or


observed, all as provided herein;


 


(ii) immediately after giving effect to such transaction, no


Event of Default shall have occurred and be continuing;


 


(iii) the Rating Agencies shall have notified the Issuing


Entity that such transaction shall not cause the rating of the Notes


[or the Certificates] to be reduced, suspended or withdrawn or to be


considered by either Rating Agency to be below investment grade without


taking into account the Credit Enhancement Instrument;


 


(iv) the Issuing Entity shall have received an Opinion of


Counsel (and shall have delivered copies thereof to the Indenture


Trustee) to the effect that such transaction will not have any material


adverse tax consequence to the Issuing Entity, any Noteholder or any


Certificateholder;


 


(v) any action that is necessary to maintain the lien and


security interest created by this Indenture shall have been taken; and


 


(vi) the Issuing Entity shall have delivered to the Indenture


Trustee an Officer's Certificate and an Opinion of Counsel each stating


that such consolidation or merger and such supplemental indenture


comply with this Article III and that all conditions precedent herein


provided for relating to such transaction have been complied with


(including any filing required by the Exchange Act).


 


(b) The Issuing Entity shall not convey or transfer any of its


properties or assets, including those included in the Trust Estate, to any


Person, unless:


 


(i) the Person that acquires by conveyance or transfer the


properties and assets of the Issuing Entity the conveyance or transfer


of which is hereby restricted shall (A) be a United States citizen or a


Person organized and existing under the laws of the United States of


America or any state, (B) expressly assumes, by an indenture


supplemental hereto, executed and delivered to the Indenture Trustee,


in form satisfactory to the Indenture Trustee, the due and punctual


payment of the principal of and interest on all Notes and the


performance or observance of every agreement and covenant of this


Indenture on the part of the Issuing Entity to be performed or


observed, all as provided herein, (C) expressly agrees by means of such


supplemental indenture that all right, title and interest so conveyed


or transferred shall be subject and subordinate to the rights of


Holders of the Notes, (D) unless otherwise provided in such


supplemental indenture, expressly agrees to indemnify, defend and hold


harmless the Issuing Entity against and from any loss, liability or


expense arising under or related to this Indenture and the Notes and


(E) expressly agrees by means of such supplemental indenture that such


Person (or if a group of Persons, then one specified Person) shall make


all filings with the Commission (and any other appropriate Person)


required by the Exchange Act in connection with the Notes;


 


(ii) immediately after giving effect to such transaction, no


Default or Event of Default shall have occurred and be continuing;


 


(iii) the Rating Agencies shall have notified the Issuing


Entity that such transaction shall not cause the rating of the Notes or


the Certificates to be reduced, suspended or withdrawn;


 


(iv) the Issuing Entity shall have received an Opinion of


Counsel (and shall have delivered copies thereof to the Indenture


Trustee) to the effect that such transaction will not have any material


adverse tax consequence to the Issuing Entity or any Noteholder;


 


(v) any action that is necessary to maintain the lien and


security interest created by this Indenture shall have been taken; and


 


(vi) the Issuing Entity shall have delivered to the Indenture


Trustee an Officer's Certificate and an Opinion of Counsel each stating


that such conveyance or transfer and such supplemental indenture comply


with this Article III and that all conditions precedent herein provided


for relating to such transaction have been complied with (including any


filing required by the Exchange Act).


 


Section 3.17 SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or


merger of the Issuing Entity in accordance with Section 3.16(a), the Person


formed by or surviving such consolidation or merger (if other than the Issuing


Entity) shall succeed to, and be substituted for, and may exercise every right


and power of, the Issuing Entity under this Indenture with the same effect as if


such Person had been named as the Issuing Entity herein.


 


(b) Upon a conveyance or transfer of all the assets and properties of


the Issuing Entity pursuant to Section 3.16(b), the Issuing Entity will be


released from every covenant and agreement of this Indenture to be observed or


performed on the part of the Issuing Entity with respect to the Notes


immediately upon the delivery of written notice to the Indenture Trustee of such


conveyance or transfer.


 


Section 3.18 NO OTHER BUSINESS. The Issuing Entity shall not engage in


any business other than financing, purchasing, owning and selling and managing


the Mortgage Loans and the issuance of the Notes and Certificates in the manner


contemplated by this Indenture and the Basic Documents and all activities


incidental thereto.


 


Section 3.19 NO BORROWING. The Issuing Entity shall not issue, incur,


assume, guarantee or otherwise become liable, directly or indirectly, for any


indebtedness except for the Notes.


 


Section 3.20 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except


as contemplated by this Indenture or the Basic Documents, the Issuing Entity


shall not make any loan or advance or credit to, or guarantee (directly or


indirectly or by an instrument having the effect of assuring another's payment


or performance on any obligation or capability of so doing or otherwise),


endorse or otherwise become contingently liable, directly or indirectly, in


connection with the obligations, stocks or dividends of, or own, purchase,


repurchase or acquire (or agree contingently to do so) any stock, obligations,


assets or securities of, or any other interest in, or make any capital


contribution to, any other Person.


 


Section 3.21 CAPITAL EXPENDITURES. The Issuing Entity shall not make


any expenditure (by long- term or operating lease or otherwise) for capital


assets (either realty or personalty).


 


Section 3.22 [Reserved]


 


Section 3.23 RESTRICTED PAYMENTS. The Issuing Entity shall not,


directly or indirectly, (i) pay any dividend or make any distribution (by


reduction of capital or otherwise), whether in cash, property, securities or a


combination thereof, to the Owner Trustee or any owner of a beneficial interest


in the Issuing Entity or otherwise with respect to any ownership or equity


interest or security in or of the Issuing Entity, (ii) redeem, purchase, retire


or otherwise acquire for value any such ownership or equity interest or security


or (iii) set aside or otherwise segregate any amounts for any such purpose;


provided, however, that the Issuing Entity may make, or cause to be made, (x)


distributions to the Owner Trustee and the Certificateholders as contemplated


by, and to the extent funds are available for such purpose under the Trust


Agreement, (y) payments to the Master Servicer pursuant to the terms of the


Servicing Agreement and (z) payments to the Indenture Trustee pursuant to


Section 1(a)(ii) of the Administration Agreement. The Issuing Entity will not,


directly or indirectly, make payments to or distributions from the Collection


Account except in accordance with this Indenture and the Basic Documents.


 


Section 3.24 NOTICE OF EVENTS OF DEFAULT. The Issuing Entity shall give


the Indenture Trustee the Credit Enhancer and the Rating Agencies prompt written


notice of each Event of Default hereunder and under the Trust Agreement.


 


Section 3.25 FURTHER INSTRUMENTS AND ACTS. Upon request of the


Indenture Trustee, the Issuing Entity will execute and deliver such further


instruments and do such further acts as may be reasonably necessary or proper to


carry out more effectively the purpose of this Indenture.


 


Section 3.26 STATEMENTS TO NOTEHOLDERS. The Indenture Trustee and the


Certificate Registrar shall forward by mail to each Noteholder and


Certificateholder, respectively, the Statement delivered to it pursuant to


Section 4.01 of the Servicing Agreement.


 


Section 3.27 DETERMINATION OF NOTE INTEREST RATE. On the second LIBOR


Business Day immediately preceding (i) the Closing Date in the case of the first


Interest Period and (ii) the first day of each succeeding Interest Period, the


Indenture Trustee shall determine LIBOR and the Note Interest Rate for such


Interest Period and shall inform the Issuing Entity, the Master Servicer and the


Depositor at their respective facsimile numbers given to the Indenture Trustee


in writing thereof.


 


Section 3.28 PAYMENTS UNDER THE CREDIT ENHANCEMENT INSTRUMENT. (a) On


any Payment Date, other than a Dissolution Payment Date, the Indenture Trustee


on behalf of the Noteholders, and in its capacity as Certificate Paying Agent on


behalf of the Certificateholders shall make a draw on the Credit Enhancement


Instrument in an amount if any equal to the sum of (x) the amount by which the


interest accrued at the Note Interest Rate on the Security Balance of the Notes


exceeds the amount on deposit in the Payment Account available to be distributed


therefor on such Payment Date and (y) the Guaranteed Principal Payment Amount


(the "Credit Enhancement Draw Amount").


 


(b) The Indenture Trustee shall submit, if a Credit Enhancement Draw


Amount is specified in any Statement to Holders prepared by the Master Servicer


pursuant to Section 4.01 of the Servicing Agreement, the Notice for Payment (as


defined in the Credit Enhancement Instrument) in the amount of the Credit


Enhancement Draw Amount to the Credit Enhancer no later than 2:00 P.M., New York


City time, on the second Business Day prior to the applicable Payment Date. Upon


receipt of such Credit Enhancement Draw Amount in accordance with the terms of


the Credit Enhancement Instrument, the Indenture Trustee shall deposit such


Credit Enhancement Draw Amount in the Payment Account for distribution to


Holders (and the Certificate Paying Agent on behalf of the Certificates)


pursuant to Section 3.05.


 


In addition, a draw may be made under the Credit Enhancement Instrument


in respect of any Avoided Payment (as defined in and pursuant to the terms and


conditions of the Credit Enhancement Instrument) and the Indenture Trustee shall


submit a Notice for Payment with respect thereto together with the other


documents required to be delivered to the Credit Enhancer pursuant to the Credit


Enhancement Instrument in connection with a draw in respect of any Avoided


Payment.


 


(c) In the event that any Additional Credit Enhancement Instruments are


issued pursuant to Section 4.01 and Section 2.02(B) of the Insurance Agreement,


the Indenture Trustee shall be authorized to make draws thereon subject to the


terms and conditions therein.


 


Section 3.29 REPLACEMENT CREDIT ENHANCEMENT INSTRUMENT. In the event of


a Credit Enhancer Default or if the claims paying ability rating of the Credit


Enhancer is downgraded and such downgrade results in a downgrading of the then


current rating of the Securities (in each case, a "Replacement Event"), the


Issuing Entity, at its expense, in accordance with and upon satisfaction of the


conditions set forth in the Credit Enhancement Instrument, including, without


limitation, payment in full of all amounts owed to the Credit Enhancer, may, but


shall not be required to, substitute a new surety bond or surety bonds for the


existing Credit Enhancement Instrument or may arrange for any other form of


credit enhancement; provided, however, that in each case the Notes shall be


rated no lower than the rating assigned by each Rating Agency to the Notes


immediately prior to such Replacement Event and the timing and mechanism for


drawing on such new credit enhancement shall be reasonably acceptable to the


Indenture Trustee and provided further that the premiums under the proposed


credit enhancement shall not exceed such premiums under the existing Credit


Enhancement Instrument. It shall be a condition to substitution of any new


credit enhancement that there be delivered to the Indenture Trustee (i) an


Opinion of Counsel, acceptable in form to the Indenture Trustee, from counsel to


the provider of such new credit enhancement with respect to the enforceability


thereof and such other matters as the Indenture Trustee may require and (ii) an


Opinion of Counsel to the effect that such substitution would not (a) adversely


affect in any material respect the tax status of the Notes or (b) cause the


Issuing Entity to be subject to a tax at the entity level. Upon receipt of the


items referred to above and payment of all amounts owing to the Credit Enhancer


and the taking of physical possession of the new credit enhancement, the


Indenture Trustee shall, within five Business Days following receipt of such


items and such taking of physical possession, deliver the replaced Credit


Enhancement Instrument to the Credit Enhancer. In the event of any such


replacement the Issuing Entity shall give written notice thereof to the Rating


Agencies.


 


Section 3.30 RULE 17g-5 COMPLIANCE. The Indenture Trustee hereby agrees that, except as otherwise expressly permitted herein, it shall not communicate with (including verbally) or provide information to a Rating Agency without the prior consent of and consultation with the Depositor, and that any permitted communication by it to a Rating Agency will be made by it only in the manner prescribed by the procedures established by the Depositor to ensure compliance with Rule 17g-5 under the Exchange Act, including to the extent set forth in the Servicing Agreement, providing any such communications to the Depositor for posting on the Rule 17g-5 Website pursuant to the Servicing Agreement and this Indenture prior to communicating with such Rating Agency.


 


ARTICLE IV


 


The Notes; Satisfaction and Discharge of Indenture


 


Section 4.01 THE NOTES. The Notes shall be registered in the name of a


nominee designated by the Depository. Beneficial Owners will hold interests in


the Notes through the book-entry facilities of the Depository in minimum initial


Principal Balances of $1,000 and integral multiples of $1,000 in excess thereof.


 


The Indenture Trustee may for all purposes (including the making of


payments due on the Notes) deal with the Depository as the authorized


representative of the Beneficial Owners with respect to the Notes for the


purposes of exercising the rights of Holders of Notes hereunder. Except as


provided in the next succeeding paragraph of this Section 4.01, the rights of


Beneficial Owners with respect to the Notes shall be limited to those


established by law and agreements between such Beneficial Owners and the


Depository and Depository Participants. Except as provided in Section 4.08,


Beneficial Owners shall not be entitled to definitive certificates for the Notes


as to which they are the Beneficial Owners. Requests and directions from, and


votes of, the Depository as Holder of the Notes shall not be deemed inconsistent


if they are made with respect to different Beneficial Owners. The Indenture


Trustee may establish a reasonable record date in connection with solicitations


of consents from or voting by Noteholders and give notice to the Depository of


such record date. Without the consent of the Issuing Entity and the Indenture


Trustee, no Note may be transferred by the Depository except to a successor


Depository that agrees to hold such Note for the account of the Beneficial


Owners.


 


In the event the Depository Trust Company resigns or is removed as


Depository, the Indenture Trustee with the approval of the Issuing Entity may


appoint a successor Depository. If no successor Depository has been appointed


within 30 days of the effective date of the Depository's resignation or removal,


each Beneficial Owner shall be entitled to certificates representing the Notes


it beneficially owns in the manner prescribed in Section 4.08.


 


The Notes shall, on original issue, be executed on behalf of the


Issuing Entity by the Owner Trustee, not in its individual capacity but solely


as Owner Trustee, authenticated by the Note Registrar and delivered by the


Indenture Trustee to or upon the order of the Issuing Entity.


 


Section 4.02 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE


OF NOTES; APPOINTMENT OF CERTIFICATE REGISTRAR. The Issuing Entity shall cause


to be kept at its Corporate Trust Office a Note Register in which, subject to


such reasonable regulations as it may prescribe, the Note Registrar shall


provide for the registration of Notes and of transfers and exchanges of Notes as


herein provided.


 


Subject to the restrictions and limitations set forth below, upon


surrender for registration of transfer of any Note at the Corporate Trust


Office, the Indenture Trustee shall execute and the Note Registrar shall


authenticate and deliver, in the name of the designated transferee or


transferees, one or more new Notes in authorized initial Security Balances


evidencing the same aggregate Percentage Interests.


 


Subject to the foregoing, at the option of the Noteholders, Notes may


be exchanged for other Notes of like tenor or, in each case in authorized


initial Principal Balances evidencing the same aggregate Percentage Interests


upon surrender of the Notes to be exchanged at the Corporate Trust Office of the


Note Registrar. Whenever any Notes are so surrendered for exchange, the


Indenture Trustee shall execute and the Note Registrar shall authenticate and


deliver the Notes which the Noteholder making the exchange is entitled to


receive. Each Note presented or sur rendered for registration of transfer or


exchange shall (if so required by the Note Registrar) be duly endorsed by, or be


accompanied by a written instrument of transfer in form reasonably satisfactory


to the Note Registrar duly executed by, the Holder thereof or his attorney duly


authorized in writing with such signature guaranteed by a commercial bank or


trust company located or having a correspondent located in the city of New York.


Notes delivered upon any such transfer or exchange will evidence the same


obligations, and will be entitled to the same rights and privileges, as the


Notes surrendered.


 


No service charge shall be made for any registration of transfer or


exchange of Notes, but the Note Registrar shall require payment of a sum


sufficient to cover any tax or governmental charge that may be imposed in


connection with any registration of transfer or exchange of Notes.


 


All Notes surrendered for registration of transfer and exchange shall


be cancelled by the Note Registrar and delivered to the Indenture Trustee for


subsequent destruction without liability on the part of either.


 


The Issuing Entity hereby appoints __________________________________


as Certificate Registrar to keep at its Corporate Trust Office a Certificate


Register pursuant to Section 3.09 of the Trust Agreement in which, subject to


such reasonable regulations as it may prescribe, the Certificate Registrar shall


provide for the registration of Certificates and of transfers and exchanges


thereof pursuant to Section 3.05 of the Trust Agreement.


__________________________________ hereby accepts such appointment.


 


Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any


mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee


receives evidence to its satisfaction of the destruction, loss or theft of any


Note, and (ii) there is delivered to the Indenture Trustee such security or


indemnity as may be required by it to hold the Issuing Entity and the Indenture


Trustee harmless, then, in the absence of notice to the Issuing Entity, the Note


Registrar or the Indenture Trustee that such Note has been acquired by a bona


fide purchaser, and provided that the requirements of Section 8-405 of the UCC


are met, the Issuing Entity shall execute, and upon its request the Indenture


Trustee shall authenticate and deliver, in exchange for or in lieu of any such


mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class;


provided, however, that if any such destroyed, lost or stolen Note, but not a


mutilated Note, shall have become or within seven days shall be due and payable,


instead of issuing a replacement Note, the Issuing Entity may pay such


destroyed, lost or stolen Note when so due or payable without surrender thereof.


If, after the delivery of such replacement Note or payment of a destroyed, lost


or stolen Note pursuant to the proviso to the preceding sentence, a bona fide


purchaser of the original Note in lieu of which such replacement Note was issued


presents for payment such original Note, the Issuing Entity and the Indenture


Trustee shall be entitled to recover such replacement Note (or such payment)


from the Person to whom it was delivered or any Person taking such replacement


Note from such Person to whom such replacement Note was delivered or any


assignee of such Person, except a bona fide purchaser, and shall be entitled to


recover upon the security or indemnity provided therefor to the extent of any


loss, damage, cost or expense incurred by the Issuing Entity or the Indenture


Trustee in connection therewith.


 


Upon the issuance of any replacement Note under this Section 4.03, the


Issuing Entity may require the payment by the Holder of such Note of a sum


sufficient to cover any tax or other governmental charge that may be imposed in


relation thereto and any other reasonable expenses (including the fees and


expenses of the Indenture Trustee) connected therewith.


 


Every replacement Note issued pursuant to this Section 4.03 in


replacement of any mutilated, destroyed, lost or stolen Note shall constitute an


original additional contractual obligation of the Issuing Entity, whether or not


the mutilated, destroyed, lost or stolen Note shall be at any time enforceable


by anyone, and shall be entitled to all the benefits of this Indenture equally


and proportionately with any and all other Notes duly issued hereunder.


 


The provisions of this Section 4.03 are exclusive and shall preclude


(to the extent lawful) all other rights and remedies with respect to the


replacement or payment of mutilated, destroyed, lost or stolen Notes.


 


Section 4.04 PERSONS DEEMED OWNERS. Prior to due presentment for


registration of transfer of any Note, the Issuing Entity, the Indenture Trustee


and any agent of the Issuing Entity or the Indenture Trustee may treat the


Person in whose name any Note is registered (as of the day of determination) as


the owner of such Note for the purpose of receiving payments of principal of and


interest, if any, on such Note and for all other purposes whatsoever, whether or


not such Note be overdue, and neither the Issuing Entity, the Indenture Trustee


nor any agent of the Issuing Entity or the Indenture Trustee shall be affected


by notice to the contrary.


 


Section 4.05 CANCELLATION. All Notes surrendered for payment,


registration of transfer, exchange or redemption shall, if surrendered to any


Person other than the Indenture Trustee, be delivered to the Indenture Trustee


and shall be promptly cancelled by the Indenture Trustee. The Issuing Entity may


at any time deliver to the Indenture Trustee for cancellation any Notes


previously authenticated and delivered hereunder which the Issuing Entity may


have acquired in any manner whatsoever, and all Notes so delivered shall be


promptly cancelled by the Indenture Trustee. No Notes shall be authenticated in


lieu of or in exchange for any Notes cancelled as provided in this Section 4.05,


except as expressly permitted by this Indenture. All cancelled Notes may be held


or disposed of by the Indenture Trustee in accordance with its standard


retention or disposal policy as in effect at the time unless the Issuing Entity


shall direct by an Issuer Request that they be destroyed or returned to it;


provided however, that such Issuer Request is timely and the Notes have not been


previously disposed of by the Indenture Trustee.


 


Section 4.06 BOOK-ENTRY NOTES. The Notes, upon original issuance, will


be issued in the form of typewritten Notes representing the Book-Entry Notes, to


be delivered to The Depository Trust Company, the initial Depository, by, or on


behalf of, the Issuing Entity. Such Notes shall initially be registered on the


Note Register in the name of Cede & Co., the nominee of the initial Depository,


and no Beneficial Owner will receive a Definitive Note representing such


Beneficial Owner's interest in such Note, except as provided in Section 4.08.


Unless and until definitive, fully registered Notes (the "Definitive Notes")


have been issued to Beneficial Owners pursuant to Section 4.08:


 


(i) the provisions of this Section 4.06 shall be in full force


and effect;


 


(ii) the Note Registrar and the Indenture Trustee shall be


entitled to deal with the Depository for all purposes of this Indenture


(including the payment of principal of and interest on the Notes and


the giving of instructions or directions hereunder) as the sole holder


of the Notes, and shall have no obligation to the Owners of Notes;


 


(iii) to the extent that the provisions of this Section 4.06


conflict with any other provisions of this Indenture, the provisions of


this Section 4.06 shall control;


 


(iv) the rights of Beneficial Owners shall be exercised only


through the Depository and shall be limited to those established by law


and agreements between such Owners of Notes and the Depository and/or


the Depository Participants. Unless and until Definitive Notes are


issued pursuant to Section 4.08, the initial Depository will make


book-entry transfers among the Depository Participants and receive and


transmit payments of principal of and interest on the Notes to such


Depository Participants; and


 


(v) whenever this Indenture requires or permits actions to be


taken based upon instructions or directions of Holders of Notes


evidencing a specified percentage of the Security Balances of the


Notes, the Depository shall be deemed to represent such percentage only


to the extent that it has received instructions to such effect from


Beneficial Owners and/or Depository Participants owning or


representing, respectively, such required percentage of the beneficial


interest in the Notes and has delivered such instructions to the


Indenture Trustee.


 


Section 4.07 NOTICES TO DEPOSITORY. Whenever a notice or other


communication to the Note Holders is required under this Indenture, unless and


until Definitive Notes shall have been issued to Beneficial Owners pursuant to


Section 4.08, the Indenture Trustee shall give all such notices and


communications specified herein to be given to Holders of the Notes to the


Depository, and shall have no obligation to the Beneficial Owners.


 


Section 4.08 DEFINITIVE NOTES. If (i) the Administrator advises the


Indenture Trustee in writing that the Depository is no longer willing or able to


properly discharge its responsibilities with respect to the Notes and the


Administrator is unable to locate a qualified successor, (ii) the Administrator


at its option advises the Indenture Trustee in writing that it elects to


terminate the book-entry system through the Depository or (iii) after the


occurrence of an Event of Default, Owners of Notes representing beneficial


interests aggregating at least a majority of the Security Balances of the Notes


advise the Depository in writing that the continuation of a book-entry system


through the Depository is no longer in the best interests of the Beneficial


Owners, then the Depository shall notify all Beneficial Owners and the Indenture


Trustee of the occurrence of any such event and of the availability of


Definitive Notes to Beneficial Owners requesting the same. Upon surrender to the


Indenture Trustee of the typewritten Notes representing the Book-Entry Notes by


the Depository, accompanied by registration instructions, the Issuing Entity


shall execute and the Indenture Trustee shall authenticate the Definitive Notes


in accordance with the instructions of the Depository. None of the Issuing


Entity, the Note Registrar or the Indenture Trustee shall be liable for any


delay in delivery of such instructions and may conclusively rely on, and shall


be protected in relying on, such instructions. Upon the issuance of Definitive


Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes


as Noteholders.


 


Section 4.09 TAX TREATMENT. The Issuing Entity has entered into this


Indenture, and the Notes will be issued, with the intention that, for federal,


state and local income, single business and franchise tax purposes, the Notes


will qualify as indebtedness of the Issuing Entity. The Issuing Entity, by


entering into this Indenture, and each Noteholder, by its acceptance of its Note


(and each Beneficial Owner by its acceptance of an interest in the applicable


Book-Entry Note), agree to treat the Notes for federal, state and local income,


single business and franchise tax purposes as indebtedness of the Issuing


Entity.


 


Section 4.10 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture


shall cease to be of further effect with respect to the Notes except as to (i)


rights of registration of transfer and exchange, (ii) substitution of mutilated,


destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments


of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.06, 3.09,


3.16, 3.18 and 3.19, (v) the rights, obligations and immunities of the Indenture


Trustee hereunder (including the rights of the Indenture Trustee under Section


6.07 and the obligations of the Indenture Trustee under Section 4.11) and (vi)


the rights of Noteholders as beneficiaries hereof with respect to the property


so deposited with the Indenture Trustee payable to all or any of them, and the


Indenture Trustee, on demand of and at the expense of the Issuing Entity, shall


execute proper instruments acknowledging satisfaction and discharge of this


Indenture with respect to the Notes, when


 


(A)  either


 


(1) all Notes theretofore authenticated and delivered


(other than (i) Notes that have been destroyed, lost


or stolen and that have been replaced or paid as


provided in Section 4.03 and (ii) Notes for whose


payment money has theretofore been deposited in trust


or segregated and held in trust by the Issuing Entity


and thereafter repaid to the Issuing Entity or


discharged from such trust, as provided in Section


3.03) have been delivered to the Indenture Trustee


for cancellation; or


 


(2) all Notes not theretofore delivered to the


Indenture Trustee for cancellation


 


a.  have become due and payable,


 


b.  will become due and payable at the


Final Scheduled Payment Date within


one year, or


 


c.  have been called for early


redemption pursuant to Section


5.02.


 


and the Issuing Entity, in the case of a. or b. above, has irrevocably deposited


or caused to be irrevocably deposited with the Indenture Trustee cash or direct


obligations of or obligations guaranteed by the United States of America (which


will mature prior to the date such amounts are payable), in trust for such


purpose, in an amount sufficient to pay and discharge the entire indebtedness on


such Notes and Certificates then outstanding not theretofore delivered to the


Indenture Trustee for cancellation when due on the Final Scheduled Payment Date;


 


(B)  the Issuing Entity has paid or caused to be paid all


other sums payable hereunder and under the Insurance


Agreement by the Issuing Entity; and


 


(C)  the Issuing Entity has delivered to the Indenture


Trustee and the Credit Enhancer an Officer's


Certificate, an Opinion of Counsel and each meeting


the applicable requirements of Section 10.01 each


stating that all conditions precedent herein provided


for relating to the satisfaction and discharge of


this Indenture have been complied with and, if the


Opinion of Counsel relates to a deposit made in


connection with Section 4.10(A)(2)b. above, such


opinion shall further be to the effect that such


deposit will not have any material adverse tax


consequences to the Issuing Entity, any Noteholders


or any Certificateholders.


 







Section 4.11 APPLICATION OF TRUST MONEY. All monies deposited with the


Indenture Trustee pursuant to Section 4.10 hereof shall be held in trust and


applied by it, in accordance with the provisions of the Notes and this


Indenture, to the payment, either directly or through any Paying Agent or


Certificate Paying Agent, as the Indenture Trustee may determine, to the Holders


of Securities, of all sums due and to become due thereon for principal and


interest; but such monies need not be segregated from other funds except to the


extent required herein or required by law.


 


Section 4.12 SUBROGATION AND COOPERATION. (a) The Issuing Entity and


the Indenture Trustee acknowledge that (i) to the extent the Credit Enhancer


makes payments under the Credit Enhancement Instrument on account of principal


of or interest on the Notes, the Credit Enhancer will be fully subrogated to the


rights of such Holders to receive such principal and interest from the Issuing


Entity, and (ii) the Credit Enhancer shall be paid such principal and interest


but only from the sources and in the manner provided herein and in the Insurance


Agreement for the payment of such principal and interest.


 


The Indenture Trustee shall cooperate in all respects with any


reasonable request by the Credit Enhancer for action to preserve or enforce the


Credit Enhancer's rights or interest under this Indenture or the Insurance


Agreement without limiting the rights of the Noteholders as otherwise set forth


in the Indenture, including, without limitation, upon the occurrence and


continuance of a default under the Insurance Agreement, a request to take any


one or more of the following actions:


 


(i) institute Proceedings for the collection of all amounts


then payable on the Notes, or under this Indenture in respect to the


Notes and all amounts payable under the Insurance Agreement enforce any


judgment obtained and collect from the Issuing Entity monies adjudged


due;


 


(ii) sell the Trust Estate or any portion thereof or rights or


interest therein, at one or more public or private Sales called and


conducted in any manner permitted by law;


 


(iii) file or record all Assignments that have not previously


been recorded;


 


(iv) institute Proceedings from time to time for the complete


or partial foreclosure of this Indenture; and


 


(v) exercise any remedies of a secured party under the Uniform


Commercial Code and take any other appropriate action to protect and


enforce the rights and remedies of the Credit Enhancer hereunder.


 


Section 4.13 REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection


with the satisfaction and discharge of this Indenture with respect to the Notes,


all monies then held by any Administrator other than the Indenture Trustee under


the provisions of this Indenture with respect to such Notes shall, upon demand


of the Issuing Entity, be paid to the Indenture Trustee to be held and applied


according to Section 3.05 and thereupon such Paying Agent shall be released from


all further liability with respect to such monies.


 


Section 4.14 TEMPORARY NOTES. Pending the preparation of any Definitive


Notes, the Issuing Entity may execute and upon its written direction, the


Indenture Trustee may authenticate and make available for delivery, temporary


Notes that are printed, lithographed, typewritten, photocopied or otherwise


produced, in any denomination, substantially of the tenor of the Definitive


Notes in lieu of which they are issued and with such appropriate insertions,


omissions, substitutions and other variations as the officers executing such


Notes may determine, as evidenced by their execution of such Notes.


 


If temporary Notes are issued, the Issuing Entity will cause Definitive


Notes to be prepared without unreasonable delay. After the preparation of the


Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes


upon surrender of the temporary Notes at the office or agency of the Indenture


Trustee, without charge to the Holder. Upon surrender for cancellation of any


one or more temporary Notes, the Issuing Entity shall execute and the Indenture


Trustee shall authenticate and make available for delivery, in exchange


therefor, Definitive Notes of authorized denominations and of like tenor and


aggregate principal amount. Until so exchanged, such temporary Notes shall in


all respects be entitled to the same benefits under this Indenture as Definitive


Notes.


 


ARTICLE V


 


Default and Remedies


 


Section 5.01 EVENTS OF DEFAULT. "Event of Default," wherever used


herein, shall have the meaning provided in Article I; provided, however, that no


Event of Default will occur under clause (i) or clause (ii) of the definition of


"Event of Default" if the Issuing Entity fails to make payments of principal of


and interest on the Notes so long as the Credit Enhancer makes payments


sufficient therefore under the Credit Enhancement Instrument.


 


The Issuing Entity shall deliver to the Indenture Trustee and the


Credit Enhancer, within five days after learning of the occurrence of an Event


of Default, written notice in the form of an Officer's Certificate of any event


which with the giving of notice and the lapse of time would become an Event of


Default under clause (iii) of the definition of "Event of Default", its status


and what action the Issuing Entity is taking or proposes to take with respect


thereto.


 


Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an


Event of Default should occur and be continuing or if the Master Servicer shall


purchase all of the Mortgage Loans pursuant to Section 8.08 of the Servicing


Agreement, then and in every such case the Indenture Trustee or the Holders of


Notes representing not less than a majority of the Security Balances of all


Notes may declare the Notes to be immediately due and payable, by a notice in


writing to the Issuing Entity (and to the Indenture Trustee if given by


Noteholders), and upon any such declaration the unpaid principal amount of such


Class of Notes, together with accrued and unpaid interest thereon through the


date of acceleration, shall become immediately due and payable. Unless the prior


written consent of the Credit Enhancer shall have been obtained by the Indenture


Trustee, the Payment Date upon which such accelerated payment is due and payable


shall not be a Payment Date under the Credit Enhancement Instrument and the


Indenture Trustee shall not be authorized under Section 3.29 to make a draw


therefor.


 


At any time after such declaration of acceleration of maturity with


respect to an Event of Default has been made and before a judgment or decree for


payment of the money due has been obtained by the Indenture Trustee as


hereinafter in this Article V provided, the Holders of Notes representing a


majority of the Security Balances of all Notes, by written notice to the Issuing


Entity and the Indenture Trustee, may waive the related Event of Default and


rescind and annul such declaration and its consequences if:


 


(i) the Issuing Entity has paid or deposited with the


Indenture Trustee a sum sufficient to pay:


 


(A) all payments of principal of and interest on the Notes and


all other amounts that would then be due hereunder or upon the Notes if


the Event of Default giving rise to such acceleration had not occurred;


and


 


(B) all sums paid or advanced by the Indenture Trustee


hereunder and the reasonable compensation, expenses, disbursements and


advances of the Indenture Trustee and its agents and counsel; and


 


(ii) all Events of Default, other than the nonpayment of the


principal of the Notes that has become due solely by such acceleration,


have been cured or waived as provided in Section 5.12.


 


No such rescission shall affect any subsequent default or impair any


right consequent thereto.


 


Section 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY


INDENTURE TRUSTEE. (a) The Issuing Entity covenants that if (i) default is made


in the payment of any interest on any Note when the same becomes due and


payable, and such default continues for a period of five days, or (ii) default


is made in the payment of the principal of or any installment of the principal


of any Note when the same becomes due and payable, the Issue shall, upon demand


of the Indenture Trustee, pay to it, for the benefit of the Holders of Notes and


of the Credit Enhancer, the whole amount then due and payable on the Notes for


principal and interest, with interest upon the overdue principal, and in


addition thereto such further amount as shall be sufficient to cover the costs


and expenses of collection, including the reasonable compensation, expenses,


disbursements and advances of the Indenture Trustee and its agents and counsel.


 


(b) In case the Issuing Entity shall fail forthwith to pay such amounts


upon such demand, the Indenture Trustee, in its own name and as trustee of an


express trust, subject to the provisions of Section 10.17 hereof may institute a


Proceeding for the collection of the sums so due and unpaid, and may prosecute


such Proceeding to judgment or final decree, and may enforce the same against


the Issuing Entity or other obligor upon the Notes and collect in the manner


provided by law out of the property of the Issuing Entity or other obligor the


Notes, wherever situated, the monies adjudged or decreed to be payable.


 


(c) If an Event of Default occurs and is continuing, the Indenture


Trustee subject to the provisions of Section 10.17 hereof may, as more


particularly provided in Section 5.04, in its discretion, proceed to protect and


enforce its rights and the rights of the Noteholders and the Credit Enhancer, by


such appropriate Proceedings as the Indenture Trustee shall deem most effective


to protect and enforce any such rights, whether for the specific enforcement of


any covenant or agreement in this Indenture or in aid of the exercise of any


power granted herein, or to enforce any other proper remedy or legal or


equitable right vested in the Indenture Trustee by this Indenture or by law.


 


(d) In case there shall be pending, relative to the Issuing Entity or


any other obligor upon the Notes or any Person having or claiming an ownership


interest in the Trust Estate, Proceedings under Title 11 of the United States


Code or any other applicable federal or state bankruptcy, insolvency or other


similar law, or in case a receiver, assignee or trustee in bankruptcy or


reorganization, liquidator, sequestrator or similar official shall have been


appointed for or taken possession of the Issuing Entity or its property or such


other obligor or Person, or in case of any other comparable judicial Proceedings


relative to the Issuing Entity or other obligor upon the Notes, or to the


creditors or property of the Issuing Entity or such other obligor, the Indenture


Trustee, irrespective of whether the principal of any Notes shall then be due


and payable as therein expressed or by declaration or otherwise and irrespective


of whether the Indenture Trustee shall have made any demand pursuant to the


provisions of this Section, shall be entitled and empowered, by intervention in


such Proceedings or otherwise:


 


(i) to file and prove a claim or claims for the whole amount


of principal and interest owing and unpaid in respect of the Notes and


to file such other papers or documents as may be necessary or advisable


in order to have the claims of the Indenture Trustee (including any


claim for reasonable compensation to the Indenture Trustee and each


predecessor Indenture Trustee, and their respective agents, attorneys


and counsel, and for reimbursement of all expenses and liabilities


incurred, and all advances made, by the Indenture Trustee and each


predecessor Indenture Trustee, except as a result of negligence or bad


faith) and of the Noteholders allowed in such Proceedings;


 


(ii) unless prohibited by applicable law and regulations, to


vote on behalf of the Holders of Notes in any election of a trustee, a


standby trustee or Person performing similar functions in any such


Proceedings;


 


(iii) to collect and receive any monies or other property


payable or deliverable on any such claims and to distribute all amounts


received with respect to the claims of the Noteholders and of the


Indenture Trustee on their behalf; and


 


(iv) to file such proofs of claim and other papers or


documents as may be necessary or advisable in order to have the claims


of the Indenture Trustee or the Holders of Notes allowed in any


judicial proceedings relative to the Issuing Entity, its creditors and


its property;


 


and any trustee, receiver, liquidator, custodian or other similar official in


any such Proceeding is hereby authorized by each of such Noteholders to make


payments to the Indenture Trustee, and, in the event that the Indenture Trustee


shall consent to the making of payments directly to such Noteholders, to pay to


the Indenture Trustee such amounts as shall be sufficient to cover reasonable


compensation to the Indenture Trustee, each predecessor Indenture Trustee and


their respective agents, attorneys and counsel, and all other expenses and


liabilities incurred, and all advances made, by the Indenture Trustee and each


predecessor Indenture Trustee except as a result of negligence or bad faith.


 


(e) Nothing herein contained shall be deemed to authorize the Indenture


Trustee to authorize or consent to or vote for or accept or adopt on behalf of


any Noteholder any plan of reorganization, arrangement, adjustment or


composition affecting the Notes or the rights of any Holder thereof or to


authorize the Indenture Trustee to vote in respect of the claim of any Note


holder in any such proceeding except, as aforesaid, to vote for the election of


a trustee in bankruptcy or similar Person.


 


(f) All rights of action and of asserting claims under this Indenture,


or under any of the Notes, may be enforced by the Indenture Trustee without the


possession of any of the Notes or the production thereof in any trial or other


Proceedings relative thereto, and any such action or proceedings instituted by


the Indenture Trustee shall be brought in its own name as trustee of an express


trust, and any recovery of judgment, subject to the payment of the expenses,


disbursements and compensation of the Indenture Trustee, each predecessor


Indenture Trustee and their respective agents and attorneys, shall be for the


ratable benefit of the Holders of the Notes.


 


(g) In any Proceedings brought by the Indenture Trustee (and also any


Proceedings involving the interpretation of any provision of this Indenture to


which the Indenture Trustee shall be a party), the Indenture Trustee shall be


held to represent all the Holders of the Notes, and it shall not be necessary to


make any Noteholder a party to any such Proceedings.


 


Section 5.04 REMEDIES; PRIORITIES. (a) If an Event of Default shall


have occurred and be continuing, the Indenture Trustee subject to the provisions


of Section 10.17 hereof may do one or more of the following (subject to Section


5.05):


 


(i) institute Proceedings in its own name and as trustee of an


express trust for the collection of all amounts then payable on the


Notes or under this Indenture with respect thereto, whether by


declaration or otherwise, and all amounts payable under the Insurance


Agreement, enforce any judgment obtained, and collect from the Issuing


Entity and any other obligor upon such Notes monies adjudged due;


 


(ii) institute Proceedings from time to time for the complete


or partial foreclosure of this Indenture with respect to the Trust


Estate;


 


(iii) exercise any remedies of a secured party under the UCC


and take any other appropriate action to protect and enforce the rights


and remedies of the Indenture Trustee, the Holders of the Notes and the


Credit Enhancer; and


 


(iv) sell the Trust Estate or any portion thereof or rights or


interest therein, at one or more public or private sales called and


conducted in any manner permitted by law;


 


provided, however, that the Indenture Trustee may not sell or otherwise


liquidate the Trust Estate following an Event of Default, unless (A) the


Indenture Trustee obtains the consent of the Holders of 100% of the aggregate


Principal Balances of the Notes and the Credit Enhancer, which consent will not


be unreasonably withheld, (B) the proceeds of such sale or liquidation


distributable to Holders are sufficient to discharge in full all amounts then


due and unpaid upon the Notes for principal and interest and to reimburse the


Credit Enhancer for any amounts drawn under the Credit Enhancement Instrument


and any other amounts due the Credit Enhancer under the Insurance Agreement or


(C) the Indenture Trustee determines that the Mortgage Loans will not continue


to provide sufficient funds for the payment of principal of and interest on the


Notes as they would have become due if the Notes had not been declared due and


payable, and the Indenture Trustee obtains the consent of the Credit Enhancer,


which consent will not be unreasonably withheld, and of the Holders of a


majority of the aggregate Principal Balances of the Notes. In determining such


sufficiency or insufficiency with respect to clause (B) and (C), the Indenture


Trustee may, but need not, obtain and rely upon an opinion of an Independent


investment banking or accounting firm of national reputation as to the


feasibility of such proposed action and as to the sufficiency of the Trust


Estate for such purpose. Notwithstanding the fore going, so long as an Event of


Servicer Termination has not occurred, any Sale of the Trust Estate shall be


made subject to the continued Servicing of the Mortgage Loans by the Master


Servicer as provided in the Servicing Agreement.


 


(b) If the Indenture Trustee collects any money or property pursuant to


this Article V, it shall pay out the money or property in the following order:


 


FIRST:  to the Indenture Trustee for amounts due under Section 6.07;


 


SECOND: to each Class of Noteholders for amounts due and unpaid on the


related Class Notes for interest and to each Noteholder of such Class in each


case, ratably, without preference or priority of any kind, according to the


amounts due and payable on such Class of Notes for interest from amounts


available in the Trust Estate for such Noteholders;


 


THIRD: to Holders of each Class of Notes for amounts due and unpaid on


the related Class of Notes for principal, from amounts available in the Trust


Estate for such Noteholders, and to each Noteholder of such Class in each case


ratably, without preference or priority of any kind, according to the amounts


due and payable on such Class of Notes for principal, until the Security


Balances of each Class of Notes is reduced to zero;


 


FOURTH: to the Issuing Entity for amounts required to be distributed to


the Certificateholders in respect of interest and principal pursuant to the


Trust Agreement;


 


FIFTH: To the payment of all amounts due and owing to the Credit


Enhancer under the Insurance Agreement;


 


SIXTH: to the Issuing Entity for amounts due under Article VIII of the


Trust Agreement; and


 


SEVENTH: to the payment of the remainder, if any to the Issuing Entity


or any other person legally entitled thereto. The Indenture Trustee may fix a


record date and payment date for any payment to Noteholders pursuant to this


Section 5.04. At least 15 days before such record date, the Indenture Trustee


shall mail to each Noteholder a notice that states the record date, the payment


date and the amount to be paid.


 


Section 5.05 OPTIONAL PRESERVATION OF THE TRUST ESTATE. If the Notes


have been declared to be due and payable under Section 5.02 following an Event


of Default and such declaration and its consequences have not been rescinded and


annulled, the Indenture Trustee may, but need not, elect to take and maintain


possession of the Trust Estate. It is the desire of the parties hereto and the


Noteholders that there be at all times sufficient funds for the payment of


principal of and interest on the Notes and other obligations of the Issuing


Entity including payment to the Credit Enhancer, and the Indenture Trustee shall


take such desire into account when determining whether or not to take and


maintain possession of the Trust Estate. In determining whether to take and


maintain possession of the Trust Estate, the Indenture Trustee may, but need


not, obtain and rely upon an opinion of an Independent investment banking or


accounting firm of national reputation as to the feasibility of such proposed


action and as to the sufficiency of the Trust Estate for such purpose.


 


Section 5.06 LIMITATION OF SUITS. No Holder of any Note shall have any


right to institute any Proceeding, judicial or otherwise, with respect to this


Indenture, or for the appointment of a receiver or trustee, or for any other


remedy hereunder, unless and subject to the provisions of Section 10.17 hereof:


 


(i) such Holder has previously given written notice to the


Indenture Trustee of a continuing Event of Default;


 


(ii) the Holders of not less than 25% of the Security Balances


of the Notes have made written request to the Indenture Trustee to


institute such Proceeding in respect of such Event of Default in its


own name as Indenture Trustee hereunder;


 


(iii) such Holder or Holders have offered to the Indenture


Trustee reasonable indemnity against the costs, expenses and


liabilities to be incurred in complying with such request;


 


(iv) the Indenture Trustee for 60 days after its receipt of


such notice, request and offer of indemnity has failed to institute


such Proceedings; and


 


(v) no direction inconsistent with such written request has


been given to the Indenture Trustee during such 60-day period by the


Holders of a majority of the Security Balances of the Notes.


 


It is understood and intended that no one or more Holders of Notes


shall have any right in any manner whatever by virtue of, or by availing of, any


provision of this Indenture to affect, disturb or prejudice the rights of any


other Holders of Notes or to obtain or to seek to obtain priority or preference


over any other Holders or to enforce any right under this Indenture, except in


the manner herein provided.


 


In the event the Indenture Trustee shall receive conflicting or


inconsistent requests and indemnity from two or more groups of Holders of Notes,


each representing less than a majority of the Security Balances of the Notes,


the Indenture Trustee in its sole discretion may determine what action, if any,


shall be taken, notwithstanding any other provisions of this Indenture.


 


Section 5.07 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL


AND INTEREST. Notwithstanding any other provisions in this Indenture, the Holder


of any Note shall have the right, which is absolute and unconditional, to


receive payment of the principal of and interest, if any, on such Note on or


after the respective due dates thereof expressed in such Note or in this


Indenture and to institute suit for the enforcement of any such payment, and


such right shall not be impaired without the consent of such Holder.


 


Section 5.08 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture


Trustee or any Noteholder has instituted any Proceeding to enforce any right or


remedy under this Indenture and such Proceeding has been discontinued or


abandoned for any reason or has been determined adversely to the Indenture


Trustee or to such Noteholder, then and in every such case the Issuing Entity,


the Indenture Trustee and the Noteholders shall, subject to any determination in


such Proceeding, be restored severally and respectively to their former


positions hereunder, and thereafter all rights and remedies of the Indenture


Trustee and the Noteholders shall continue as though no such Proceeding had been


instituted.


 


Section 5.09 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein


conferred upon or reserved to the Indenture Trustee or to the Noteholders is


intended to be exclusive of any other right or remedy, and every right and


remedy shall, to the extent permitted by law, be cumulative and in addition to


every other right and remedy given hereunder or now or hereafter existing at law


or in equity or otherwise. The assertion or employment of any right or remedy


hereunder, or otherwise, shall not prevent the concurrent assertion or


employment of any other appropriate right or remedy.


 


Section 5.10 DELAY OR OMISSION NOT A WAIVER. No delay or omission of


the Indenture Trustee or any Holder of any Note to exercise any right or remedy


accruing upon any Event of Default shall impair any such right or remedy or


constitute a waiver of any such Event of Default or an acquiescence therein.


Every right and remedy given by this Article V or by law to the Indenture


Trustee or to the Noteholders may be exercised from time to time, and as often


as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as


the case may be.


 


Section 5.11 CONTROL BY NOTEHOLDERS. The Holders of a majority of the


Security Balances of Notes shall have the right to direct the time, method and


place of conducting any Proceeding for any remedy available to the Indenture


Trustee with respect to the Notes or exercising any trust or power conferred on


the Indenture Trustee; provided that:


 


(i) such direction shall not be in conflict with any rule of


law or with this Indenture;


 


(ii) subject to the express terms of Section 5.04, any


direction to the Indenture Trustee to sell or liquidate the Trust


Estate shall be by Holders of Notes representing not less than 100% of


the Security Balances of Notes;


 


(iii) if the conditions set forth in Section 5.05 have been


satisfied and the Indenture Trustee elects to retain the Trust Estate


pursuant to such Section, then any direction to the Indenture Trustee


by Holders of Notes representing less than 100% of the Security


Balances of Notes to sell or liquidate the Trust Estate shall be of no


force and effect; and


 


(iv) the Indenture Trustee may take any other action deemed


proper by the Indenture Trustee that is not inconsistent with such


direction.


 


Notwithstanding the rights of Noteholders set forth in this Section,


subject to Section 6.01, the Indenture Trustee need not take any action that it


determines might involve it in liability or might materially adversely affect


the rights of any Noteholders not consenting to such action.


 


Section 5.12 WAIVER OF PAST DEFAULTS. Prior to the declaration of the


acceleration of the maturity of the Notes as provided in Section 5.02, the


Holders of Notes of not less than a majority of the Security Balances of the


Notes may waive any past Event of Default and its consequences except an Event


of Default (a) with respect to payment of principal of or interest on any of the


Notes or (b) in respect of a covenant or provision hereof which cannot be


modified or amended without the consent of the Holder of each Note or (c) the


waiver of which would materially and adversely affect the interests of the


Credit Enhancer or modify its obligation under the Credit Enhancement


Instrument. In the case of any such waiver, the Issuing Entity, the Indenture


Trustee and the Holders of the Notes shall be restored to their former positions


and rights hereunder, respectively; but no such waiver shall extend to any


subsequent or other Event of Default or impair any right consequent thereto.


 


Upon any such waiver, any Event of Default arising therefrom shall be


deemed to have been cured and not to have occurred, for every purpose of this


Indenture; but no such waiver shall extend to any subsequent or other Event of


Default or impair any right consequent thereto.


 


Section 5.13 UNDERTAKING FOR COSTS. All parties to this Indenture


agree, and each Holder of any Note by such Holder's acceptance thereof shall be


deemed to have agreed, that any court may in its discretion require, in any suit


for the enforcement of any right or remedy under this Indenture, or in any suit


against the Indenture Trustee for any action taken, suffered or omitted by it as


Indenture Trustee, the filing by any party litigant in such suit of an


undertaking to pay the costs of such suit, and that such court may in its


discretion assess reasonable costs, including reasonable attorneys' fees,


against any party litigant in such suit, having due regard to the merits and


good faith of the claims or defenses made by such party litigant; but the


provisions of this Section 5.13 shall not apply to (a) any suit instituted by


the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of


Noteholders, in each case holding in the aggregate more than 10% of the Security


Balances of the Notes or (c) any suit instituted by any Noteholder for the


enforcement of the payment of principal of or interest on any Note on or after


the respective due dates expressed in such Note and in this Indenture.


 


Section 5.14 WAIVER OF STAY OR EXTENSION LAWS. The Issuing Entity


covenants (to the extent that it may lawfully do so) that it will not at any


time insist upon, or plead or in any manner whatsoever, claim or take the


benefit or advantage of, any stay or extension law wherever enacted, now or at


any time hereafter in force, that may affect the covenants or the performance of


this Indenture; and the Issuing Entity (to the extent that it may lawfully do


so) hereby expressly waives all benefit or advantage of any such law, and


covenants that it shall not hinder, delay or impede the execution of any power


herein granted to the Indenture Trustee, but will suffer and permit the


execution of every such power as though no such law had been enacted.


 


Section 5.15 SALE OF TRUST ESTATE. (a) The power to effect any sale or


other disposition (a "Sale") of any portion of the Trust Estate pursuant to


Section 5.04 is expressly subject to the provisions of Section 5.05 and this


Section 5.15. The power to effect any such Sale shall not be exhausted by any


one or more Sales as to any portion of the Trust Estate remaining unsold, but


shall continue unimpaired until the entire Trust Estate shall have been sold or


all amounts payable on the Notes and under this Indenture and under the


Insurance Agreement shall have been paid. The Indenture Trustee may from time to


time postpone any public Sale by public announcement made at the time and place


of such Sale. The Indenture Trustee hereby expressly waives its right to any


amount fixed by law as compensation for any Sale.


 


(b) The Indenture Trustee shall not in any private Sale sell the Trust


Estate, or any portion thereof, unless


 


(1) the Holders of all Notes and the Credit Enhancer


consent to or direct the Indenture Trustee to make,


such Sale, or


 


(2) the proceeds of such Sale would be not less than


the entire amount which would be payable to the


Noteholders under the Notes and the Credit Enhancer


in respect of amounts drawn under the Credit


Enhancement Instrument and any other amounts due the


Credit Enhancer under the Insurance Agreement, in


full payment thereof in accordance with Section 5.02,


on the Payment Date next succeeding the date of such


Sale, or


 


(3) The Indenture Trustee determines, in its sole


discretion, that the conditions for retention of the


Trust Estate set forth in Section 5.05 cannot be


satisfied (in making any such determination, the


Indenture Trustee may rely upon an opinion of an


Independent investment banking firm obtained and


delivered as provided in Section 5.05), and the


Credit Enhancer consents to such Sale, which consent


will not be unreasonably withheld and the Holders


representing at least 66-2/3% of the Security


Balances of the Notes consent to such Sale.


 


The purchase by the Indenture Trustee of all or any portion of the


Trust Estate at a private Sale shall not be deemed a Sale or other disposition


thereof for purposes of this Section 5.15(b).


 


(c) Unless the Holders and the Credit Enhancer have otherwise consented


or directed the Indenture Trustee, at any public Sale of all or any portion of


the Trust Estate at which a minimum bid equal to or greater than the amount


described in paragraph (2) of subsection (b) of this Section 5.15 has not been


established by the Indenture Trustee and no Person bids an amount equal to or


greater than such amount, the Indenture Trustee shall bid an amount at least


$1.00 more than the highest other bid.


 


(d) In connection with a Sale of all or any portion of the Trust Estate


 


(1) any Holder or Holders of Notes may bid for and


with the consent of the Credit Enhancer purchase the


property offered for sale, and upon compliance with


the terms of sale may hold, retain and possess and


dispose of such property, without further


accountability, and may, in paying the purchase money


therefor, deliver any Notes or claims for interest


thereon in lieu of cash up to the amount which shall,


upon distribution of the net proceeds of such sale,


be payable thereon, and such Notes, in case the


amounts so payable thereon shall be less than the


amount due thereon, shall be returned to the Holders


thereof after being appropriately stamped to show


such partial payment;


 


(2) the Indenture Trustee may bid for and acquire the


property offered for Sale in connection with any Sale


thereof, and, subject to any requirements of, and to


the extent permitted by, applicable law in connection


therewith, may purchase all or any portion of the


Trust Estate in a private sale, and, in lieu of


paying cash therefor, may make settlement for the


purchase price by crediting the gross Sale price


against the sum of (A) the amount which would be


distributable to the Holders of the Notes and Holders


of Certificates and amounts owing to the Credit


Enhancer as a result of such Sale in accordance with


Section 5.04(b) on the Payment Date next succeeding


the date of such Sale and (B) the expenses of the


Sale and of any Proceedings in connection therewith


which are reimbursable to it, without being required


to produce the Notes in order to complete any such


Sale or in order for the net Sale price to be


credited against such Notes, and any property so


acquired by the Indenture Trustee shall be held and


dealt with by it in accordance with the provisions of


this Indenture;


 


(3) the Indenture Trustee shall execute and deliver


an appropriate instrument of conveyance transferring


its interest in any portion of the Trust Estate in


connection with a Sale thereof;


 


(4) the Indenture Trustee is hereby irrevocably


appointed the agent and attorney-in-fact of the


Issuing Entity to transfer and convey its interest in


any portion of the Trust Estate in connection with a


Sale thereof, and to take all action necessary to


effect such Sale; and


 


(5) no purchaser or transferee at such a Sale shall


be bound to ascertain the Indenture Trustee's


authority, inquire into the satisfaction of any


conditions precedent or see to the application of any


monies.


 


Section 5.16 ACTION ON NOTES. The Indenture Trustee's right to seek and


recover judgment on the Notes or under this Indenture shall not be affected by


the seeking, obtaining or application of any other relief under or with respect


to this Indenture. Neither the lien of this Indenture nor any rights or remedies


of the Indenture Trustee or the Noteholders shall be impaired by the recovery of


any judgment by the Indenture Trustee against the Issuing Entity or by the levy


of any execution under such judgment upon any portion of the Trust Estate or


upon any of the assets of the Issuing Entity. Any money or property collected by


the Indenture Trustee shall be applied in accordance with Section 5.04(b).


 


Section 5.17 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)


Promptly following a request from the Indenture Trustee to do so and at the


Administrator's expense, the Issuing Entity in its capacity as holder of the


Mortgage Loans, shall take all such lawful action as the Indenture Trustee may


request to cause the Issuing Entity to compel or secure the performance and


observance by the Seller and the Master Servicer, as applicable, of each of


their obligations to the Issuing Entity under or in connection with the Mortgage


Loan Purchase Agreement and the Servicing Agreement, and to exercise any and all


rights, remedies, powers and privileges lawfully available to the Issuing Entity


under or in connection with the Mortgage Loan Purchase Agreement and the


Servicing Agreement to the extent and in the manner directed by the Indenture


Trustee, as pledgee of the Mortgage Loans, including the transmission of notices


of default on the part of the Seller or the Master Servicer thereunder and the


institution of legal or administrative actions or proceedings to compel or


secure performance by the Seller or the Master Servicer of each of their


obligations under the Mortgage Loan Purchase Agreement and the Servicing


Agreement.


 


(b) If an Event of Default has occurred and is continuing, the


Indenture Trustee, as pledgee of the Mortgage Loans, subject to the rights of


the Credit Enhancer under the Servicing Agreement may, and at the direction


(which direction shall be in writing or by telephone (confirmed in writing


promptly thereafter)) of the Holders of 66-2/3% of the Security Balances of the


Notes shall, exercise all rights, remedies, powers, privileges and claims of the


Issuing Entity against the Seller or the Master Servicer under or in connection


with the Mortgage Loan Purchase Agreement and the Servicing Agreement, including


the right or power to take any action to compel or secure performance or


observance by the Seller or the Master Servicer, as the case may be, of each of


their obligations to the Issuing Entity thereunder and to give any consent,


request, notice, direction, approval, extension or waiver under the Mortgage


Loan Purchase Agreement and the Servicing Agreement, as the case may be, and any


right of the Issuing Entity to take such action shall not be suspended.


 


ARTICLE VI


 


The Indenture Trustee


 


Section 6.01 DUTIES OF INDENTURE TRUSTEE. (a) If an Event of Default


has occurred and is continuing, the Indenture Trustee shall exercise the rights


and powers vested in it by this Indenture and use the same degree of care and


skill in their exercise as a prudent person would exercise or use under the


circumstances in the conduct of such person's own affairs.


 


(b) Except during the continuance of an Event of Default:


 


(i) the Indenture Trustee undertakes to perform such duties


and only such duties as are specifically set forth in this Indenture


and no implied covenants or obligations shall be read into this


Indenture against the Indenture Trustee; and


 


(ii) in the absence of bad faith on its part, the Indenture


Trustee may conclusively rely, as to the truth of the statements and


the correctness of the opinions expressed therein, upon certificates or


opinions furnished to the Indenture Trustee and conforming to the


requirements of this Indenture; however, the Indenture Trustee shall


examine the certificates and opinions to determine whether or not they


conform to the requirements of this Indenture.


 


(c) The Indenture Trustee may not be relieved from liability for its


own negligent action, its own negligent failure to act or its own willful


misconduct, except that:


 


(i) this paragraph does not limit the effect of paragraph (b)


of this Section 6.01;


 


(ii) the Indenture Trustee shall not be liable for any error


of judgment made in good faith by a Responsible Officer unless it is


proved that the Indenture Trustee was negligent in ascertaining the


pertinent facts; and


 


(iii) the Indenture Trustee shall not be liable with respect


to any action it takes or omits to take in good faith in accordance


with a direction received by it (A) pursuant to Section 5.11 or (B)


from the Credit Enhancer, which it is entitled to give under any of the


Basic Documents.


 


(d) The Indenture Trustee shall not be liable for interest on any money


received by it except as the Indenture Trustee may agree in writing with the


Issuing Entity.


 


(e) Money held in trust by the Indenture Trustee need not be segregated


from other funds except to the extent required by law or the terms of this


Indenture or the Trust Agreement.


 


(f) No provision of this Indenture shall require the Indenture Trustee


to expend or risk its own funds or otherwise incur financial liability in the


performance of any of its duties hereunder or in the exercise of any of its


rights or powers, if it shall have reasonable grounds to believe that repayment


of such funds or adequate indemnity against such risk or liability is not


reasonably assured to it.


 


(g) Every provision of this Indenture relating to the conduct or


affecting the liability of or affording protection to the Indenture Trustee


shall be subject to the provisions of this Section and to the provisions of the


TIA.


 


Section 6.02 RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee may


rely on any document believed by it to be genuine and to have been signed or


presented by the proper person. The Indenture Trustee need not investigate any


fact or matter stated in the document.


 


(b) Before the Indenture Trustee acts or refrains from acting, it may


require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee


shall not be liable for any action it takes or omits to take in good faith in


reliance on an Officer's Certificate or Opinion of Counsel.


 


(c) The Indenture Trustee may execute any of the trusts or powers


hereunder or perform any duties hereunder either directly or by or through


agents or attorneys or a custodian or nominee, and the Indenture Trustee shall


not be responsible for any misconduct or negligence on the part of, or for the


supervision of, any such agent, attorney, custodian or nominee appointed with


due care by it hereunder.


 


(d) The Indenture Trustee shall not be liable for any action it takes


or omits to take in good faith which it believes to be authorized or within its


rights or powers; provided, however, that the Indenture Trustee's conduct does


not constitute willful misconduct, negligence or bad faith.


 


(e) The Indenture Trustee may consult with counsel, and the advice or


opinion of counsel with respect to legal matters relating to this Indenture and


the Notes shall be full and complete authorization and protection from liability


in respect to any action taken, omitted or suffered by it hereunder in good


faith and in accordance with the advice or opinion of such counsel.


 


Section 6.03 INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture


Trustee in its individual or any other capacity may become the owner or pledgee


of Notes and may otherwise deal with the Issuing Entity or its Affiliates with


the same rights it would have if it were not Indenture Trustee. Any


Administrator, Note Registrar, co-registrar or co-paying agent may do the same


with like rights. However, the Indenture Trustee must comply with Sections 6.11


and 6.12.


 


Section 6.04 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee


shall not be responsible for and makes no representation as to the validity or


adequacy of this Indenture or the Notes, it shall not be accountable for the


Issuing Entity's use of the proceeds from the Notes, and it shall not be


responsible for any statement of the Issuing Entity in the Indenture or in any


document issued in connection with the sale of the Notes or in the Notes other


than the Indenture Trustee's certificate of authentication.


 


Section 6.05 NOTICE OF EVENT OF DEFAULT. If an Event of Default occurs


and is continuing and if it is known to a Responsible Officer of the Indenture


Trustee, the Indenture Trustee shall give notice thereof to the Credit Enhancer.


The Trustee shall mail to each Noteholder notice of the Event of Default within


90 days after it occurs. Except in the case of an Event of Default in payment of


principal of or interest on any Note, the Indenture Trustee may withhold the


notice if and so long as a committee of its Responsible Officers in good faith


determines that withholding the notice is in the interests of Noteholders.


 


Section 6.06 REPORTS BY INDENTURE TRUSTEE TO HOLDERS. The Indenture


Trustee shall deliver to each Noteholder such information as may be required to


enable such holder to prepare its federal and state income tax returns. In


addition, upon the Issuing Entity's written request, the Indenture Trustee shall


promptly furnish information reasonably requested by the Issuing Entity that is


reasonably available to the Indenture Trustee to enable the Issuing Entity to


perform its federal and state income tax reporting obligations.


 


Section 6.07 COMPENSATION AND INDEMNITY. The Issuing Entity shall or


shall cause the Administrator to pay to the Indenture Trustee on each Payment


Date reasonable compensation for its services. The Indenture Trustee's


compensation shall not be limited by any law on compensation of a trustee of an


express trust. The Issuing Entity shall or shall cause the Administrator to


reimburse the Indenture Trustee for all reasonable out-of-pocket expenses


incurred or made by it, including costs of collection, in addition to the


compensation for its services. Such expenses shall include the reasonable


compensation and expenses, disbursements and advances of the Indenture Trustee's


agents, counsel, accountants and experts. The Issuing Entity shall or shall


cause the Administrator to indemnify the Indenture Trustee against any and all


loss, liability or expense (including attorneys' fees) incurred by it in


connection with the administration of this trust and the performance of its


duties hereunder. The Indenture Trustee shall notify the Issuing Entity and the


Administrator promptly of any claim for which it may seek indemnity. Failure by


the Indenture Trustee to so notify the Issuing Entity and the Administrator


shall not relieve the Issuing Entity or the Administrator of its obligations


hereunder. The Issuing Entity shall or shall cause the Administrator to defend


any such claim, and the Indenture Trustee may have separate counsel and the


Issuing Entity shall or shall cause the Administrator to pay the fees and


expenses of such counsel. Neither the Issuing Entity nor the Administrator need


reimburse any expense or indemnify against any loss, liability or expense


incurred by the Indenture Trustee through the Indenture Trustee's own willful


misconduct, negligence or bad faith.


 


The Issuing Entity's payment obligations to the Indenture Trustee


pursuant to this Section 6.07 shall survive the discharge of this Indenture.


When the Indenture Trustee incurs expenses after the occurrence of an Event of


Default specified in Section 5.01(iv) or (v) with respect to the Issuing Entity,


the expenses are intended to constitute expenses of administration under Title


11 of the United States Code or any other applicable federal or state


bankruptcy, insolvency or similar law.


 


Section 6.08 REPLACEMENT OF INDENTURE TRUSTEE. No resignation or


removal of the Indenture Trustee and no appointment of a successor Indenture


Trustee shall become effective until the acceptance of appointment by the


successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee


may resign at any time by so notifying the Issuing Entity and the Credit


Enhancer. The Holders of a majority of Security Balances of the Notes may remove


the Indenture Trustee by so notifying the Indenture Trustee and the Credit


Enhancer and may appoint a successor Indenture Trustee. The Issuing Entity shall


remove the Indenture Trustee if:


 


(i) the Indenture Trustee fails to comply with Section 6.11;


 


(ii) the Indenture Trustee is adjudged a bankrupt or


insolvent;


 


(iii) a receiver or other public officer takes charge of the


Indenture Trustee or its property; or


 


(iv) the Indenture Trustee otherwise becomes incapable of


acting.


 


If the Indenture Trustee resigns or is removed or if a vacancy exists


in the office of Indenture Trustee for any reason (the Indenture Trustee in such


event being referred to herein as the retiring Indenture Trustee), the Issuing


Entity shall promptly appoint a successor Indenture Trustee.


 


A successor Indenture Trustee shall deliver a written acceptance of its


appointment to the retiring Indenture Trustee and to the Issuing Entity.


Thereupon, the resignation or removal of the retiring Indenture Trustee shall


become effective, and the successor Indenture Trustee shall have all the rights,


powers and duties of the Indenture Trustee under this Indenture. The successor


Indenture Trustee shall mail a notice of its succession to Noteholders. The


retiring Indenture Trustee shall promptly transfer all property held by it as


Indenture Trustee to the successor Indenture Trustee.


 


If a successor Indenture Trustee does not take office within 60 days


after the retiring Indenture Trustee resigns or is removed, the retiring


Indenture Trustee, the Issuing Entity or the Holders of a majority of Security


Balances of the Notes may petition any court of competent jurisdiction for the


appointment of a successor Indenture Trustee.


 


If the Indenture Trustee fails to comply with Section 6.11, any


Noteholder may petition any court of competent jurisdiction for the removal of


the Indenture Trustee and the appointment of a successor Indenture Trustee.


 


Notwithstanding the replacement of the Indenture Trustee pursuant to


this Section, the Issuing Entity's and the Administrator's obligations under


Section 6.07 shall continue for the benefit of the retiring Indenture Trustee.


 


Section 6.09 SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture


Trustee consolidates with, merges or converts into, or transfers all or


substantially all its corporate trust business or assets to, another corporation


or banking association, the resulting, surviving or transferee corporation


without any further act shall be the successor Indenture Trustee; provided, that


such corporation or banking association shall be otherwise qualified and


eligible under Section 6.11. The Indenture Trustee shall provide the Rating


Agencies prior written notice of any such transaction.


 


In case at the time such successor or successors by merger, conversion


or consolidation to the Indenture Trustee shall succeed to the trusts created by


this Indenture any of the Notes shall have been authenticated but not delivered,


any such successor to the Indenture Trustee may adopt the certificate of


authentication of any predecessor trustee, and deliver such Notes so


authenticated; and in case at that time any of the Notes shall not have been


authenticated, any successor to the Indenture Trustee may authenticate such


Notes either in the name of any predecessor hereunder or in the name of the


successor to the Indenture Trustee; and in all such cases such certificates


shall have the full force which it is anywhere in the Notes or in this Indenture


provided that the certificate of the Indenture Trustee shall have.


Section 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE TRUSTEE.


(a) Notwithstanding any other provisions of this Indenture, at any time, for the


purpose of meeting any legal requirement of any jurisdiction in which any part


of the Trust Estate may at the time be located, the Indenture Trustee shall have


the power and may execute and deliver all instruments to appoint one or more


Persons to act as a co-trustee or co-trustees, or separate trustee or separate


trustees, of all or any part of the Trust, and to vest in such Person or


Persons, in such capacity and for the benefit of the Noteholders, such title to


the Trust Estate, or any part hereof, and, subject to the other provisions of


this Section, such powers, duties, obligations, rights and trusts as the


Indenture Trustee may consider necessary or desirable. No co-trustee or separate


trustee here under shall be required to meet the terms of eligibility as a


successor trustee under Section 6.11 and no notice to Noteholders of the


appointment of any co-trustee or separate trustee shall be required under


Section 6.08 hereof.


 


(b) Every separate trustee and co-trustee shall, to the extent


permitted by law, be appointed and act subject to the following provisions and


conditions:


 


(i) all rights, powers, duties and obligations conferred or


imposed upon the Indenture Trustee shall be conferred or imposed upon


and exercised or performed by the Indenture Trustee and such separate


trustee or co-trustee jointly (it being understood that such separate


trustee or co-trustee is not authorized to act separately without the


Indenture Trustee joining in such act), except to the extent that under


any law of any jurisdiction in which any particular act or acts are to


be performed the Indenture Trustee shall be incompetent or unqualified


to perform such act or acts, in which event such rights, powers, duties


and obligations (including the holding of title to the Trust Estate or


any portion thereof in any such jurisdiction) shall be exercised and


performed singly by such separate trustee or co-trustee, but solely at


the direction of the Indenture Trustee;


 


(ii) no trustee hereunder shall be personally liable by reason


of any act or omission of any other trustee hereunder; and


 


(iii) the Indenture Trustee may at any time accept the


resignation of or remove any separate trustee or co-trustee.


 


(c) Any notice, request or other writing given to the Indenture Trustee


shall be deemed to have been given to each of the then separate trustees and


co-trustees, as effectively as if given to each of them. Every instrument


appointing any separate trustee or co-trustee shall refer to this Indenture and


the conditions of this Article VI. Each separate trustee and co-trustee, upon


its acceptance of the trusts conferred, shall be vested with the estates or


property specified in its instrument of appointment, either jointly with the


Indenture Trustee or separately, as may be provided therein, subject to all the


provisions of this Indenture, specifically including every provision of this


Indenture relating to the conduct of, affecting the liability of, or affording


protection to, the Indenture Trustee. Every such instrument shall be filed with


the Indenture Trustee.


 


(d) Any separate trustee or co-trustee may at any time constitute the


Indenture Trustee, its agent or attorney-in-fact with full power and authority,


to the extent not prohibited by law, to do any lawful act under or in respect of


this Indenture on its behalf and in its name. If any separate trustee or


co-trustee shall die, become incapable of acting, resign or be removed, all of


its estates, properties, rights, remedies and trusts shall vest in and be


exercised by the Indenture Trustee, to the extent permitted by law, without the


appointment of a new or successor trustee.


 


Section 6.11 ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee shall


at all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee


shall have a combined capital and surplus of at least [$50,000,000] as set forth


in its most recent published annual report of condition and it or its parent


shall have a long-term debt rating of [Baa3] or better by [Moody's]. The


Indenture Trustee shall comply with TIA ss. 310(b), including the optional


provision permitted by the second sentence of TIA ss. 310(b)(9); provided,


however, that there shall be excluded from the operation of TIA ss. 310(b)(1)


any indenture or indentures under which other securities of the Issuing Entity


are outstanding if the requirements for such exclusion set forth in TIA ss.


310(b)(1) are met.


 


Section 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUING ENTITY.


The Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor


relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned or


been removed shall be subject to TIA ss. 311(a) to the extent indicated.


 


Section 6.13 REPRESENTATION AND WARRANTY. The Indenture Trustee hereby


represents that:


 


(i) The Indenture Trustee is duly organized and validly


existing as a corporation in good standing under the laws of the State


of ___________, with power and authority to own its properties and to


conduct its business as such properties are currently owned and such


business is presently conducted.


 


(ii) The Indenture Trustee has the power and authority to


execute and deliver this Indenture and to carry out its terms; and the


execution, delivery and performance of this Indenture have been duly


authorized by the Indenture Trustee by all necessary corporate action.


 


(iii) The consummation of the transactions contemplated by


this Indenture and the fulfillment of the terms hereof do not conflict


with, result in any breach of any of the terms and provisions of, or


constitute (with or without notice or lapse of time) a default under,


the articles of incorporation or bylaws of the Indenture Trustee or any


agreement or other instrument to which the Indenture Trustee is a party


or by which it is bound.


 


(iv) To the Indenture Trustee's best knowledge, there are no


proceedings or investigations pending or threatened before any court,


regulatory body, administrative agency or other governmental


instrumentality having jurisdiction over the Indenture Trustee or its


properties: (A) asserting the invalidity of this Indenture (B) seeking


to prevent the consummation of any of the transactions contemplated by


this Indenture or (C) seeking any determination or ruling that might


materially and adversely affect the performance by the Indenture


Trustee of its obligations under, or the validity or enforceability of,


this Indenture.


 


Section 6.14 DIRECTIONS TO INDENTURE TRUSTEE. The Indenture Trustee is


hereby directed:


 


(a) to accept the pledge of the Mortgage Loans and hold the assets of


the Trust in trust for the Noteholders;


 


(b) to issue, execute and deliver the Notes substantially in the form


prescribed by Exhibit A in accordance with the terms of this Indenture; and


 


(c) to take all other actions as shall be required to be taken by the


terms of this Indenture.


 


Section 6.15 [NO CONSENT TO CERTAIN ACTS OF DEPOSITOR. The Indenture


Trustee shall not consent to any action proposed to be taken by the Depositor


pursuant to Article [_________] of the Depositor's Restated Certificate of


Incorporation.]


 


Section 6.16 INDENTURE TRUSTEE MAY OWN SECURITIES. The Indenture


Trustee, in its individual or any other capacity may become the owner or pledgee


of Securities with the same rights it would have if it were not Indenture


Trustee.


 


ARTICLE VII


 


Noteholders' Lists and Reports


 


Section 7.01 ISSUING ENTITY TO FURNISH INDENTURE TRUSTEE NAMES AND


ADDRESSES OF NOTEHOLDERS. The Issuing Entity will furnish or cause to be


furnished to the Indenture Trustee (a) not more than five days after each Record


Date, a list, in such form as the Indenture Trustee may reasonably require, of


the names and addresses of the Holders of Notes as of such Record Date, (b) at


such other times as the Indenture Trustee and the Credit Enhancer may request in


writing, within 30 days after receipt by the Issuing Entity of any such request,


a list of similar form and content as of a date not more than 10 days prior to


the time such list is furnished; provided, however, that so long as the


Indenture Trustee is the Note Registrar, no such list shall be required to be


furnished.


 


Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO


NOTEHOLDERS. (a) The Indenture Trustee shall preserve, in as current a form as


is reasonably practicable, the names and addresses of the Holders of Notes


contained in the most recent list furnished to the Indenture Trustee as provided


in Section 7.01 and the names and addresses of Holders of Notes received by the


Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may


destroy any list furnished to it as provided in such Section 7.01 upon receipt


of a new list so furnished.


 


(b) Noteholders may communicate pursuant to TIA ss. 312(b) with other


Noteholders with respect to their rights under this Indenture or under the


Notes.


 


(c) The Issuing Entity, the Indenture Trustee and the Note Registrar


shall have the protection of TIA ss. 312(c).


 


Section 7.03 REPORTS BY ISSUING ENTITY. (a) The Issuing Entity shall:


 


(i) file with the Indenture Trustee, within 15 days after the


Issuing Entity is required to file the same with the Commission, copies


of the annual reports and of the information, documents and other


reports (or copies of such portions of any of the foregoing as the


Commission may from time to time by rules and regulations prescribe)


that the Issuing Entity may be required to file with the Commission


pursuant to Section 13 or 15(d) of the Exchange Act;


 


(ii) file with the Indenture Trustee, and the Commission in


accordance with rules and regulations prescribed from time to time by


the Commission such additional information, documents and reports with


respect to compliance by the Issuing Entity with the conditions and


covenants of this Indenture as may be required from time to time by


such rules and regulations; and


 


(iii) supply to the Indenture Trustee (and the Indenture


Trustee shall transmit by mail to all Noteholders described in TIA ss.


313(c)) such summaries of any information, documents and reports


required to be filed by the Issuing Entity pursuant to clauses (i) and


(ii) of this Section 7.03(a) and by rules and regulations prescribed


from time to time by the Commission.


 


(b) Unless the Issuing Entity otherwise determines, the fiscal year of


the Issuing Entity shall end on December 31 of each year.


 


Section 7.04 REPORTS BY INDENTURE TRUSTEE. If required by TIA ss.


313(a), within 60 days after each January 1 beginning with January 1, 20__, the


Indenture Trustee shall mail to each Noteholder as required by TIA ss. 313(c)


and to the Credit Enhancer a brief report dated as of such date that complies


with TIA ss. 313(a). The Indenture Trustee also shall comply with TIA ss.


313(b).


 


A copy of each report at the time of its mailing to Noteholders shall


be filed by the Indenture Trustee with the Commission and each stock exchange,


if any, on which the Notes are listed. The Issuing Entity shall notify the


Indenture Trustee if and when the Notes are listed on any stock exchange.


 


Section 7.05 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.


 


(a) (i) Within 15 days after each Distribution Date, the Indenture


Trustee shall, in accordance with industry standards, file with the Commission


via the Electronic Data Gathering and Retrieval System ("EDGAR"), a Distribution


Report on Form 10-D, signed by the Servicer, with a copy of the monthly


statement to be furnished by the Indenture Trustee to the Noteholders for such


Distribution Date and detailing all data elements specified in Item 1121(a) of


Regulation AB as part of the monthly statement; provided that the Indenture


Trustee shall have received no later than 2 days prior to the date such


Distribution Report on Form 10-D is required to be filed, all information


required to be provided to the Indenture Trustee as described in clause (a)(iv)


below.


 


(ii) The Indenture Trustee will prepare and file Current Reports on


Form 8-K in respect of the Trust, signed by the Servicer, as and when required;


provided, that, the Indenture Trustee shall have received no later than one


Business Day prior to the filing deadline for such Current Report, all


information, data, and exhibits required to be provided or filed with such


Current Report and required to be provided to the Indenture Trustee as described


in clause (a)(iv) below.


 


(iii) Prior to January 30 in each year commencing in 2007, the


Indenture Trustee shall, in accordance with industry standards, file a Form 15


Suspension Notice with respect to the Trust Fund, if applicable. Prior to (x)


March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have


been filed, prior to March 15 of each year thereafter, the Servicer shall


provide the Indenture Trustee with an Annual Compliance Statement, together with


a copy of the Assessment of Compliance and Attestation Report to be delivered by


the Servicer pursuant to the Servicing Agreement (including with respect to any


subservicer or subcontractor, if required to be filed). Prior to (x) March 31,


2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed,


March 31 of each year thereafter, the Indenture Trustee shall, subject to


subsection (d) below, file a Form 10-K, in substance conforming to industry


standards, with respect to the Trust Fund. Such Form 10-K shall include the


Assessment of Compliance, Attestation Report, Annual Compliance Statements and


other documentation provided by the Servicer pursuant to the Servicing Agreement


(including with respect to any subservicer or subcontractor, if required to be


filed) and with respect to the Indenture Trustee and the Custodian, and the Form


10-K certification signed by the Depositor; provided that the Indenture Trustee


shall have received no later than March 15 of each calendar year prior to the


filing deadline for the Form 10-K all information, data and exhibits required to


be provided or filed with such Form 10-K and required to be provided to the


Indenture Trustee as described in clause (a)(iv) below.


 


(iv) As to each item of information required to be included in any Form


10-D, Form 8-K or Form 10-K, the Indenture Trustee's obligation to include the


information in the applicable report is subject to receipt from the entity that


is indicated in Exhibit C as the responsible party for providing that


information, if other than the Indenture Trustee, as and when required as


described above. Each of the Servicer, Seller and Depositor hereby agree to


notify and provide to the Indenture Trustee all information that is required to


be included in any Form 10-D, Form 8-K or Form 10-K, with respect to which that


entity is indicated in Exhibit C as the responsible party for providing that


information. The Swap Provider will be obligated pursuant to the Swap Agreement


to provide to the Indenture Trustee any information that may be required to be


included in any Form 10-D, Form 8-K or Form 10-K. The Indenture Trustee shall be


responsible for determining the significance percentage (as defined in Item 1115


of Regulation AB) of the Swap Provider at any time. The Servicer shall be


responsible for determining the pool concentration applicable to any subservicer


or originator at any time, for purposes of disclosure as required by Items 1117


and 1119 of Regulation AB.


 


The Depositor hereby grants to the Servicer a limited power of attorney to sign


each Form 10-D, Form 8-K and Form 10-K on behalf of the Depositor. Such power of


attorney shall continue until either the earlier of (x) receipt by the Servicer


from the Depositor of written termination of such power of attorney and (y) the


termination of the Trust Fund. The Depositor agrees to promptly furnish to the


Indenture Trustee, from time to time upon request, such further information,


reports and financial statements within its control related to this Indenture,


the Mortgage Loans as the Indenture Trustee reasonably deems appropriate to


prepare and file all necessary reports with the Commission. The Indenture


Trustee shall have no responsibility to file any items other than those


specified in this Section 7.05; provided, however, the Indenture Trustee will


cooperate with the Depositor in connection with any additional filings with


respect to the Trust Fund as the Depositor deems necessary under the Securities


Exchange Act of 1934, as amended (the "Exchange Act"). Copies of all reports


filed by the Indenture Trustee under the Exchange Act shall be sent to: the


Depositor c/o _____________, Attn: _____________, _____________, _____________,


_____________. Fees and expenses incurred by the Indenture Trustee in connection


with this Section 7.05 shall not be reimbursable from the Trust Fund.


 


(b) In connection with the filing of any 10-K hereunder, the Indenture


Trustee shall sign a certification (in the form attached hereto as Exhibit B)


for the Depositor regarding certain aspects of the Form 10-K certification


signed by the Depositor, provided, however, that the Indenture Trustee shall not


be required to undertake an analysis of any accountant's report attached as an


exhibit to the Form 10-K.


 


(c) In connection with the filing of any 10-K hereunder, the Servicer


shall sign a certification (in the form attached hereto as Exhibit B) for the


benefit of the Depositor regarding certain aspects of the Form 10-K


certification signed by the Depositor, provided, however, that the Servicer


shall not be required to undertake an analysis of any accountant's report


attached as an exhibit to the Form 10-K.


 


(d) The Indenture Trustee shall indemnify and hold harmless the


Depositor and its officers, directors and affiliates from and against any


losses, damages, penalties, fines, forfeitures, reasonable and necessary legal


fees and related costs, judgments and other costs and expenses arising out of or


based upon a breach of the Indenture Trustee's obligations under this Section


7.05 or the Indenture Trustee's negligence, bad faith or willful misconduct in


connection therewith.


 


The Depositor shall indemnify and hold harmless the Indenture Trustee


and its officers, directors and affiliates from and against any losses, damages,


penalties, fines, forfeitures, reasonable and necessary legal fees and related


costs, judgments and other costs and expenses arising out of or based upon a


breach of the obligations of the Depositor under this Section 7.05 or the


Depositor's negligence, bad faith or willful misconduct in connection therewith.


 


The Servicer shall indemnify and hold harmless the Indenture Trustee


and the Depositor and their respective officers, directors and affiliates from


and against any losses, damages, penalties, fines, forfeitures, reasonable and


necessary legal fees and related costs, judgments and other costs and expenses


arising out of or based upon a breach of the obligations of the Servicer under


this Section 7.05 or the Servicer's negligence, bad faith or willful misconduct


in connection therewith.


 


If the indemnification provided for herein is unavailable or


insufficient to hold harmless the Depositor or the Indenture Trustee, as


applicable, then the defaulting party, in connection with a breach of its


respective obligations under this Section 7.05 or its respective negligence, bad


faith or willful misconduct in connection therewith, agrees that it shall


contribute to the amount paid or payable by the other parties as a result of the


losses, claims, damages or liabilities of the other party in such proportion as


is appropriate to reflect the relative fault and the relative benefit of the


Depositor on the one hand and the Indenture Trustee on the other.


 


(e) Nothing shall be construed from the foregoing subsections (a), (b)


and (c) to require the Indenture Trustee or any officer, director or Affiliate


thereof to sign any Form 10-K or any certification contained therein.


Furthermore, the inability of the Indenture Trustee to file a Form 10-K as a


result of the lack of required information as set forth in Section 7.05(a) or


required signatures on such Form 10-K or any certification contained therein


shall not be regarded as a breach by the Indenture Trustee of any obligation


under this Indenture.


 


This Section 7.05 may be amended without the consent of the


Noteholders.


 


ARTICLE VIII


 


Accounts, Disbursements and Releases


 


Section 8.01 COLLECTION OF MONEY. Except as otherwise expressly


provided herein, the Indenture Trustee may demand payment or delivery of, and


shall receive and collect, directly and without intervention or assistance of


any fiscal agent or other intermediary, all money and other property payable to


or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture


Trustee shall apply all such money received by it as provided in this Indenture.


Except as otherwise expressly provided in this Indenture, if any default occurs


in the making of any payment or performance under any agreement or instrument


that is part of the Trust Estate, the Indenture Trustee may take such action as


may be appropriate to enforce such payment or performance, including the


institution and prosecution of appropriate Proceedings. Any such action shall be


without prejudice to any right to claim a Default or Event of Default under this


Indenture and any right to proceed thereafter as provided in Article V.


 


Section 8.02 TRUST ACCOUNTS. (a) On or prior to the Closing Date, the


Issuing Entity shall cause the Indenture Trustee to establish and maintain, in


the name of the Indenture Trustee, for the benefit of the Noteholders and the


Certificate Paying Agent, on behalf of the Certificateholders and the Credit


Enhancer, the Payment Account as provided in Section 3.01 of this Indenture.


 


(b) All monies deposited from time to time in the Payment Account


pursuant to the Servicing Agreement and all deposits therein pursuant to this


Indenture are for the benefit of the Noteholders and the Certificate Paying


Agent, on behalf of the Certificateholders and all investments made with such


monies including all income or other gain from such investments are for the


benefit of the Master Servicer as provided by the Servicing Agreement.


 


On each Payment Date during the Funding Period the Indenture Trustee


shall withdraw Net Principal Collections from the Payment Account and deposit


Net Principal Collections to the Funding Account.


 


On each Payment Date, the Indenture Trustee shall distribute all


amounts on deposit in the Payment Account (after giving effect to the withdrawal


referred to in the preceding paragraph) to Noteholders in respect of the Notes


and in its capacity as Certificate Paying Agent to Certificateholders in the


order of priority set forth in Section 3.05 (except as otherwise provided in


Section 5.04(b).


 


The Master Servicer may direct the Indenture Trustee to invest any


funds in the Payment Account in Eligible Investments maturing no later than the


Business Day preceding each Payment Date and shall not be sold or disposed of


prior to the maturity. Unless otherwise instructed by the Master Servicer, the


Indenture Trustee shall invest all funds in the Payment Account in Eligible


Investments.


 


(c) On or before the Closing Date the Issuing Entity shall open, at the


Corporate Trust Office, an account which shall be the "Funding Account". The


Master Servicer may direct the Indenture Trustee to invest any funds in the


Funding Account in Eligible Investments maturing no later than the Business Day


preceding each Payment Date and shall not be sold or disposed of prior to the


maturity. Unless otherwise instructed by the Master Servicer, the Indenture


Trustee shall invest all funds in the Payment Account in its Corporate Trust


Short Term Investment Fund so long as it is an Eligible Investment. During the


Funding Period, any amounts received by the Indenture Trustee in respect of Net


Principal Collections for deposit in the Funding Account, together with any


Eligible Investments in which such monies are or will be invested or reinvested


during the term of the Notes, shall be held by the Indenture Trustee in the


Funding Account as part of the Trust Estate, subject to disbursement and


withdrawal as herein provided: Amounts on deposit in the Funding Account in


respect of Net Principal Collections may be withdrawn on each Deposit Date and


(1) paid to the Issuing Entity in payment for Additional Loans by the deposit of


such amount to the Collection Account and (2) at the end of the Funding Period


any amounts remaining in the Funding Account after the withdrawal called for by


clause (1) shall be deposited in the Payment Account to be included in the


payment of principal on the Payment Date that is the last day of the Funding


Period.


 


(d) (i) Any investment in the institution with which the Funding


Account is maintained may mature on such Payment Date and (ii) any other


investment may mature on such Payment Date if the Indenture Trustee shall


advance funds on such Payment Date to the Funding Account in the amount payable


on such investment on such Payment Date, pending receipt thereof to the extent


necessary to make distributions on the Notes and the Certificates) and shall not


be sold or disposed of prior to maturity.


 


Section 8.03 OFFICER'S CERTIFICATE. The Indenture Trustee shall receive


at least [seven] days notice when requested by the Issuing Entity to take any


action pursuant to Section 8.05(a), accompanied by copies of any instruments to


be executed, and the Indenture Trustee shall also require, as a condition to


such action, an Officer's Certificate, in form and substance satisfactory to the


Indenture Trustee, stating the legal effect of any such action, outlining the


steps required to complete the same, and concluding that all conditions


precedent to the taking of such action have been complied with.


 


Section 8.04 TERMINATION UPON DISTRIBUTION TO NOTEHOLDERS. This


Indenture and the respective obligations and responsibilities of the Issuing


Entity and the Indenture Trustee created hereby shall terminate upon the


distribution to Noteholders, Certificate Paying Agent, on behalf of the


Certificateholders and the Indenture Trustee of all amounts required to be


distributed pursuant to Article III; provided, however, that in no event shall


the trust created hereby continue beyond the expiration of 21 years from the


death of the survivor of the descendants of Joseph P. Kennedy, the late


ambassador of the United States to the Court of St. James, living on the date


hereof.


 


Section 8.05 RELEASE OF TRUST ESTATE. (a) Subject to the payment of its


fees and expenses, the Indenture Trustee may, and when required by the


provisions of this Indenture shall, execute instruments to release property from


the lien of this Indenture, or convey the Indenture Trustee's interest in the


same, in a manner and under circumstances that are not inconsistent with the


provisions of this Indenture. No party relying upon an instrument executed by


the Indenture Trustee as provided in Article VIII hereunder shall be bound to


ascertain the Indenture Trustee's authority, inquire into the satisfaction of


any conditions precedent, or see to the application of any monies.


 


(b) The Indenture Trustee shall, at such time as (i) there are no Notes


Outstanding, (ii) all sums due the Indenture Trustee pursuant to this Indenture


have been paid, and (iii) all sums due the Credit Enhancer have been paid,


release any remaining portion of the Trust Estate that secured the Notes from


the lien of this Indenture.


 


(c) [ The Indenture Trustee shall release property from the lien of


this Indenture pursuant to this Section 8.05 only upon receipt of an request


from the Issuing Entity accompanied by an [Officers' Certificate], [an Opinion


of Counsel,] and a letter from the Credit Enhancer, stating that the Credit


Enhancer has no objection to such request from the Issuing Entity.]


 


Section 8.06 SURRENDER OF NOTES UPON FINAL PAYMENT. By acceptance of


any Note, the Holder thereof agrees to surrender such Note to the Indenture


Trustee promptly, prior to such Noteholder's receipt of the final payment


thereon.


 


ARTICLE IX


 


Supplemental Indentures


 


Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.


(a) Without the consent of the Holders of any Notes but with the consent of the


Credit Enhancer and prior notice to the Rating Agencies and the Credit Enhancer,


the Issuing Entity and the Indenture Trustee, when authorized by an Issuer


Request, at any time and from time to time, may enter into one or more


indentures supplemental hereto (which shall conform to the provisions of the


Trust Indenture Act as in force at the date of the execution thereof), in form


satisfactory to the Indenture Trustee, for any of the following purposes:


 


(i) to correct or amplify the description of any property at


any time subject to the lien of this Indenture, or better to assure,


convey and confirm unto the Indenture Trustee any property subject or


required to be subjected to the lien of this Indenture, or to subject


to the lien of this Indenture additional property;


 


(ii) to evidence the succession, in compliance with the


applicable provisions hereof, of another person to the Issuing Entity,


and the assumption by any such successor of the covenants of the


Issuing Entity herein and in the Notes contained;


 


(iii) to add to the covenants of the Issuing Entity, for the


benefit of the Holders of the Notes, or to surrender any right or power


herein conferred upon the Issuing Entity;


 


(iv) to convey, transfer, assign, mortgage or pledge any


property to or with the Indenture Trustee;


 


(v) to cure any ambiguity, to correct or supplement any


provision herein or in any supplemental indenture that may be


inconsistent with any other provision herein or in any supplemental


indenture;


 


(vi) to make any other provisions with respect to matters or


questions arising under this Indenture or in any supplemental


indenture; provided, that such action shall not materially and


adversely affect the interests of the Holders of the Notes;


 


(vii) to evidence and provide for the acceptance of the


appointment hereunder by a successor trustee with respect to the Notes


and to add to or change any of the provisions of this Indenture as


shall be necessary to facilitate the administration of the trusts


hereunder by more than one trustee, pursuant to the requirements of


Article VI; or


 


(viii) to modify, eliminate or add to the provisions of this


Indenture to such extent as shall be necessary to effect the


qualification of this Indenture under the TIA or under any similar


federal statute hereafter enacted and to add to this Indenture such


other provisions as may be expressly required by the TIA;


 


provided, however, that no such indenture supplements shall be entered into


unless the Indenture Trustee shall have received an Opinion of Counsel that


entering into such indenture supplement will not have any material adverse tax


consequences to the Noteholders.


 


The Indenture Trustee is hereby authorized to join in the execution of


any such supplemental indenture and to make any further appropriate agreements


and stipulations that may be therein contained.


 


(b) The Issuing Entity and the Indenture Trustee, when authorized by an


Issuer Request, may, also without the consent of any of the Holders of the Notes


but with the consent of the Credit Enhancer and prior notice to the Rating


Agencies and the Credit Enhancer, enter into an indenture or indentures


supplemental hereto for the purpose of adding any provisions to, or changing in


any manner or eliminating any of the provisions of, this Indenture or of


modifying in any manner the rights of the Holders of the Notes under this


Indenture; provided, however, that such action shall not, as evidenced by an


Opinion of Counsel, (i) adversely affect in any material respect the interests


of any Noteholder or (ii) cause the Issuing Entity to be subject to an entity


level tax.


 


Section 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. The


Issuing Entity and the Indenture Trustee, when authorized by an Issuer Request,


also may, with prior notice to the Rating Agencies and, with the written consent


of the Credit Enhancer and with the consent of the Holders of not less than a


majority of the Security Balances of each Class of Notes affected thereby, by


Act of such Holders delivered to the Issuing Entity and the Indenture Trustee,


enter into an indenture or indentures supplemental hereto for the purpose of


adding any provisions to, or changing in any manner or eliminating any of the


provisions of, this Indenture or of modifying in any manner the rights of the


Holders of the Notes under this Indenture; provided, however, that no such


supplemental indenture shall, without the consent of the Holder of each Note


affected thereby:


 


(i) change the date of payment of any installment of principal


of or interest on any Note, or reduce the principal amount thereof or


the interest rate thereon, change the provisions of this Indenture


relating to the application of collections on, or the proceeds of the


sale of, the Trust Estate to payment of principal of or interest on the


Notes, or change any place of payment where, or the coin or currency in


which, any Note or the interest thereon is payable, or impair the right


to institute suit for the enforcement of the provisions of this


Indenture requiring the application of funds available therefor, as


provided in Article V, to the payment of any such amount due on the


Notes on or after the respective due dates thereof;


 


(ii) reduce the percentage of the Security Balances of the


Notes, the consent of the Holders of which is required for any such


supplemental indenture, or the consent of the Holders of which is


required for any waiver of compliance with certain provisions of this


Indenture or certain defaults hereunder and their consequences provided


for in this Indenture;


 


(iii) modify or alter the provisions of the proviso to the


definition of the term "Outstanding" or modify or alter the exception


in the definition of the term "Holder";


 


(iv) reduce the percentage of the Security Balances of the


Notes required to direct the Indenture Trustee to direct the Issuing


Entity to sell or liquidate the Trust Estate pursuant to Section 5.04;


 


(v) modify any provision of this Section 9.02 except to


increase any percentage specified herein or to provide that certain


additional provisions of this Indenture or the Basic Documents cannot


be modified or waived without the consent of the Holder of each Note


affected thereby;


 


(vi) modify any of the provisions of this Indenture in such


manner as to affect the calculation of the amount of any payment of


interest or principal due on any Note on any Payment Date (including


the calculation of any of the individual components of such


calculation); or


 


(vii) permit the creation of any lien ranking prior to or on a


parity with the lien of this Indenture with respect to any part of the


Trust Estate or, except as otherwise permitted or contemplated herein,


terminate the lien of this Indenture on any property at any time


subject hereto or deprive the Holder of any Note of the security


provided by the lien of this Indenture; and provided, further, that


such action shall not, as evidenced by an Opinion of Counsel, cause the


Issuing Entity to be subject to an entity level tax.


 


The Indenture Trustee may in its discretion determine whether or not


any Notes would be affected by any supplemental indenture and any such


determination shall be conclusive upon the Holders of all Notes, whether


theretofore or thereafter authenticated and delivered hereunder. The Indenture


Trustee shall not be liable for any such determination made in good faith.


 


It shall not be necessary for any Act of Noteholders under this Section


9.02 to approve the particular form of any proposed supplemental indenture, but


it shall be sufficient if such Act shall approve the substance thereof.


 


Promptly after the execution by the Issuing Entity and the Indenture


Trustee of any supplemental indenture pursuant to this Section 9.02, the


Indenture Trustee shall mail to the Holders of the Notes to which such amendment


or supplemental indenture relates a notice setting forth in general terms the


substance of such supplemental indenture. Any failure of the Indenture Trustee


to mail such notice, or any defect therein, shall not, however, in any way


impair or affect the validity of any such supplemental indenture.


 


Section 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or


permitting the additional trusts created by, any supplemental indenture


permitted by this Article IX or the modification thereby of the trusts created


by this Indenture, the Indenture Trustee shall be entitled to receive, and


subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an


Opinion of Counsel stating that the execution of such supplemental indenture is


authorized or permitted by this Indenture. The Indenture Trustee may, but shall


not be obligated to, enter into any such supplemental indenture that affects the


Indenture Trustee's own rights, duties, liabilities or immunities under this


Indenture or otherwise.


 


Section 9.04 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of


any supplemental indenture pursuant to the provisions hereof, this Indenture


shall be and shall be deemed to be modified and amended in accordance therewith


with respect to the Notes affected thereby, and the respective rights,


limitations of rights, obligations, duties, liabilities and immunities under


this Indenture of the Indenture Trustee, the Issuing Entity and the Holders of


the Notes shall thereafter be determined, exercised and enforced hereunder


subject in all respects to such modifications and amendments, and all the terms


and conditions of any such supplemental indenture shall be and be deemed to be


part of the terms and conditions of this Indenture for any and all purposes.


 


Section 9.05 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of


this Indenture and every supplemental indenture executed pursuant to this


Article IX shall conform to the requirements of the Trust Indenture Act as then


in effect so long as this Indenture shall then be qualified under the Trust


Indenture Act.


 


Section 9.06 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes


authenticated and delivered after the execution of any supplemental indenture


pursuant to this Article IX may, and if required by the Indenture Trustee shall,


bear a notation in form approved by the Indenture Trustee as to any matter


provided for in such supplemental indenture. If the Issuing Entity or the


Indenture Trustee shall so determine, new Notes so modified as to conform, in


the opinion of the Indenture Trustee and the Issuing Entity, to any such


supplemental indenture may be prepared and executed by the Issuing Entity and


authenticated and delivered by the Indenture Trustee in exchange for Outstanding


Notes.


 


ARTICLE X


 


Miscellaneous


 


Section 10.01 COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a) Upon any


application or request by the Issuing Entity to the Indenture Trustee to take


any action under any provision of this Indenture, the Issuing Entity shall


furnish to the Indenture Trustee and to the Credit Enhancer (i) an Officer's


Certificate stating that all conditions precedent, if any, provided for in this


Indenture relating to the proposed action have been complied with and (ii) an


Opinion of Counsel stating that in the opinion of such counsel all such


conditions precedent, if any, have been complied with, except that, in the case


of any such application or request as to which the furnishing of such documents


is specifically required by any provision of this Indenture, no additional


certificate or opinion need be furnished.


 


Every certificate or opinion with respect to compliance with a


condition or covenant provided for in this Indenture shall include:


 


(1) a statement that each signatory of such


certificate or opinion has read or has caused to be


read such covenant or condition and the definitions


herein relating thereto;


 


(2) a brief statement as to the nature and scope of


the examination or investigation upon which the


statements or opinions contained in such certificate


or opinion are based;


 


(3) a statement that, in the opinion of each such


signatory, such signatory has made such examination


or investigation as is necessary to enable such


signatory to express an informed opinion as to


whether or not such covenant or condition has been


complied with;


 


(4) a statement as to whether, in the opinion of each


such signatory, such condition or covenant has been


complied with; and


 


(5) if the Signer of such Certificate or Opinion is


required to be Independent, the Statement required by


the definition of the term "Independent".


 


(b) (i) Prior to the deposit of any Collateral or other property or


securities with the Indenture Trustee that is to be made the basis for the


release of any property or securities subject to the lien of this Indenture, the


Issuing Entity shall, in addition to any obligation imposed in Section 10.01(a)


or elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's


Certificate certifying or stating the opinion of each person signing such


certificate as to the fair value (within 90 days of such deposit) to the Issuing


Entity of the Collateral or other property or securities to be so deposited.


 


(ii) Whenever the Issuing Entity is required to furnish to the


Indenture Trustee an Officer's Certificate certifying or stating the


opinion of any signer thereof as to the matters described in clause (i)


above, the Issuing Entity shall also deliver to the Indenture Trustee


an Independent Certificate as to the same matters, if the fair value to


the Issuing Entity of the securities to be so deposited and of all


other such securities made the basis of any such withdrawal or release


since the commencement of the then-current fiscal year of the Issuing


Entity, as set forth in the certificates delivered pursuant to clause


(i) above and this clause (ii), is 10% or more of the Security Balances


of the Notes, but such a certificate need not be furnished with respect


to any securities so deposited, if the fair value thereof to the


Issuing Entity as set forth in the related Officer's Certificate is


less than $25,000 or less than one percent of the Security Balances of


the Notes.


 


(iii) Whenever any property or securities are to be released


from the lien of this Indenture, the Issuing Entity shall also furnish


to the Indenture Trustee an Officer's Certificate certifying or stating


the opinion of each person signing such certificate as to the fair


value (within 90 days of such release) of the property or securities


proposed to be released and stating that in the opinion of such person


the proposed release will not impair the security under this Indenture


in contravention of the provisions hereof.


 


(iv) Whenever the Issuing Entity is required to furnish to the


Indenture Trustee an Officer's Certificate certifying or stating the


opinion of any signer thereof as to the matters described in clause


(iii) above, the Issuing Entity shall also furnish to the Indenture


Trustee an Independent Certificate as to the same matters if the fair


value of the property or securities and of all other property, other


than property as contemplated by clause (v) below or securities


released from the lien of this Indenture since the commencement of the


then-current calendar year, as set forth in the certificates required


by clause (iii) above and this clause (iv), equals 10% or more of the


Security Balances of the Notes, but such certificate need not be


furnished in the case of any release of property or securities if the


fair value thereof as set forth in the related Officer's Certificate is


less than $25,000 or less than one percent of the then Security


Balances of the Notes.


 


(v) Notwithstanding any provision of this Indenture, the


Issuing Entity may, without compliance with the requirements of the


other provisions of this Section 10.01, (A) collect, sell or otherwise


dispose of the Mortgage Loans as and to the extent permitted or


required by the Basic Documents or (B) make cash payments out of the


Payment Account as and to the extent permitted or required by the Basic


Documents [, so long as the Issuing Entity shall deliver to the


Indenture Trustee every six months, commencing _____________, an


Officer's Certificate of the Issuing Entity stating that all the


dispositions of Collateral described in clauses (A) or (B) above that


occurred during the preceding six calendar months were in the ordinary


course of the Issuing Entity's business and that the proceeds thereof


were applied in accordance with the Basic Documents].


 


Section 10.02 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any


case where several matters are required to be certified by, or covered by an


opinion of, any specified Person, it is not necessary that all such matters be


certified by, or covered by the opinion of, only one such Person, or that they


be so certified or covered by only one document, but one such Person may certify


or give an opinion with respect to some matters and one or more other such


Persons as to other matters, and any such Person may certify or give an opinion


as to such matters in one or several documents.


 


Any certificate or opinion of an Authorized Officer of the Issuing


Entity may be based, insofar as it relates to legal matters, upon a certificate


or opinion of, or representations by, counsel, unless such officer knows, or in


the exercise of reasonable care should know, that the certificate or opinion or


representations with respect to the matters upon which his certificate or


opinion is based are erroneous. Any such certificate of an Authorized Officer or


Opinion of Counsel may be based, insofar as it relates to factual matters, upon


a certificate or opinion of, or representations by, an officer or officers of


the Seller, the Issuing Entity or the Administrator, stating that the


information with respect to such factual matters is in the possession of the


Seller, the Issuing Entity or the Administrator, unless such counsel knows, or


in the exercise of reasonable care should know, that the certificate or opinion


or representations with respect to such matters are erroneous.


 


Where any Person is required to make, give or execute two or more


applications, requests, consents, certificates, statements, opinions or other


instruments under this Indenture, they may, but need not, be consolidated and


form one instrument.


 


Whenever in this Indenture, in connection with any application or


certificate or report to the Indenture Trustee, it is provided that the Issuing


Entity shall deliver any document as a condition of the granting of such


application, or as evidence of the Issuing Entity's compliance with any term


hereof, it is intended that the truth and accuracy, at the time of the granting


of such application or at the effective date of such certificate or report (as


the case may be), of the facts and opinions stated in such document shall in


such case be conditions precedent to the right of the Issuing Entity to have


such application granted or to the sufficiency of such certificate or report.


The foregoing shall not, however, be construed to affect the Indenture Trustee's


right to rely upon the truth and accuracy of any statement or opinion contained


in any such document as provided in Article VI.


 


Section 10.03 ACTS OF NOTEHOLDERS. (a) Any request, demand,


authorization, direction, notice, consent, waiver or other action provided by


this Indenture to be given or taken by Noteholders may be embodied in and


evidenced by one or more instruments of substantially similar tenor signed by


such Noteholders in person or by agents duly appointed in writing; and except as


herein otherwise expressly provided such action shall become effective when such


instrument or instruments are delivered to the Indenture Trustee, and, where it


is hereby expressly required, to the Issuing Entity. Such instrument or


instruments (and the action embodied therein and evidenced thereby) are herein


sometimes referred to as the "Act" of the Noteholders signing such instrument or


instruments. Proof of execution of any such instrument or of a writing


appointing any such agent shall be sufficient for any purpose of this Indenture


and (subject to Section 6.01) conclusive in favor of the Indenture Trustee and


the Issuing Entity, if made in the manner provided in this Section 10.03.


 


(b) The fact and date of the execution by any person of any such


instrument or writing may be proved in any manner that the Indenture Trustee


deems sufficient.


 


(c) The ownership of Notes shall be proved by the Note Registrar.


 


(d) Any request, demand, authorization, direction, notice, consent,


waiver or other action by the Holder of any Notes shall bind the Holder of every


Note issued upon the registration thereof or in exchange therefor or in lieu


thereof, in respect of anything done, omitted or suffered to be done by the


Indenture Trustee or the Issuing Entity in reliance thereon, whether or not


notation of such action is made upon such Note.


 


Section 10.04 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUING ENTITY,


CREDIT ENHANCER AND RATING AGENCIES. Any request, demand, authorization,


direction, notice, consent, waiver or Act of Note holders or other documents


provided or permitted by this Indenture shall be in writing and if such request,


demand, authorization, direction, notice, consent, waiver or act of Noteholders


is to be made upon, given or furnished to or filed with:


 


(i) the Indenture Trustee by any Noteholder or by the Issuing


Entity shall be sufficient for every purpose hereunder if made, given,


furnished or filed in writing to or with the Indenture Trustee at the


Corporate Trust Office. The Indenture Trustee shall promptly transmit


any notice received by it from the Noteholders to the Issuing Entity,


or


 


(ii) the Issuing Entity by the Indenture Trustee or by any


Noteholder shall be sufficient for every purpose hereunder if in


writing and mailed first-class, postage prepaid to the Issuing Entity


addressed to: Opteum Mortgage Acceptance Corporation MBN Trust Series 20__ -


______, in care of [Name of Owner Trustee] _________________,


__________, ______________, Attention of


_________________________________________ with a copy to the


Administrator at ________________ Attention: __________


__________________________, or at any other address previously


furnished in writing to the Indenture Trustee by the Issuing Entity or


the Administrator. The Issuing Entity shall promptly transmit any


notice received by it from the Noteholders to the Indenture Trustee, or


 


(iii) the Credit Enhancer by the Issuing Entity, the Indenture


Trustee or by any Noteholders shall be sufficient for every purpose


hereunder to in writing and mailed, first-class postage pre-paid, or


personally delivered or telecopied to: [Name of Credit Enhancer],


________________, ________, _______________, Attention:


_________________, ___________________________, Telephone


______________. Telecopier ______________. The Credit Enhancer shall


promptly transmit any notice received by it from the Issuing Entity,


the Indenture Trustee or the Noteholders to the Issuing Entity or


Indenture Trustee, as the case may be.


 


Notices required to be given to the Rating Agencies by the Issuing


Entity, the Indenture Trustee or the Owner Trustee shall be in writing,


personally delivered or mailed by certified mail, return receipt requested, to


(i) in the case of [Moody's], at the following address: [Moody's Investors


Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York


10007] and (ii) in the case of [Standard & Poor's], at the following address:


[Standard & Poor's Ratings Group, 26 Broadway (15th Floor), New York, New York


10004, Attention of Asset Backed Surveillance Department]; or as to each of the


foregoing, at such other address as shall be designated by written notice to the


other parties.


 


Section 10.05 NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture


provides for notice to Noteholders of any event, such notice shall be


sufficiently given (unless otherwise herein expressly provided) if in writing


and mailed, first-class, postage prepaid to each Noteholder affected by such


event, at such Person's as it appears on the Note Register, not later than the


latest date, and not earlier than the earliest date, prescribed for the giving


of such notice. In any case where notice to Noteholders is given by mail,


neither the failure to mail such notice nor any defect in any notice so mailed


to any particular Noteholder shall affect the sufficiency of such notice with


respect to other Noteholders, and any notice that is mailed in the manner herein


provided shall conclusively be presumed to have been duly given regardless of


whether such notice is in fact actually received.


 


Where this Indenture provides for notice in any manner, such notice may


be waived in writing by any Person entitled to receive such notice, either


before or after the event, and such waiver shall be the equivalent of such


notice. Waivers of notice by Noteholders shall be filed with the Indenture


Trustee but such filing shall not be a condition precedent to the validity of


any action taken in reliance upon such a waiver.


 


In case, by reason of the suspension of regular mail service as a


result of a strike, work stoppage or similar activity, it shall be impractical


to mail notice of any event to Noteholders when such notice is required to be


given pursuant to any provision of this Indenture, then any manner of giving


such notice as shall be satisfactory to the Indenture Trustee shall be deemed to


be a sufficient giving of such notice.


 


Where this Indenture provides for notice to the Rating Agencies,


failure to give such notice shall not affect any other rights or obligations


created hereunder, and shall not under any circumstance constitute an Event of


Default.


 


Section 10.06 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding


any provision of this Indenture or any of the Notes to the contrary, the Issuing


Entity may enter into any agreement with any Holder of a Note providing for a


method of payment, or notice by the Indenture Trustee or any Administrator to


such Holder, that is different from the methods provided for in this Indenture


for such payments or notices. The Issuing Entity shall furnish to the Indenture


Trustee a copy of each such agreement and the Indenture Trustee shall cause


payments to be made and notices to be given in accordance with such agreements.


 


Section 10.07 CONFLICT WITH TRUST INDENTURE ACT. If any provision


hereof limits, qualifies or conflicts with another provision hereof that is


required to be included in this Indenture by any of the provisions of the Trust


Indenture Act, such required provision shall control.


 


The provisions of TIA ss.ss. 310 through 317 that impose duties on any


Person (including the provisions automatically deemed included herein unless


expressly excluded by this Indenture) are a part of and govern this Indenture,


whether or not physically contained herein.


 


Section 10.08 EFFECT OF HEADINGS. The Article and Section headings


herein are for convenience only and shall not affect the construction hereof.


 


Section 10.09 SUCCESSORS AND ASSIGNS. All covenants and agreements in


this Indenture and the Notes by the Issuing Entity shall bind its successors and


assigns, whether so expressed or not. All agreements of the Indenture Trustee in


this Indenture shall bind its successors, co-trustees and agents.


 


Section 10.10 SEPARABILITY. In case any provision in this Indenture or


in the Notes shall be invalid, illegal or unenforceable, the validity, legality,


and enforceability of the remaining provisions shall not in any way be affected


or impaired thereby.


 


Section 10.11 BENEFITS OF INDENTURE. The Credit Enhancer and its


successors and assigns shall be a third-party beneficiary to the provisions of


this Indenture. Nothing in this Indenture or in the Notes, express or implied,


shall give to any Person, other than the parties hereto and their successors


hereunder, and the Noteholders, and any other party secured hereunder, and any


other Person with an ownership interest in any part of the Trust Estate, any


benefit or any legal or equitable right, remedy or claim under this Indenture.


 


Section 10.12 LEGAL HOLIDAYS. In any case where the date on which any


payment is due shall not be a Business Day, then (notwithstanding any other


provision of the Notes or this Indenture) payment need not be made on such date,


but may be made on the next succeeding Business Day with the same force and


effect as if made on the date on which nominally due, and no interest shall


accrue for the period from and after any such nominal date.


 


Section 10.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN


ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS


CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE


PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


 


Section 10.14 COUNTERPARTS. This Indenture may be executed in any


number of counterparts, each of which so executed shall be deemed to be an


original, but all such counterparts shall together constitute but one and the


same instrument.


 


Section 10.15 RECORDING OF INDENTURE. If this Indenture is subject to


recording in any appropriate public recording offices, such recording is to be


effected by the Issuing Entity and at its expense accompanied by an Opinion of


Counsel (which may be counsel to the Indenture Trustee or any other counsel


reasonably acceptable to the Indenture Trustee) to the effect that such


recording is necessary either for the protection of the Noteholders or any other


Person secured hereunder or for the enforcement of any right or remedy granted


to the Indenture Trustee under this Indenture.


 


Section 10.16 ISSUING ENTITY OBLIGATION. No recourse may be taken,


directly or indirectly, with respect to the obligations of the Issuing Entity,


the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture


or any certificate or other writing delivered in connection herewith or


therewith, against (i) the Indenture Trustee or the Owner Trustee in its


individual capacity, (ii) any owner of a beneficial interest in the Issuing


Entity or (iii) any partner, owner, beneficiary, agent, officer, director,


employee or agent of the Indenture Trustee or the Owner Trustee in its


individual capacity, any holder of a beneficial interest in the Issuing Entity,


the Owner Trustee or the Indenture Trustee or of any successor or assign of the


Indenture Trustee or the Owner Trustee in its individual capacity, except as any


such Person may have expressly agreed (it being understood that the Indenture


Trustee and the Owner Trustee have no such obligations in their individual


capacity) and except that any such partner, owner or beneficiary shall be fully


liable, to the extent provided by applicable law, for any unpaid consideration


for stock, unpaid capital contribution or failure to pay any installment or call


owing to such entity. For all purposes of this Indenture, in the performance of


any duties or obligations of the Issuing Entity hereunder, the Owner Trustee


shall be subject to, and entitled to the benefits of, the terms and provisions


of Article VI, VII and VIII of the Trust Agreement.


 


Section 10.17 NO PETITION. The Indenture Trustee, by entering into this


Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree


that they will not at any time institute against the Depositor or the Issuing


Entity, or join in any institution against the Depositor or the Issuing Entity


of, any bankruptcy, reorganization, arrangement, insolvency or liquidation


proceedings, or other proceedings under any United States federal or state


bankruptcy or similar law in connection with any obligations relating to the


Notes, this Indenture or any of the Basic Documents.


 


Section 10.18 INSPECTION. The Issuing Entity agrees that, on reasonable


prior notice, it shall permit any representative of the Indenture Trustee,


during the Issuing Entity's normal business hours, to examine all the books of


account, records, reports and other papers of the Issuing Entity, to make copies


and extracts therefrom, to cause such books to be audited by Independent


certified public accountants, and to discuss the Issuing Entity's affairs,


finances and accounts with the Issuing Entity's officers, employees, and


Independent certified public accountants, all at such reasonable times and as


often as may be reasonably requested. The Indenture Trustee shall and shall


cause its representatives to hold in confidence all such information except to


the extent disclosure may be required by law (and all reasonable applications


for confidential treatment are unavailing) and except to the extent that the


Indenture Trustee may reasonably determine that such disclosure is consistent


with its obligations hereunder.


 


Section 10.19 AUTHORITY OF THE ADMINISTRATOR. Each of the parties to


this Indenture acknowledges that the Issuing Entity and the Owner Trustee have


each appointed the Administrator to act as its agent to perform the duties and


obligations of the Issuing Entity hereunder. Unless otherwise instructed by the


Issuing Entity or the Owner Trustee, copies of all notices, requests, demands


and other documents to be delivered to the Issuing Entity or the Owner Trustee


pursuant to the terms hereof shall be delivered to the Administrator. Unless


otherwise instructed by the Issuing Entity or the Owner Trustee, all notices,


requests, demands and other documents to be executed or delivered, and any


action to be taken, by the Issuing Entity or the Owner Trustee pursuant to the


terms hereof may be executed, delivered and/or taken by the Administrator


pursuant to the Administration Agreement.


 






  





  











  








IN WITNESS WHEREOF, the Issuing Entity and the Indenture Trustee have


caused their names to be signed hereto by their respective officers thereunto


duly authorized, all as of the day and year first above written.


 


OPTEUM MORTGAGE ACCEPTANCE CORPORATION


MBN TRUST SERIES 20__ -  _____,


as Issuing Entity


 


By:______________________________________


not in its individual capacity but solely


as Owner Trustee


 


By:______________________________________


Name:


Title:


 


________________________________________,


as Indenture Trustee, as Certificate


Paying Agent and as Note Registrar


 


By:______________________________________


Name:


Title:


 


_________________________________


hereby accepts the appointment as


Certificate Paying Agent pursuant


to Section 3.03 hereof and as


Certificate Registrar pursuant to


Section 4.02 hereof.


 


By:______________________________


Name:


Title:


 






  





  











  








STATE OF [NEW YORK]  )


) ss.:


COUNTY OF [NEW YORK]  )


 


On this ____ day of __________, before me personally appeared


______________, to me known, who being by me duly sworn, did depose and say,


that he resides at _________________, __________________ _____, that he is the


of the Owner Trustee, one of the corporations described in and which executed


the above instrument; that he knows the seal of said corporation; that the seal


affixed to said instrument is such corporate seal; that it was so affixed by


order of the Board of Directors of said corporation; and that he signed his name


thereto by like order.


 


________________________________________


Notary Public


 


[NOTARIAL SEAL]


 






  





  











  








STATE OF [NEW YORK]  )


) ss.:


COUNTY OF [NEW YORK]  )


 


On this ____ day of __________, before me personally appeared , to me


known, who being by me duly sworn, did depose and say, that he resides at


____________________, that he is the ______________ of ________________, as


Indenture Trustee, one of the corporations described in and which executed the


above instrument; that he knows the seal of said corporation; that the seal


affixed to said instrument is such corporate seal; that it was so affixed by


order of the Board of Directors of said corporation; and that he signed his name


thereto by like order.


 


----------------------------------------


Notary Public


 


[NOTARIAL SEAL]


 






  





  











  








STATE OF [NEW YORK]  )


) ss.:


COUNTY OF [NEW YORK]  )


 


On this ____ day of __________, before me personally appeared , to me


known, who being by me duly sworn, did depose and say, that he resides at


________________________, that he is an ________________ of _______________, as


Indenture Trustee, one of the corporations described in and which executed the


above instrument; that he knows the seal of said corporation; that the seal


affixed to said instrument is such corporate seal; that it was so affixed by


order of the Board of Directors of said corporation; and that he signed his name


thereto by like order.


 


________________________________________


Notary Public


 


[NOTARIAL SEAL]


 






  





  











  








EXHIBIT B


 


FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE


 


Re:  The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"),


among [IDENTIFY - PARTIES]


 


I, ________________________________, the _______________________ of


[NAME OF COMPANY], certify to [the Purchaser], [the Depositor], and the


[Master Servicer] [Securities Administrator] [Trustee], and their


officers, with the knowledge and intent that they will rely upon this


certification, that:


 


(1) I have reviewed the servicer compliance statement of the Company


provided in accordance with Item 1123 of Regulation AB (the "Compliance


Statement"), the report on assessment of the Company's compliance with


the servicing criteria set forth in Item 1122(d) of Regulation AB (the


"Servicing Criteria"), provided in accordance with Rules 13a-18 and


15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange


Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the


registered public accounting firm's attestation report provided in


accordance with Rules 13a-18 and 15d-18 under the Exchange Act and


Section 1122(b) of Regulation AB (the "Attestation Report"), and all


servicing reports, officer's certificates and other information


relating to the servicing of the Mortgage Loans by the Company during


200[ ] that were delivered by the Company to the [Depositor] [Master


Servicer] [Securities Administrator] [Trustee] pursuant to the


Agreement (collectively, the "Company Servicing Information");


 


(2) Based on my knowledge, the Company Servicing Information, taken as


a whole, does not contain any untrue statement of a material fact or


omit to state a material fact necessary to make the statements made, in


the light of the circumstances under which such statements were made,


not misleading with respect to the period of time covered by the


Company Servicing Information;


 


(3) Based on my knowledge, all of the Company Servicing Information


required to be provided by the Company under the Agreement has been


provided to the [Depositor] [Master Servicer] [Securities


Administrator] [Trustee];


 


(4) I am responsible for reviewing the activities performed by the


Company as servicer under the Agreement, and based on my knowledge and


the compliance review conducted in preparing the Compliance Statement


and except as disclosed in the Compliance Statement, the Servicing


Assessment or the Attestation Report, the Company has fulfilled its


obligations under the Agreement in all material respects; and


 


(5) The Compliance Statement required to be delivered by the Company


pursuant to the Agreement, and the Servicing Assessment and Attestation


Report required to be provided by the Company and by any Subservicer or


Subcontractor pursuant to the Agreement, have been provided to the


[Depositor] [Master Servicer]. Any material instances of noncompliance


described in such reports have been disclosed to the [Depositor]


[Master Servicer]. Any material instance of noncompliance with the


Servicing Criteria has been disclosed in such reports.


 


Date:  _________________________


 


By:


 


Name:  ________________________________


 


Title:  ________________________________


 






  





  











  








EXHIBIT C


 


FORM 10-D, FORM 8-K AND FORM 10-K


REPORTING RESPONSIBILITY


 


As to each item described below, the entity indicated as the Responsible Party


shall be primarily responsible for reporting the information to the Securities


Administrator pursuant to Section 3.18(a)(iv). If the Securities Administrator


is indicated below as to any item, then the Securities Administrator is


primarily responsible for obtaining that information.


 


Under Item 1 of Form 10-D: a) items marked "6.07 statement" are required to be


included in the periodic Distribution Date statement under Section 6.07,


provided by the Securities Administrator based on information received from the


Master Servicer; and b) items marked "Form 10-D report" are required to be in


the Form 10-D report but not the 6.07 statement, provided by the party


indicated. Information under all other Items of Form 10-D is to be included in


the Form 10-D report.


 



	
Form

	
Item

	
Description

	
Responsible Party


	  	  	  	  
	
10-D

	
Must be filed within 15 days of the distribution date for the asset-backed securities.


	  	
1

	
DISTRIBUTION AND POOL PERFORMANCE INFORMATION

	  
	  	  	
ITEM  1121(A)  -  DISTRIBUTION  AND  POOL  PERFORMANCE INFORMATION

	  
	  	  	
(1) Any applicable record dates, accrual dates, determination dates for calculating distributions and actual distribution dates for the distribution period.

	
6.07 statement


	  	  	
(2) Cash flows received and the sources thereof for distributions, fees and expenses.

	
6.07 statement


	  	  	
(3) Calculated amounts and distribution of the flow of funds for the period itemized by type and priority of payment, including:

	
6.07 statement


	  	  	
(i) Fees or expenses accrued and paid, with an identification of the general purpose of such fees and the party receiving such fees or expenses.

	
6.07 statement


	  	  	
(ii) Payments accrued or paid with respect to enhancement or other support identified in Item 1114 of Regulation AB (such as insurance premiums or other enhancement maintenance fees), with an identification of the general purpose of such payments and the party receiving such payments.

	
6.07 statement


	  	  	
(iii) Principal, interest and other distributions accrued and paid on the asset-backed securities by type and by class or series and any principal or interest shortfalls or carryovers.

	
6.07 statement


	  	  	
(iv) The amount of excess cash flow or excess spread and the disposition of excess cash flow.

	
6.07 statement


	  	  	
(4) Beginning and ending principal balances the asset-backed securities.

	
6.07 statement


	  	  	
(5) Interest rates applicable to the pool assets and the asset-backed securities, as applicable. Consider providing interest rate information for pool assets in appropriate distributional groups or incremental ranges.

	
6.07 statement


	  	  	
(6) Beginning and ending balances of transaction accounts, such as reserve accounts, and material account activity during the period.

	
6.07 statement


	  	  	
(7) Any amounts drawn on any credit enhancement or other support identified in Item 1114 of Regulation AB, as applicable, and the amount of coverage remaining under any such enhancement, if known and applicable.

	
6.07 statement


	  	  	
(8) Number and amount of pool assets at the beginning and ending of each period, and updated pool composition information, such as weighted average coupon, weighted average life, weighted average remaining term, pool factors and prepayment amounts

	
6.07 statement


 


Updated pool composition information fields to be as specified by Depositor from time to time


	  	  	
(9) Delinquency and loss information for the period.


 


In addition, describe any material changes to the information specified in Item 1100(b)(5) of Regulation AB regarding the pool assets.

	
6.07 statement


 


Form 10-D report:  Master Servicer


	  	  	
(10) Information on the amount, terms and general purpose of any advances made or reimbursed during the period, including the general use of funds advanced and the general source of funds for reimbursements.

	
6.07 statement


	  	  	
(11) Any material modifications, extensions or waivers to pool asset terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time.

	
6.07 statement


	  	  	
(12) Material breaches of pool asset representations or warranties or transaction covenants.

	
Form 10-D report: Securities Administrator (subject to Depositor approval)


	  	  	
(13) Information on ratio, coverage or other tests used for determining any early amortization, liquidation or other performance trigger and whether the trigger was met.

	
6.07 statement


	  	  	
(14) Information regarding any new issuance of asset-backed securities backed by the same asset pool,


 


[information regarding] any pool asset changes (other than in connection with a pool asset converting into cash in accordance with its terms), such as additions or  removals in connection with a prefunding or revolving period and pool asset substitutions and repurchases (and purchase rates, if applicable), and cash flows available for future purchases, such as the balances of any prefunding or revolving accounts, if applicable.


 


Disclose any material changes in the solicitation, credit-granting, underwriting, origination, acquisition or pool selection criteria or procedures, as applicable, used to originate, acquire or select the new pool assets.

	
Form 10-D report:  Depositor


 


 


Form 10-D report:  Master Servicer


 


 


 


 


 


 


 


Form 10-D report:  Master Servicer


	  	  	
ITEM 1121(B) - PRE-FUNDING OR REVOLVING PERIOD INFORMATION

	
Depositor


	  	  	
Updated pool information as required under Item


1121(b).

	  
	  	
2

	
LEGAL PROCEEDINGS

	  
	  	  	
Item 1117 - Legal proceedings pending against the following entities, or their respective property, that is material to Certificateholders, including proceedings known to be contemplated by governmental authorities:

	  
	  	  	
Sponsor (Seller)

	
Sponsor


	  	  	
Depositor

	
Depositor


	  	  	
Trustee

	
Trustee


	  	  	
Issuing entity

	
Depositor


	  	  	
Master Servicer, affiliated Servicer, other Servicer servicing 20% or more of pool assets at time of report, other material servicers

	
Master Servicer


	  	  	
Certificate Administrator

	
Certificate Administrator


	  	  	
Originator of 20% or more of pool assets as of the Cut-off Date

	
Master Servicer


	  	  	
Custodian

	
Custodian


	  	
3

	
SALES OF SECURITIES AND USE OF PROCEEDS

	  
	  	  	
INFORMATION FROM ITEM 2(A) OF PART II OF FORM 10-Q:

	  
	  	  	
With respect to any sale of securities by the sponsor, depositor or issuing entity, that are backed by the same asset pool or are


otherwise issued by the issuing entity, whether or not registered, provide the sales and use of proceeds information in Item 701 of Regulation S-K. Pricing information can be omitted if securities were not registered.

	
Depositor


	  	
4

	
DEFAULTS UPON SENIOR SECURITIES

	  
	  	  	
INFORMATION FROM ITEM 3 OF PART II OF FORM 10-Q:

	  
	  	  	
Report the occurrence of any Event of Default (after expiration of any grace period and provision of any required notice)

	
Trustee or Securities Administrator


	  	
5

	
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

	  
	  	  	
INFORMATION FROM ITEM 4 OF PART II OF FORM 10-Q

	
Trustee  or  Securities Administrator


	  	
6

	
SIGNIFICANT OBLIGORS OF POOL ASSETS

	  
	  	  	
ITEM 1112(B) - SIGNIFICANT OBLIGOR FINANCIAL INFORMATION*

	
Master Servicer


	  	  	
*This information need only be reported on the Form 10-D for the distribution period in which updated information is required pursuant to the Item.

	  
	  	
7

	
SIGNIFICANT ENHANCEMENT PROVIDER INFORMATION

	  
	  	  	
ITEM 1114(B)(2) - CREDIT  ENHANCEMENT  PROVIDER FINANCIAL


INFORMATION*

	  
	  	  	
Determining applicable disclosure threshold

	
Securities Administrator


	  	  	
Obtaining  required  financial  information  or effecting incorporation by reference

	
Securities Administrator


	  	  	
ITEM  1115(B)  -  DERIVATIVE  COUNTERPARTY  FINANCIAL INFORMATION*

	  
	  	  	
Determining current maximum probable exposure

	
Depositor


	  	  	
Determining current significance percentage

	
Securities Administrator


	  	  	
Obtaining  required  financial  information  or effecting incorporation by reference

	
Securities Administrator


	  	  	
*This information need only be reported on the Form 10-D for the distribution period in which updated information is required pursuant to the Items.

	  
	  	
8

	
OTHER INFORMATION

	  
	  	  	
DISCLOSE ANY INFORMATION REQUIRED TO BE REPORTED ON FORM 8-K DURING THE PERIOD COVERED BY THE FORM 10-D BUT NOT REPORTED

	
The Responsible Party for 8-K item as indicated below


	  	
9

	
EXHIBITS

	  
	  	  	
Distribution report

	
Securities Administrator


	  	  	
EXHIBITS REQUIRED BY ITEM 601 OF REGULATION S-K, SUCH AS MATERIAL AGREEMENTS

	
Depositor


	
8-K

	
Must be filed within four business days of an event reportable on Form 8-K.


	  	
1.01

	
ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

	  
	  	  	
Disclosure is required  regarding entry into or amendment of any definitive agreement that is material to the securitization, even if depositor is not a party.

	
Master Servicer; or any of the following that is a party to the agreement if Master Servicer is not:  Trustee, Sponsor, Depositor, Certificate Administrator


	  	  	
Examples: servicing agreement, custodial agreement.


	  	  	
Note:  disclosure  not  required  as  to  definitive agreements that are fully disclosed in the prospectus


	  	
1.02

	
TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT

	  
	  	  	
Disclosure is required regarding termination of  any definitive agreement that is material to the securitization (other than expiration in accordance with its terms), even if depositor is not a party.

	
Master Servicer; or any of the following that is a party to the agreement if Master Servicer is not:  Trustee, Sponsor, Depositor, Certificate Administrator


	  	  	
Examples: servicing agreement, custodial agreement.


	  	
1.03

	
BANKRUPTCY OR RECEIVERSHIP

	  
	  	  	
Disclosure is required regarding the bankruptcy or Master Servicer receivership, if known to the Master Servicer, with respect to any of the following:

	  
	  	  	
Sponsor (Seller), Depositor, Master Servicer, affiliated Servicer, other Servicer servicing 20% or more of pool assets at time of report, other material servicers, Certificate Administrator, Trustee, significant obligor, credit enhancer (10% or more), derivatives counterparty, Custodian

	  
	  	
2.04

	
TRIGGERING EVENTS THAT ACCELERATE OR INCREASE A DIRECT


FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN


OFF-BALANCE SHEET ARRANGEMENT

	  
	  	  	
Includes an early amortization, performance trigger or other event, including event of default, that would materially alter the payment priority/distribution of cash flows/amortization schedule.

	
Master Servicer


	  	  	
Disclosure will be made of events other than


waterfall triggers which are disclosed in the


6.07 statement

	  
	  	
3.03

	
MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS

	  
	  	  	
Disclosure is required of any material modification to documents defining the rights of Certificateholders, including the Pooling and Servicing Agreement

	
Securities Administrator


	  	
5.03

	
AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR

	  
	  	  	
Disclosure is required of any amendment "to the  governing documents of the issuing entity"

	
Depositor


	  	
5.06

	
CHANGE IN SHELL COMPANY STATUS

	  
	  	  	
[Not applicable to ABS issuers]

	
Depositor


	  	
6.01

	
ABS INFORMATIONAL AND COMPUTATIONAL MATERIAL

	  
	  	  	
[Not included in reports to be filed under Section 3.18]

	
Depositor


	  	
6.02

	
CHANGE OF SERVICER OR TRUSTEE

	  
	  	  	
Requires disclosure of any removal, replacement, substitution or addition of any master servicer, affiliated servicer, other servicer servicing 10% or more of pool assets at time of report, other material servicers, certificate administrator or trustee. Reg AB disclosure about any new servicer or trustee is also required.

	
Trustee or Master Servicer


	  	
6.03

	
CHANGE IN CREDIT ENHANCEMENT OR OTHER EXTERNAL SUPPORT

	  
	  	  	
Covers termination of any enhancement in manner other than by its terms, the addition of an enhancement, or a material change in the enhancement provided. Applies to external credit enhancements as well as derivatives. Reg AB disclosure about any new enhancement provider is also required.

	
Depositor or Securities Administrator


	  	
6.04

	
FAILURE TO MAKE A REQUIRED DISTRIBUTION

	
Trustee or Securities Administrator


	  	
6.05

	
SECURITIES ACT UPDATING DISCLOSURE

	  
	  	  	
If any material pool characteristic differs by 5% or  more at the time of issuance of the securities from the description in the final prospectus, provide updated Reg AB disclosure about the actual asset pool.

	
Depositor


	  	  	
If there are any new servicers or originators required  to be disclosed under Regulation AB as a result of the foregoing, provide the information called for in Items 1108 and 1110 respectively.

	
Depositor


	  	
7.01

	
REGULATION FD DISCLOSURE

	
Depositor


	  	
8.01

	
OTHER EVENTS

	  
	  	  	
Any event, with respect to which information is not  otherwise called for in Form 8-K, that the registrant deems of importance to security holders.

	
Depositor


	  	
9.01

	
FINANCIAL STATEMENTS AND EXHIBITS

	
The Responsible Party applicable to reportable event


	
10-K

	
Must be filed within 90 days of the fiscal year end for the registrant.


	  	
9B

	
OTHER INFORMATION

	  
	  	  	
Disclose any information required to be reported on Form  8-K during the fourth quarter covered by the Form 10-K but not reported

	
The Responsible Party for the applicable Form 8-K item as indicated above


	  	
15

	
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

	  
	  	  	
ITEM 1112(B) - SIGNIFICANT OBLIGOR FINANCIAL INFORMATION

	
Master Servicer


	  	  	
ITEM 1114(B)(2) - CREDIT ENHANCEMENT PROVIDER FINANCIAL INFORMATION

	  
	  	  	
Determining applicable disclosure threshold

	
Securities Administrator


	  	  	
Obtaining required financial information or effecting incorporation by reference

	
Securities Administrator


	  	  	
ITEM 1115(B) - DERIVATIVE COUNTERPARTY FINANCIAL INFORMATION

	  
	  	  	
Determining current maximum probable exposure

	
Depositor


	  	  	
Determining current significance percentage

	
Securities Administrator


	  	  	
Obtaining required financial information or effecting incorporation by reference

	
Securities Administrator


	  	  	
Item 1117 - Legal proceedings pending against the following entities, or their respective property, that is material to Certificateholders, including proceedings known to be contemplated by governmental authorities:

	  
	  	  	
Sponsor (Seller)

	
Sponsor


	  	  	
Depositor

	
Depositor


	  	  	
Trustee

	
Trustee


	  	  	
Issuing entity

	
Depositor


	  	  	
Master Servicer, affiliated Servicer, other Servicer servicing 20% or more of pool assets at time of report, other material servicers

	
Master Servicer


	  	  	
Certificate Administrator

	
Certificate Administrator


	  	  	
Originator of 20% or more of pool assets as of the Cut-off Date

	
Master Servicer


	  	  	
Custodian

	
Custodian


	  	  	
Item 1119 - Affiliations and relationships between the following entities, or their respective affiliates, that are material to Certificateholders:

	  
	  	  	
Sponsor (Seller)

	
Sponsor


	  	  	
Depositor

	
Depositor


	  	  	
Trustee

	
Trustee


	  	  	
Issuing entity

	
Depositor


	  	  	
Master Servicer, affiliated Servicer, other Servicer servicing 20% or more of pool assets at time of report, other material servicers

	
Master Servicer


	  	  	
Certificate Administrator

	
Certificate Administrator


	  	  	
Originator

	
Master Servicer


	  	  	
Custodian

	
Custodian


	  	  	
Credit Enhancer/Support Provider

	
Securities Administrator


	  	  	
Significant Obligor

	
Master Servicer


	  	  	
ITEM 1122 - ASSESSMENT OF COMPLIANCE WITH SERVICING CRITERIA

	
Each Party participating in the servicing function


	  	  	
ITEM 1123 - SERVICER COMPLIANCE STATEMENT

	
Master Servicer, Servicer
















  





  











  








APPENDIX A


 


DEFINITIONS


 


ADJUSTABLE RATE MORTGAGE LOAN: A Mortgage Loan with a Mortgage Rate


that is subject to periodic adjustment calculated on the basis of the Index,


plus an applicable Gross Margin. Each Adjustable Rate Mortgage Loan is secured


by a first lien on the related Mortgaged Property.


 


ADJUSTMENT DATE: As to each Adjustable Rate Mortgage Loan, each date


set forth in the related Mortgage Note on which an adjustment to the interest


rate on such Mortgage Loan becomes effective.


 


ADMINISTRATIVE FEE: The amount of the fee payable to the Owner Trustee


together with the amount of the premium payable to the Note Insurer, which will


accrue at ______% per annum based on the Note Principal Balance of the Notes.


 


ADVANCE: As to any Mortgage Loan, any advance made by the Master


Servicer, pursuant to Section 4.04 of the Servicing Agreement.


 


AFFILIATE: With respect to any Person, any other Person controlling,


controlled by or under common control with such Person. For purposes of this


definition, "control" means the power to direct the management and policies of a


Person, directly or indirectly, whether through ownership of voting securities,


by contract or otherwise and "controlling" and "controlled" shall have meanings


correlative to the foregoing.


 


APPRAISED VALUE: The appraised value of a Mortgaged Property based upon


the lesser of (i) the appraisal made at the time of the origination of the


related Mortgage Loan, or (ii) the sales price of such Mortgaged Property at


such time of origination. With respect to a Mortgage Loan the proceeds of which


were used to refinance an existing mortgage loan, the appraised value of the


Mortgaged Property based upon the appraisal (as reviewed and approved by the


Seller) obtained at the time of refinancing.


 


ASSIGNMENT OF MORTGAGE: An assignment of Mortgage, notice of transfer


or equivalent instrument, in recordable form, which is sufficient under the laws


of the jurisdiction wherein the related Mortgaged Property is located to reflect


of record the sale of the Mortgage, which assignment, notice of transfer or


equivalent instrument may be in the form of one or more blanket assignments


covering Mortgages secured by Mortgaged Properties located in the same county,


if permitted by law.


 


AUTHORIZED NEWSPAPER: A newspaper of general circulation in the Borough


of Manhattan, The City of New York, printed in the English language and


customarily published on each Business Day, whether or not published on


Saturdays, Sundays or holidays.


 


AUTHORIZED OFFICER: With respect to the Issuing Entity, any officer of


the Owner Trustee who is authorized to act for the Owner Trustee in matters


relating to the Issuing Entity and who is identified on the list of Authorized


Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing


Date (as such list may be modified or supplemented from time to time


thereafter).


 


AVAILABLE FUNDS: As to any Payment Date, an amount equal to the amount


on deposit in the Payment Account on such Payment Date and available for


distribution to the Noteholders (minus, if the Notes have been declared due and


payable following an Event of Default on such Payment Date, any amounts owed to


the Indenture Trustee by the Issuing Entity pursuant to Section 6.07 of the


Indenture).


 


AVAILABLE FUNDS CAP CARRY-FORWARD AMOUNT: With respect to the Notes and


any Payment Date, an amount equal to the sum of (x) the amount, if any, by which


(a) the lesser of (1) the amount payable if clause (i) of the definition of Note


Interest Rate is used to calculate interest and (2) the amount payable if the


Maximum Note Interest Rate is used to calculate interest exceeds (b) the amount


payable if clause (ii) of the definition of Note Interest Rate is used to


calculate interest and (y) the interest accrued during the prior Interest Period


on the amount of any Available Funds Cap Carry-Forward Amount immediately prior


to such Payment Date, calculated on the basis of a 360-day year and the actual


number of days elapsed and using the Note Interest Rate applicable to such


Payment Date minus (z) the aggregate of all amounts distributed to the


Noteholders on all prior Payment Dates pursuant to Section 3.05(v) of the


Indenture.


 


AVAILABLE FUNDS INTEREST RATE: As to any Payment Date, a per annum rate


equal to the lesser of (x) the fraction, expressed as a percentage, the


numerator of which is (i) an amount equal to (A) 1/12 of the aggregate Principal


Balance of the then outstanding Mortgage Loans times the weighted average of the


Expense Adjusted Mortgage Rates on the then outstanding Mortgage Loans minus (B)


the Administrative Fee for such Payment Date, and the denominator of which is


(ii) an amount equal to (A) the then outstanding aggregate Note Principal


Balance of the Notes multiplied by (B) the actual number of days elapsed in the


related Interest Period divided by 360 and (y) the Maximum Note Interest Rate.


 


BANKRUPTCY CODE:  The Bankruptcy Code of 1978, as amended.


 


BASIC DOCUMENTS: The Trust Agreement, the Certificate of Trust, the


Indenture, the Mortgage Loan Purchase Agreement, the Insurance Agreement, the


Servicing Agreement, and the other documents and certificates delivered in


connection with any of the above.


 


BENEFICIAL OWNER: With respect to any Note, the Person who is the


beneficial owner of such Note as reflected on the books of the Depository or on


the books of a Person maintaining an account with such Depository (directly as a


Depository Participant or indirectly through a Depository Participant, in


accordance with the rules of such Depository).


 


BOOK-ENTRY NOTES: Beneficial interests in the Notes, ownership and


transfers of which shall be made through book entries by the Depository as


described in Section 4.06 of the Indenture.


 


BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or (ii) a


day on which banking institutions in the City of New York, Delaware or


California or in the city in which the corporate trust offices of the Indenture


Trustee or the Note Insurer are located, are required or authorized by law to be


closed.


 


STATUTORY TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code,


12 DEL. Code ss.ss. 3801 ET SEQ., as the same may be amended from time to time.


 


CASH LIQUIDATION: As to any defaulted Mortgage Loan other than a


Mortgage Loan as to which an REO Acquisition occurred, a determination by the


Master Servicer that it has received all Insurance Proceeds, Liquidation


Proceeds and other payments or cash recoveries which the Master Servicer


reasonably and in good faith expects to be finally recoverable with respect to


such Mortgage Loan.


 


CERTIFICATE DISTRIBUTION ACCOUNT: The account or accounts created and


maintained pursuant to Section 3.10(d) of the Trust Agreement. The Certificate


Distribution Account shall be an Eligible Account.


 


CERTIFICATE PAYING AGENT: The meaning specified in Section 3.10 of the


Trust Agreement.


 


CERTIFICATE PERCENTAGE INTEREST: With respect to each Certificate, the


Certificate Percentage Interest on the face thereof.


 


CERTIFICATE REGISTER: The register maintained by the Certificate


Registrar in which the Certificate Registrar shall provide for the registration


of Certificates and of transfers and exchanges of Certificates.


 


CERTIFICATE REGISTRAR: Initially, the Indenture Trustee, in its


capacity as Certificate Registrar, or any successor to the Indenture Trustee in


such capacity.


 


CERTIFICATE OF TRUST: The Certificate of Trust filed for the Trust


pursuant to Section 3810(a) of the Statutory Trust Statute.


 


CERTIFICATES: The Opteum Mortgage Acceptance Corporation, Mortgage-Backed


Certificates, Series 20__-_, evidencing the beneficial ownership interest in the


Issuing Entity and executed by the Owner Trustee in substantially the form set


forth in Exhibit A to the Trust Agreement.


 


CERTIFICATEHOLDER: The Person in whose name a Certificate is registered


in the Certificate Register. Owners of Certificates that have been pledged in


good faith may be regarded as Holders if the pledgee establishes to the


satisfaction of the Indenture Trustee or the Owner Trustee, as the case may be,


the pledgee's right so to act with respect to such Certificates and that the


pledgee is not the Issuing Entity, any other obligor upon the Certificates or


any Affiliate of any of the foregoing Persons.


 


CLOSING DATE:  ______ __, 20__.


 


CODE: The Internal Revenue Code of 1986, as amended, and the rules and


regulations promulgated thereunder.


 


COLLATERAL: The meaning specified in the Granting Clause of the


Indenture.


 


COLLECTION ACCOUNT: The account or accounts created and maintained


pursuant to Section 3.06(d) of the Servicing Agreement. The Collection Account


shall be an Eligible Account.


 


COMBINED LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan and any


date, the percentage equivalent of a fraction, the numerator of which is the


Cut-Off Date Principal Balance of such Mortgage Loan and the denominator of


which is the outstanding principal balance as of the date of the origination of


such Mortgage Loan of any mortgage loan or mortgage loans that are secured by


liens on the Mortgaged Property that are senior or subordinate to the Mortgage


and the denominator of which is the Appraised Value of the related Mortgaged


Property.


 


COMPENSATING INTEREST: With respect to any Determination Date, an


amount equal to the lesser of (i) the aggregate amount of Prepayment Interest


Shortfall for the related Prepayment Period and (ii) the Servicing Fee for such


Determination Date.


 


CONVERTED MORTGAGE LOAN: Any Convertible Mortgage Loan with respect to


which the interest rate borne by such Mortgage Loan has been converted from an


adjustable interest rate to a fixed interest rate.


 


CONVERTIBLE MORTGAGE LOAN: Any Adjustable Rate Mortgage Loan which by


its terms grants to the related Mortgagor the option to convert the interest


rate borne by such Mortgage Loan from an adjustable interest rate to a fixed


interest rate.


 


CONVERTING MORTGAGE LOAN: Any Convertible Mortgage Loan with respect to


which the related Mortgagor has given notice of his intent to convert from an


adjustable interest rate to a fixed interest rate and prior to the conversion of


such Mortgage Loan.


 


CORPORATE TRUST OFFICE: With respect to the Indenture Trustee,


Certificate Registrar, Certificate Paying Agent and Paying Agent, the principal


corporate trust office of the Indenture Trustee and Note Registrar at which at


any particular time its corporate trust business shall be administered, which


office at the date of the execution of this instrument is located at


____________, __________, ______, __________ _____, Attention: ________ ___


______, except that for purposes of Section 4.02 of the Indenture and Section


3.09 of the Trust Agreement, such term shall include the Indenture Trustee's


office or agency at _______________, ________, ________ _____, Attention:


___________ _________. With respect to the Owner Trustee, the principal


corporate trust office of the Owner Trustee at which at any particular time its


corporate trust business shall be administered, which office at the date of the


execution of this Trust Agreement is located at ________________________, ______


____________, ________________________, __________, ________ _____, Attention:


______________________.


 


CUT-OFF DATE: With respect to the Mortgage Loans, ______ 1, 20__.


 


CUT-OFF DATE PRINCIPAL BALANCE: With respect to any Mortgage Loan, the


unpaid principal balance thereof as of the opening of business on the last day


of the related Due Period immediately prior to the Cut-Off Date.


 


DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction


in the scheduled Monthly Payment for such Mortgage Loan by a court of competent


jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction


constituting a Deficient Valuation or any reduction that results in a permanent


forgiveness of principal.


 


DEFAULT: Any occurrence which is or with notice or the lapse of time or


both would become an Event of Default.


 


DEFICIENCY AMOUNT: The meaning provided in the Note Insurance Policy.


 


DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation by


a court of competent jurisdiction of the Mortgaged Property in an amount less


than the then outstanding indebtedness under the Mortgage Loan, or any reduction


in the amount of principal to be paid in connection with any scheduled Monthly


Payment that constitutes a permanent forgiveness of principal, which valuation


or reduction results from a proceeding under the Bankruptcy Code.


 


DEFINITIVE NOTES: The meaning specified in Section 4.06 of the


Indenture.


 


DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced with


an Eligible Substitute Mortgage Loan.


 


DEMAND:  As defined in Section 3.18(a) of the Servicing Agreement.


 


DEPOSITOR: Opteum Mortgage Acceptance Corporation, a Delaware corporation,


or its successor in interest.


 


DEPOSITORY OR DEPOSITORY AGENCY: The Depository Trust Company or a


successor appointed by the Indenture Trustee with the approval of the Depositor.


Any successor to the Depository shall be an organization registered as a


"clearing agency" pursuant to Section 17A of the Exchange Act and the


regulations of the Securities and Exchange Commission thereunder.


 


DEPOSITORY PARTICIPANT: A Person for whom, from time to time, the


Depository effects book-entry transfers and pledges of securities deposited with


the Depository.


 


DETERMINATION DATE: With respect to any Payment Date, the 15th of the


related month, or if the 15th day of such month is not a Business Day, the


immediately preceding Business Day.


 


DUE DATE: The first day of the month of the related Payment Date.


 


DUE PERIOD: With respect to any Mortgage Loan and Due Date, the period


commencing on the second day of the month preceding the month of such Payment


Date (or, with respect to the first Due Period, the day following the Cut-Off


Date) and ending on the related Due Date.


 


ELIGIBLE ACCOUNT: An account that is any of the following: (i)


maintained with a depository institution the short term deposits of which have


been rated by each Rating Agency in its highest rating available, or (ii) an


account or accounts in a depository institution in which such accounts are fully


insured to the limits established by the FDIC, provided that any deposits not so


insured shall, to the extent acceptable to the Note Insurer and each Rating


Agency, as evidenced in writing, be maintained such that (as evidenced by an


Opinion of Counsel delivered to the Indenture Trustee, the Note Insurer and each


Rating Agency) the Indenture Trustee have a claim with respect to the funds in


such account or a perfected first security interest against any collateral


(which shall be limited to Eligible Investments) securing such funds that is


superior to claims of any other depositors or creditors of the depository


institution with which such account is maintained, or (iii) in the case of the


Collection Account, either (A) a trust account or accounts maintained at the


Corporate Trust Department of the Indenture Trustee or (B) an account or


accounts maintained at the Corporate Trust Department of the Indenture Trustee,


as long as its short term debt obligations are rated P-1 by Moody's and A-1 by


Standard & Poor's or better and its long term debt obligations are rated A2 by


Moody's and A by Standard & Poor's or better, or (iv) in the case of the


Collection Account and the Payment Account, a trust account or accounts


maintained in the corporate trust division of the Indenture Trustee, or (v) an


account or accounts of a depository institution acceptable to each Rating Agency


as evidenced in writing by each Rating Agency that use of any such account as


the Collection Account or the Payment Account will not reduce the rating


assigned to any of the Securities by such Rating Agency below investment grade


without taking into account the Note Insurance Policy and acceptable to the Note


Insurer as evidenced in writing.


 


ELIGIBLE INVESTMENTS:  One or more of the following:


 


(i) direct obligations of, and obligations fully guaranteed


by, the United States of America, the Federal Home Mortgage


Corporation, the Federal National Mortgage Association, the Federal


Home Loan Banks or any agency or instrumentality of the United States


of America the obligations of which are backed by the full faith and


credit of the United States of America;


 


(ii) (A) demand and time deposits in, certificates of


deposit of, banker's acceptances issued by or federal funds sold by


any depository institution or trust company (including the Indenture


Trustee or its agent acting in their respective commercial capacities)


incorporated under the laws of the United States of America or any


State thereof and subject to supervision and examination by federal


and/or state authorities, so long as at the time of such investment or


contractual commitment providing for such investment, such depository


institution or trust company has a short term unsecured debt rating in


the highest available rating category of each of the Rating Agencies


and provided that each such investment has an original maturity of no


more than 365 days, and (B) any other demand or time deposit or


deposit which is fully insured by the Federal Deposit Insurance


Corporation;


 


(iii) repurchase obligations with a term not to exceed 30


days with respect to any security described in clause (i) above and


entered into with a depository institution or trust company (acting as


a principal) rated "A" or higher by S&P and A2 or higher by Moody's;


provided, however, that collateral transferred pursuant to such


repurchase obligation must (A) be valued weekly at current market


price plus accrued interest, (B) pursuant to such valuation, equal, at


all times, 105% of the cash transferred by the Indenture Trustee in


exchange for such collateral and (C) be delivered to the Indenture


Trustee or, if the Indenture Trustee is supplying the collateral, an


agent for the Indenture Trustee, in such a manner as to accomplish


perfection of a security interest in the collateral by possession of


certificated securities.


 


(iv) securities bearing interest or sold at a discount


issued by any corporation incorporated under the laws of the United


States of America or any State thereof which has a long term unsecured


debt rating in the highest available rating category of each of the


Rating Agencies at the time of such investment;


 


(v) commercial paper having an original maturity of less


than 365 days and issued by an institution having a short term


unsecured debt rating in the highest available rating category of each


of the Rating Agencies at the time of such investment;


 


(vi) a guaranteed investment contract approved by each of


the Rating Agencies and the Note Insurer and issued by an insurance


company or other corporation having a long term unsecured debt rating


in the highest available rating category of each of the Rating


Agencies at the time of such investment;


 


(vii) money market funds having ratings in the highest


available long-term rating category of each of the Rating Agencies at


the time of such investment; any such money market funds which provide


for demand withdrawals being conclusively deemed to satisfy any


maturity requirement for Eligible Investments set forth in the


Indenture; and


 


(viii) any investment approved in writing by each of the


Rating Agencies and the Note Insurer.


 


The Indenture Trustee may purchase from or sell to itself or an


affiliate, as principal or agent, the Eligible Investments listed above.


 


Provided, however, that each such instrument shall be acquired in an arm's


length transaction and no such instrument shall be an Eligible Investment if it


represents, either (1) the right to receive only interest payments with respect


to the underlying debt instrument or (2) the right to receive both principal and


interest payments derived from obligations underlying such instrument and the


principal and interest payments with respect to such instrument provide a yield


to maturity greater than 120% of the yield to maturity at par of such underlying


obligations; provided further, however, that each such instrument acquired shall


not be acquired at a price in excess of par.


 


ELIGIBLE SUBSTITUTE MORTGAGE LOAN: A Mortgage Loan substituted by the


Seller for a Deleted Mortgage Loan which must, on the date of such substitution,


as confirmed in an Officer's Certificate delivered to the Indenture Trustee, (i)


have an outstanding principal balance, after deduction of the principal portion


of the monthly payment due in the month of substitution (or in the case of a


substitution of more than one Mortgage Loan for a Deleted Mortgage Loan, an


aggregate outstanding principal balance, after such deduction), not in excess of


the outstanding principal balance of the Deleted Mortgage Loan (the amount of


any shortfall to be deposited by the Seller in the Collection Account in the


month of substitution); (ii) comply with each representation and warranty set


forth in clauses (ii) through (lxxvii) of Section 3.1(b) of the Mortgage Loan


Purchase Agreement other than clauses (ii), (iii), (v)-(xi), (xiii)-(xiv), (l),


(lxvi), (lxviii), (lxxi), (lxxiii); (iii) have a Mortgage Rate and Gross Margin


no lower than and not more than 1% per annum higher than the Mortgage Rate and


Gross Margin, respectively, of the Deleted Mortgage Loan as of the date of


substitution; (iv) have a Combined Loan-to-Value Ratio at the time of


substitution no higher than that of the Deleted Mortgage Loan at the time of


substitution; (v) have a remaining term to stated maturity not greater than (and


not more than one year less than) that of the Deleted Mortgage Loan and (vi) not


be 30 days or more delinquent.


 


ERISA: The Employee Retirement Income Security Act of 1974, as amended.


 


EVENT OF DEFAULT: With respect to the Indenture, any one of the


following events (whatever the reason for such Event of Default and whether it


shall be voluntary or involuntary or be effected by operation of law or pursuant


to any judgment, decree or order of any court or any order, rule or regulation


of any administrative or governmental body):


 


(i) a default in (a) the payment of the Interest Payment


Amount or the Principal Payment Amount with respect to a Payment Date


on such Payment Date or (b) the Subordination Increase Amount or the


Available Funds Cap Carry-Forward Amount, but only, with respect to


clause (b), to the extent funds are available to make such payment as


provided in the Indenture; or


 


(ii) the failure by the Issuing Entity on the Final


Scheduled Payment Date to reduce the Note Principal Balance to zero;


or


 


(iii) there occurs a default in the observance or


performance of any covenant or agreement of the Issuing Entity made in


the Indenture, or any representation or warranty of the Issuing Entity


made in the Indenture or in any certificate or other writing delivered


pursuant hereto or in connection herewith proving to have been


incorrect in any material respect as of the time when the same shall


have been made, and such default shall continue or not be cured, or


the circumstance or condition in respect of which such representation


or warranty was incorrect shall not have been eliminated or otherwise


cured, for a period of 30 days after there shall have been given, by


registered or certified mail, to the Issuing Entity by the Indenture


Trustee or to the Issuing Entity and the Indenture Trustee by the Note


Insurer, or if a Note Insurer Default exists the Holders of at least


25% of the Outstanding Amount of the Notes, a written notice


specifying such default or incorrect representation or warranty and


requiring it to be remedied and stating that such notice is a notice


of default hereunder; or


 


(iv) there occurs the filing of a decree or order for relief


by a court having jurisdiction in the premises in respect of the


Issuing Entity or any substantial part of the Trust Estate in an


involuntary case under any applicable federal or state bankruptcy,


insolvency or other similar law now or hereafter in effect, or


appointing a receiver, liquidator, assignee, custodian, trustee,


sequestrator or similar official of the Issuing Entity or for any


substantial part of the Trust Estate, or ordering the winding-up or


liquidation of the Issuing Entity's affairs, and such decree or order


shall remain unstayed and in effect for a period of 60 consecutive


days; or


 


(v) there occurs the commencement by the Issuing Entity of a


voluntary case under any applicable federal or state bankruptcy,


insolvency or other similar law now or hereafter in effect, or the


consent by the Issuing Entity to the entry of an order for relief in


an involuntary case under any such law, or the consent by the Issuing


Entity to the appointment or taking possession by a receiver,


liquidator, assignee, custodian, trustee, sequestrator or similar


official of the Issuing Entity or for any substantial part of the


assets of the Trust Estate, or the making by the Issuing Entity of any


general assignment for the benefit of creditors, or the failure by the


Issuing Entity generally to pay its debts as such debts become due, or


the taking of any action by the Issuing Entity in furtherance of any


of the foregoing.


 


EVENT OF SERVICER TERMINATION: With respect to the Servicing Agreement,


a Servicing Default as defined in Section 6.01 of the Servicing Agreement.


 


EXCESS SUBORDINATION AMOUNT: With respect to any Payment Date, the


excess, if any, of (a) the Subordination Amount that would apply on such Payment


Date after taking into account all distributions to be made on such Payment Date


(exclusive of any reductions thereto attributable to Subordination Reduction


Amounts on such Payment Date) over (b) the Required Subordination Amount for


such Payment Date.


 


EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the


rules and regulations promulgated thereunder.


 


EXPENSE ADJUSTED MORTGAGE RATE: For any Mortgage Loan, the rate equal


to the then applicable Mortgage Rate thereon minus the sum of (i) the Minimum


Spread and (ii) the Servicing Fee Rate and (iii) the Indenture Trustee Fee Rate.


 


EXPENSES: The meaning specified in Section 7.02 of the Trust Agreement.


 


FDIC: The Federal Deposit Insurance Corporation or any successor


thereto.


 


FHLMC: The Federal Home Loan Mortgage Corporation, or any successor


thereto.


 


FINAL SCHEDULED PAYMENT DATE: The Payment Date occurring in _________


20__.


 


FIXED RATE MORTGAGE LOAN: Any Mortgage Loan with a fixed rate of


interest.


 


FNMA: The Federal National Mortgage Association, or any successor


thereto.


 


FORECLOSURE PROFIT: With respect to a Liquidated Mortgage Loan, the


amount, if any, by which (i) the aggregate of its Net Liquidation Proceeds


exceeds (ii) the related Principal Balance (plus accrued and unpaid interest


thereon at the applicable Mortgage Rate from the date interest was last paid


through the date of receipt of the final Liquidation Proceeds) of such


Liquidated Mortgage Loan immediately prior to the final recovery of its


Liquidation Proceeds.


 


GRANT: Pledge, bargain, sell, warrant, alienate, remise, release,


convey, assign, transfer, create, and grant a lien upon and a security interest


in and right of set-off against, deposit, set over and confirm pursuant to the


Indenture. A Grant of the Collateral or of any other agreement or instrument


shall include all rights, powers and options (but none of the obligations) of


the granting party thereunder, including the immediate and continuing right to


claim for, collect, receive and give receipt for principal and interest payments


in respect of such collateral or other agreement or instrument and all other


moneys payable thereunder, to give and receive notices and other communications,


to make waivers or other agreements, to exercise all rights and options, to


bring proceedings in the name of the granting party or otherwise, and generally


to do and receive anything that the granting party is or may be entitled to do


or receive thereunder or with respect thereto.


 


GROSS MARGIN: With respect to any Adjustable Rate Mortgage Loan, the


percentage set forth as the "Gross Margin" for such Mortgage Loan on the


Mortgage Loan Schedule, as adjusted from time to time in accordance with the


terms of the Servicing Agreement.


 


HOMES ACT:  The Helping Families Save Their Homes Act of 2009, as it may be amended from time to time.


 


INDEMNIFIED PARTY: The meaning specified in Section 7.02 of the Trust


Agreement.


 


INDENTURE: The indenture dated as of ______ __, 20__, between the


Issuing Entity, as debtor, and the Indenture Trustee, as Indenture Trustee.


 


INDENTURE TRUSTEE: _________________________________________, a


national banking association, and its successors and assigns or any successor


indenture trustee appointed pursuant to the terms of the Indenture.


 


INDENTURE TRUSTEE FEE: With respect to each Mortgage Loan and any


Payment Date the product of (i) the Indenture Trustee Fee Rate divided by 12 and


(ii) the Principal Balance of such Mortgage Loans as of such date.


 


INDENTURE TRUSTEE FEE RATE:  _____% per annum.


 


INDEPENDENT: When used with respect to any specified Person, the Person


(i) is in fact independent of the Issuing Entity, any other obligor on the


Notes, the Seller, the Issuing Entity, the Depositor and any Affiliate of any of


the foregoing Persons, (ii) does not have any direct financial interest or any


material indirect financial interest in the Issuing Entity, any such other


obligor, the Seller, the Issuing Entity, the Depositor or any Affiliate of any


of the foregoing Persons and (iii) is not connected with the Issuing Entity, any


such other obligor, the Seller, the Issuing Entity, the Depositor or any


Affiliate of any of the foregoing Persons as an officer, employee, promoter,


underwriter, trustee, partner, director or person performing similar functions.


 


INDEPENDENT CERTIFICATE: A certificate or opinion to be delivered to


the Indenture Trustee under the circumstances described in, and otherwise


complying with, the applicable requirements of Section 10.01 of the Indenture,


made by an Independent appraiser or other expert appointed by an Issuing Entity


Order and approved by the Indenture Trustee in the exercise of reasonable care,


and such opinion or certificate shall state that the signer has read the


definition of "Independent" in this Indenture and that the signer is Independent


within the meaning thereof.


 


INDEX: With respect to any Adjustable Rate Mortgage Loan, index for the


adjustment of the Mortgage Rate set forth as such on the related Mortgage Note.


 


INITIAL NOTE PRINCIPAL BALANCE: With respect to the Notes,


$______________.


 


INITIAL SUBSERVICER:  _____________, a __________ corporation.


 


INSOLVENCY EVENT: With respect to a specified Person, (a) the filing of


a decree or order for relief by a court having jurisdiction in the premises in


respect of such Person or any substantial part of its property in an involuntary


case under any applicable bankruptcy, insolvency or other similar law now or


hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,


trustee, sequestrator or similar official for such Person or for any substantial


part of its property, or ordering the winding-up or liquidation of such Person's


affairs, and such decree or order shall remain unstayed and in effect for a


period of 60 consecutive days; or (b) the commencement by such Person of a


voluntary case under any applicable bankruptcy, insolvency or other similar law


now or hereafter in effect, or the consent by such Person to the entry of an


order for relief in an involuntary case under any such law, or the consent by


such Person to the appointment of or taking possession by a receiver,


liquidator, assignee, custodian, trustee, sequestrator or similar official for


such Person or for any substantial part of its property, or the making by such


Person of any general assignment for the benefit of creditors, or the failure by


such Person generally to pay its debts as such debts become due or the admission


by such Person in writing (as to which the Indenture Trustee shall have notice)


of its inability to pay its debts generally, or the adoption by the Board of


Directors or managing member of such Person of a resolution which authorizes


action by such Person in furtherance of any of the foregoing.


 


INSURANCE AGREEMENT: The insurance and reimbursement agreement dated as


of _____ __, 20__, among the Master Servicer, the Seller, the Depositor, the


Issuing Entity, Indenture Trustee and the Note Insurer, including any amendments


and supplements thereto.


 


INSURANCE PROCEEDS: Proceeds paid by any insurer (other than the Note


Insurer) pursuant to any insurance policy covering a Mortgage Loan which are


required to be remitted to the Master Servicer, or amounts required to be paid


by the Master Servicer pursuant to the Servicing Agreement, net of any component


thereof (i) covering any expenses incurred by or on behalf of the Master


Servicer in connection with obtaining such proceeds, (ii) that is applied to the


restoration or repair of the related Mortgaged Property, (iii) released to the


Mortgagor in accordance with the Master Servicer's normal servicing procedures


or (iv) required to be paid to any holder of a mortgage senior to such Mortgage


Loan.


 


INSURED PAYMENT: Shall have the meaning set forth in the Note


Insurance Policy.


 


INTEREST DETERMINATION DATE: With respect to any Interest Period, the


second London Business Day preceding the commencement of such Interest Period.


 


INTEREST PAYMENT AMOUNT: With respect to any Payment Date, an amount


equal to interest accrued during the related Interest Period on the Note


Principal Balance thereof at the then-applicable Note Interest Rate, minus any


Prepayment Interest Shortfalls and Relief Act Shortfalls to the extent not


covered by the Master Servicer by Compensating Interest for such Payment Date.


 


INTEREST PERIOD: With respect to any Payment Date other than the first


Payment Date, the period beginning on the preceding Payment Date and ending on


the day preceding such Payment Date, and in the case of the first Payment Date,


the period beginning on the Closing Date and ending on the day preceding the


first Payment Date.


 


INTEREST RATE ADJUSTMENT DATE: With respect to each Mortgage Loan, the


date or dates on which the Mortgage Rate is adjusted in accordance with the


related Mortgage Note.


 


ISSUING ENTITY: The Opteum Mortgage Acceptance Corporation MBN Trust Series


20__-_, a Delaware statutory trust, or its successor in interest.


 


ISSUER REQUEST: A written order or request signed in the name of the


Issuing Entity by any one of its Authorized Officers and approved in writing by


the Note Insurer, so long as no Note Insurer Default exists and delivered to the


Indenture Trustee.


 


LIBOR BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or


(ii) a day on which banking institutions in the State of New York, Delaware or


California, or in the city of London, England are required or authorized by law


to be closed.


 


LIEN: Any mortgage, deed of trust, pledge, conveyance, hypothecation,


assignment, participation, deposit arrangement, encumbrance, lien (statutory or


other), preference, priority right or interest or other security agreement or


preferential arrangement of any kind or nature whatsoever, including, without


limitation, any conditional sale or other title retention agreement, any


financing lease having substantially the same economic effect as any of the


foregoing and the filing of any financing statement under the UCC (other than


any such financing statement filed for informational purposes only) or


comparable law of any jurisdiction to evidence any of the foregoing; provided,


however, that any assignment pursuant to Section 6.02 of the Servicing Agreement


shall not be deemed to constitute a Lien.


 


LIFETIME RATE CAP: With respect to each Mortgage Loan with respect to


which the related Mortgage Note provides for a lifetime rate cap, the maximum


Mortgage Rate permitted over the life of such Mortgage Loan under the terms of


such Mortgage Note, as set forth on the Mortgage Loan Schedule and initially as


set forth on Exhibit A to the Servicing Agreement.


 


LIQUIDATED MORTGAGE LOAN: With respect to any Payment Date, any


Mortgage Loan in respect of which the Master Servicer has determined, in


accordance with the servicing procedures specified in the Servicing Agreement,


as of the end of the related Prepayment Period that substantially all


Liquidation Proceeds which it reasonably expects to recover with respect to the


disposition of the related REO Property have been recovered.


 


LIQUIDATION EXPENSES: Out-of-pocket expenses (exclusive of overhead)


which are incurred by or on behalf of the Master Servicer in connection with the


liquidation of any Mortgage Loan and not recovered under any insurance policy,


such expenses including, without limitation, legal fees and expenses, any


unreimbursed amount expended (including, without limitation, amounts advanced to


correct defaults on any mortgage loan which is senior to such Mortgage Loan and


amounts advanced to keep current or pay off a mortgage loan that is senior to


such Mortgage Loan) respecting the related Mortgage Loan and any related and


unreimbursed expenditures for real estate property taxes or for property


restoration, preservation or insurance against casualty loss or damage.


 


LIQUIDATION PROCEEDS: Proceeds (including Insurance Proceeds but not


including amounts drawn under the Note Insurance Policy) received in connection


with the liquidation of any Mortgage Loan or related REO Property, whether


through trustee's sale, foreclosure sale or otherwise.


 


LOAN YEAR: With respect to any Mortgage Loan, the one year period


commencing on the day succeeding the origination of such Mortgage Loan and


ending on the anniversary date of such Mortgage Loan, and each annual period


thereafter.


 


LONDON BUSINESS DAY: Any day on which banks in the City of London,


England are open and conducting transactions in United States dollars.


 


LOST NOTE AFFIDAVIT: With respect to any Mortgage Loan as to which the


original Mortgage Note has been permanently lost or destroyed and has not been


replaced, an affidavit from the Seller certifying that the original Mortgage


Note has been lost, misplaced or destroyed (together with a copy of the related


Mortgage Note).


 


MASTER SERVICER: _______________________, a __________ corporation,


and its successors and assigns.


 


MASTER SERVICING FEE: With respect to each Mortgage Loan and any


Payment Date the product of (i) the Master Servicing Fee Rate divided by 12 and


(ii) the Principal Balance of such Mortgage Loans as of such date.


 


MASTER SERVICING FEE RATE: With respect to each Mortgage Loan, ____%


per annum.


 


MAXIMUM NOTE INTEREST RATE: With respect to any Payment Date, the per


annum rate equal to the fraction, expressed as a percentage, the numerator of


which is (i) an amount equal to (A) 1/12 of the aggregate Principal Balance of


the then outstanding Mortgage Loans times the weighted average of the Expense


Adjusted Maximum Mortgage Rates on the then outstanding Mortgage Loans minus (B)


the Administrative Fee for such Payment Date, and the denominator of which is


(ii) an amount equal to (A) the aggregate Note Principal Balance of the Notes


multiplied by (B) the actual number of days elapsed in the related Interest


Period divided by 360.


 


MAXIMUM MORTGAGE RATE: With respect to each Adjustable Rate Mortgage


Loan, the maximum Mortgage Rate.


 


MINIMUM MORTGAGE RATE: With respect to each Adjustable Rate Mortgage


Loan, the minimum Mortgage Rate.


 


MINIMUM SPREAD:  ____% per annum.


 


MONTHLY PAYMENT: With respect to any Mortgage Loan (including any REO


Property) and any Due Date, the payment of principal and interest due thereon in


accordance with the amortization schedule at the time applicable thereto (after


adjustment, if any, for partial Prepayments and for Deficient Valuations


occurring prior to such Due Date but before any adjustment to such amortization


schedule by reason of any bankruptcy, other than a Deficient Valuation, or


similar proceeding or any moratorium or similar waiver or grace period).


 


MOODY'S: Moody's Investors Service, Inc. or its successor in interest.


 


MORTGAGE: The mortgage, deed of trust or other instrument creating a


first or second lien on an estate in fee simple interest in real property


securing a Mortgage Loan.


 


MORTGAGE FILE: The file containing the Related Documents pertaining to


a particular Mortgage Loan and any additional documents required to be added to


the Mortgage File pursuant to the Mortgage Loan Purchase Agreement or the


Servicing Agreement.


 


MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement,


dated as of the Cut-Off Date, between the Seller, as seller, and the Purchaser,


as purchaser, with respect to the Mortgage Loans, dated as of ______ __, 20__.


 


MORTGAGE LOAN SCHEDULE: With respect to any date, the schedule of


Mortgage Loans held by the Issuing Entity on such date. The initial schedule of


Mortgage Loans as of the Cut-Off Date is the schedule set forth in Exhibit A of


the Servicing Agreement, which schedule sets forth as to each Mortgage Loan


 


(i) the loan number and name of the Mortgagor;


 


(ii) the city, state and zip code of the Mortgaged Property;







(iii) the Mortgage Rate;


 


(iv) the Maximum Rate;


 


(v) the maturity date;


 


(vi) the original principal balance;


 


(vii) the first payment date;


 


(viii) the type of Mortgaged Property;


 


(ix) the Monthly Payment in effect as of the Cut-Off Date;


 


(x) the Cut-off Date Principal Balance;


 


(xi) the occupancy status;


 


(xii) the purpose of the Mortgage Loan;


 


(xiii) the Appraised Value of the Mortgaged Property;


 


(xiv) the original term to maturity;


 


(xv) the paid-through date of the Mortgage Loan;


 


(xvi) the Loan-to-Value Ratio; and


 


(xvii) whether or not the Mortgage Loan was underwritten


pursuant to a limited documentation program.


 


The Mortgage Loan Schedule shall also set forth the total of the


amounts described under (ix) above for all of the Mortgage Loans.


 


MORTGAGE LOANS: At any time, collectively, all Mortgage Loans that have


been sold to the Depositor under the Mortgage Loan Purchase Agreement or


substituted for pursuant to Section 2.1 and 3.1 of the Mortgage Loan Purchase


Agreement and transferred and conveyed to the Issuing Entity, in each case


together with the Related Documents, and that remain subject to the terms


thereof.


 


MORTGAGE NOTE: The note or other evidence of the indebtedness of a


Mortgagor under a Mortgage Loan.


 


MORTGAGE RATE: With respect to any Mortgage Loan, the annual rate at


which interest accrues on such Mortgage Loan.


 


MORTGAGED PROPERTY: The underlying property, including real property


and improvements thereon, securing a Mortgage Loan.


 


MORTGAGOR: The obligor or obligors under a Mortgage Note.


 


NET LIQUIDATION PROCEEDS: With respect to any Liquidated Mortgage


Loan, Liquidation Proceeds net of Liquidation Expenses.


 


NET MONTHLY EXCESS CASHFLOW: For any Payment Date, the amount of


Available Funds and any Insured Payment remaining after distributions pursuant


to clauses (i) through (iii) of Section 3.05 of the Indenture (minus any Insured


Payment and any Subordination Reduction Amount).


 


NET MORTGAGE RATE: With respect to any Mortgage Loan and any day, the


related Mortgage Rate less the sum of the related Servicing Fee Rate, the


Administrative Fee Rate and the Indenture Trustee Fee Rate.


 


NONRECOVERABLE ADVANCE: Any advance (i) which was previously made or is


proposed to be made by the Master Servicer; and (ii) which, in the good faith


judgment of the Master Servicer, will not or, in the case of a proposed advance,


would not, be ultimately recoverable by the Master Servicer from Liquidation


Proceeds, Insurance Proceeds or future payments on any Mortgage Loan.


 


NOTE INSURANCE POLICY: The bond guaranty insurance policy number 21885,


issued by the Note Insurer to the Indenture Trustee for the benefit of the


Noteholders.


 


NOTE INSURER: MBIA Insurance Corporation, a New York insurance company,


any successor thereto or any replacement bond insurer substituted pursuant to


Section 3.29 of the Indenture.


 


NOTE INSURER DEFAULT: The existence and continuance of any of the


following: (a) a failure by the Note Insurer to make a payment required under


the Note Insurance Policy in accordance with its terms; or (b)(i) the Note


Insurer (A) files any petition or commences any case or proceeding under any


provision or chapter of the Bankruptcy Code or any other similar federal or


state law relating to insolvency, bankruptcy, rehabilitation, liquidation or


reorganization, (B) makes a general assignment for the benefit of its creditors,


or (C) has an order for relief entered against it under the Bankruptcy Code or


any other similar federal or state law relating to insolvency, bankruptcy,


rehabilitation, liquidation or reorganization which is final and nonappealable;


or (ii) a court of competent jurisdiction, the New York Department of Insurance


or other competent regulatory authority enters a final and nonappealable order,


judgment or decree (A) appointing a custodian, trustee, agent or receiver for


the Note Insurer or for all or any material portion of its property or (B)


authorizing the taking of possession by a custodian, trustee, agent or receiver


of the Note Insurer (or the taking of possession of all or any material portion


of the property of the Note Insurer).


 


NOTE INTEREST RATE: With respect to each Payment Date after the first


Payment Date, a floating rate equal to the lesser of (i) with respect to each


Payment Date up to and including the Payment Date in _________ 20__, One-Month


LIBOR plus ____%, and with respect to each Payment Date thereafter, One-Month


LIBOR plus ____% and (ii) the Available Funds Interest Rate with respect to such


Payment Date. The Note Interest Rate for the first Payment Date will equal ____%


per annum.


 


NOTE OWNER:  The Beneficial Owner of a Note.


 


NOTE PERCENTAGE: With respect to any Payment Date and any Note, the


ratio expressed as a percentage of the Note Principal Balance of such Note to


the aggregate Note Principal Balance of all Notes immediately prior to such


Payment Date.


 


NOTE PRINCIPAL BALANCE: With respect to any Note, the initial Note


Principal Balance thereof minus all amounts distributed in respect of principal


with respect to such Note.


 


NOTE REGISTER: The register maintained by the Note Registrar in which


the Note Registrar shall provide for the registration of Notes and of transfers


and exchanges of Notes.


 


NOTE REGISTRAR: The Indenture Trustee, in its capacity as Note


Registrar.


 


NOTEHOLDER: The Person in whose name a Note is registered in the Note


Register, except that, any Note registered in the name of the Depositor, the


Issuing Entity or the Indenture Trustee or any Affiliate of any of them shall be


deemed not to be outstanding and the registered holder will not be considered a


Noteholder or holder for purposes of giving any request, demand, authorization,


direction, notice, consent or waiver under the Indenture or the Trust Agreement


provided that, in determining whether the Indenture Trustee shall be protected


in relying upon any such request, demand, authorization, direction, notice,


consent or waiver, only Notes that the Indenture Trustee or the Owner Trustee


knows to be so owned shall be so disregarded. Owners of Notes that have been


pledged in good faith may be regarded as Holders if the pledgee establishes to


the satisfaction of the Indenture Trustee or the Owner Trustee the pledgee's


right so to act with respect to such Notes and that the pledgee is not the


Issuing Entity, any other obligor upon the Notes or any Affiliate of any of the


foregoing Persons. Any bonds on which payments are made under the Note Insurance


Policy shall be deemed Outstanding until the Note Insurer has been reimbursed


with respect thereto and the Note Insurer shall be deemed the Noteholder thereof


to the extent of such unreimbursed payment.


 


NOTES:  The Notes designated as the "Notes" in the Indenture.


 


NRSRO:  Any nationally recognized statistical rating organization for purposes of Rule 17g-5 under the Exchange Act.


 


NRSRO CERTIFICATION:  A certification in the form of Exhibit G to the Servicing Agreement.


 


OFFICER'S CERTIFICATE: With respect to the Master Servicer, a


certificate signed by the President, Managing Director, a Director, a Vice


President or an Assistant Vice President, of the Master Servicer and delivered


to the Indenture Trustee. With respect to the Issuing Entity, a certificate


signed by any Authorized Officer of the Issuing Entity, under the circumstances


described in, and otherwise complying with, the applicable requirements of


Section 10.01 of the Indenture, and delivered to the Indenture Trustee. Unless


otherwise specified, any reference in the Indenture to an Officer's Certificate


shall be to an Officer's Certificate of any Authorized Officer of the Issuing


Entity.


 


ONE-MONTH LIBOR: With respect to any Interest Period, the rate


determined by the Indenture Trustee on the related Interest Determination Date


on the basis of the offered rates of the Reference Banks for one-month United


States dollar deposits, as such rates appear on the Reuters Screen LIBOR Page,


as of 11:00 a.m. (London time) on such Interest Determination Date. On each


Interest Determination Date, One-Month LIBOR for the related Interest Period


will be established by the Indenture Trustee as follows:


 


(i) If on such Interest Determination Date two or more


Reference Banks provide such offered quotations, One-Month LIBOR for


the related Interest Period shall be the arithmetic mean of such


offered quotations (rounded upwards if necessary to the nearest whole


multiple of 1/16%).


 


(ii) If on such Interest Determination Date fewer than two


Reference Banks provide such offered quotations, One-Month LIBOR for


the related Interest Period shall be the higher of (i) One-Month LIBOR


as determined on the previous Interest Determination Date and (ii) the


Reserve Interest Rate.


 


OPINION OF COUNSEL: A written opinion of counsel acceptable to Note


Insurer who may be in-house counsel for the Master Servicer if acceptable to the


Indenture Trustee, the Note Insurer and the Rating Agencies or counsel for the


Depositor, as the case may be.


 


ORIGINAL SPECIFIED SUBORDINATION AMOUNT: An amount equal to ____% of


the aggregate Principal Balance of the Mortgage Loans as of the Cut-Off Date.


 


ORIGINAL VALUE: Except in the case of a refinance Mortgage Loan, the


lesser of the Appraised Value or sales price of Mortgaged Property at the time a


Mortgage Loan is closed, and for a refinance Mortgage Loan, the Original Value


is the value of such property set forth in an appraisal acceptable to the Master


Servicer.


 


ORIGINATOR:  Each of [_________], as applicable, and any successor thereto.


 


OUTSTANDING: With respect to the Notes, as of the date of


determination, all Notes theretofore executed, authenticated and delivered under


this Indenture except:


 


(i) Notes theretofore cancelled by the Note Registrar or


delivered to the Indenture Trustee for cancellation; and


 


(ii) Notes in exchange for or in lieu of which other Notes


have been executed, authenticated and delivered pursuant to the


Indenture unless proof satisfactory to the Indenture Trustee is


presented that any such Notes are held by a holder in due course;


 


(iii) Notes that have been paid with funds provided under


the Note Insurance Policy shall be deemed to be Outstanding until the


Note Insurer has been reimbursed with respect thereto.


 


OWNER TRUST: The Opteum Mortgage Acceptance Corporation MBN Trust Series


20__-_ to be created pursuant to the Trust Agreement.


 


OWNER TRUST ESTATE: The corpus of the Issuing Entity created by the


Trust Agreement which consists of items in Section 2.01 of the Trust Agreement.


 


OWNER TRUSTEE: ________________________ and its successors and assigns


or any successor owner trustee appointed pursuant to the terms of the Trust


Agreement.


 


OWNER TRUSTEE FEE:


 


OWNER TRUSTEE FEE RATE: ______% per annum.


 


PAYING AGENT: Any paying agent or co-paying agent appointed pursuant


to Section 3.03 of the Indenture, which initially shall be the Indenture


Trustee.


 


PAYMENT ACCOUNT: The account established by the Indenture Trustee


pursuant to Section 8.02 of the Indenture and Section 4.03 of the Servicing


Agreement. The Payment Account shall be an Eligible Account.


 


PAYMENT DATE: The 25th day of each month, or if such day is not a


Business Day, then the next Business Day.


 


PERCENTAGE INTEREST: With respect to any Note, the percentage obtained


by dividing the Note Principal Balance of such Note by the aggregate of the Note


Principal Balances of all Notes. With respect to any Certificate, the percentage


on the face thereof.


 


PERSON: Any individual, corporation, partnership, joint venture,


association, joint-stock company, trust, unincorporated organization or


government or any agency or political subdivision thereof.


 


POOL BALANCE: With respect to any date, the aggregate of the Principal


Balances of all Mortgage Loans as of such date.


 


PREFERENCE AMOUNT: Any amount previously distributed to an Owner on the


Notes that is recoverable and sought to be recovered as a voidable preference by


a trustee in bankruptcy pursuant to the United States Bankruptcy Code (11


U.S.C.), as amended from time to time, in accordance with a final nonappealable


order of a court having competent jurisdiction.


 


PREMIUM AMOUNT: The amount of premium due to the Note Insurer in


accordance with the terms of the Insurance Agreement.


 


PREPAYMENT INTEREST SHORTFALL: As to any Payment Date and any Mortgage


Loan (other than a Mortgage Loan relating to an REO Property) that was the


subject of (a) a Principal Prepayment in full during the related Prepayment


Period, an amount equal to the excess of interest accrued during the related


Prepayment Period at the Net Mortgage Rate on the Principal Balance of such


Mortgage Loan over the amount of interest (adjusted to the Net Mortgage Rate)


paid by the Mortgagor for such Prepayment Period to the date of such Principal


Prepayment in full or (b) a partial Prepayment during the prior calendar month,


an amount equal to interest accrued during the related Prepayment Period at the


Net Mortgage Rate on the amount of such partial Prepayment.


 


PREPAYMENT PERIOD: As to any Payment Date, the calendar month preceding


the month of distribution.


 


PRIMARY INSURANCE POLICY: Each primary policy of mortgage guaranty


insurance issued by a Qualified Insurer or any replacement policy therefor.


 


PRINCIPAL BALANCE: With respect to any Mortgage Loan or related REO


Property, at any given time, (i) the Cut-off Date Principal Balance of the


Mortgage Loan, minus (ii) the sum of (a) the principal portion of the Monthly


Payments due with respect to such Mortgage Loan or REO Property during each Due


Period ending prior to the most recent Payment Date which were received or with


respect to which an Advance was made, and (b) all Principal Prepayments with


respect to such Mortgage Loan or REO Property, and all Insurance Proceeds,


Liquidation Proceeds and REO Proceeds, to the extent applied by the Master


Servicer as recoveries of principal in accordance with the Servicing Agreement


with respect to such Mortgage Loan or REO Property, and (c) any Realized Loss


with respect thereto for any previous Payment Date.


 


PRINCIPAL PAYMENT AMOUNT: With respect to any Payment Date (a) other


than the Final Scheduled Payment Date, and the first Payment Date following any


acceleration of the Notes following an Event of Default, the lesser of (a) the


sum of the Available Funds remaining after distributions pursuant to clause (i)


of Section 3.05 of the Indenture and any portion of any Insured Payment for such


Payment Date representing a Subordination Deficit and (b) the sum of:


 


(1) the principal portion of all Monthly Payments received during the


related Due Period or advanced on each Mortgage Loan;


 


(2) the Principal Balance of any Mortgage Loan repurchased during the


related Prepayment Period (or deemed to have been so repurchased) pursuant to


the Mortgage Loan Purchase Agreement or Section 3.18 of the Servicing Agreement


and the amount of any Substitution Adjustment Amounts during the related


Prepayment Period;


 


(3) the principal portion of all other unscheduled collections


(including, without limitation, Principal Prepayments in full, partial


Prepayments, Insurance Proceeds, Liquidation Proceeds and REO Proceeds) received


during the related Prepayment Period to the extent applied by the Master


Servicer as payments or recoveries of principal of the related Mortgage Loan;


 


(4) any Insured Payment made with respect to any Subordination Deficit;


and


 


MINUS


 


(5) the amount of any Subordination Reduction Amount for such Payment


Date;


 


and (b) with respect to the Final Scheduled Payment Date, and the first


Payment Date following any acceleration of the Notes following an Event of


Default, the amount necessary to reduce the Note Principal Balance to zero.


 


PRINCIPAL PREPAYMENT: Any payment of principal made by the Mortgagor on


a Mortgage Loan which is received in advance of its scheduled Due Date and which


is not accompanied by an amount of interest representing scheduled interest due


on any date or dates in any month or months subsequent to the month of


prepayment.


 


PROCEEDING: Any suit in equity, action at law or other judicial or


administrative proceeding.


 


PURCHASE PRICE: The meaning specified in Section 2.2(a) of the


Mortgage Loan Purchase Agreement.


 


PURCHASER: _________________________, a ____________ corporation, and


its successors and assigns.


 


QUALIFIED INSURER: A mortgage guaranty insurance company duly qualified


as such under the laws of the state of its principal place of business and each


state having jurisdiction over such insurer in connection with the insurance


policy issued by such insurer, duly authorized and licensed in such states to


transact a mortgage guaranty insurance business in such states and to write the


insurance provided by the insurance policy issued by it, approved as an insurer


by the Master Servicer and as a FNMA-approved mortgage insurer.


 


RATING AGENCY: Any nationally recognized statistical rating


organization, or its successor, that rated the Notes at the request of the


Depositor at the time of the initial issuance of the Notes. Initially, Moody's


or Standard & Poor's. If such organization or a successor is no longer in


existence, "Rating Agency" shall be such nationally recognized statistical


rating organization, or other comparable Person, designated by the Note Insurer


so long as no Note Insurer Default exists, notice of which designation shall be


given to the Indenture Trustee. References herein to the highest short term


unsecured rating category of a Rating Agency shall mean A-1 or better in the


case of Standard & Poor's and P-1 or better in the case of Moody's and in the


case of any other Rating Agency shall mean such equivalent ratings. References


herein to the highest long-term rating category of a Rating Agency shall mean


"AAA" in the case of Standard & Poor's and "Aaa" in the case of Moody's and in


the case of any other Rating Agency, such equivalent rating.


 


RATING AGENCY INFORMATION:  The notices, information, reports, certifications and oral and written statements required to be provided to a Rating Agency pursuant to the Basic Documents or Rule 17g-5 under the Exchange Act.


 


REALIZED LOSS: With respect to each Mortgage Loan (or REO Property) as


to which a Cash Liquidation or REO Disposition has occurred, an amount (not less


than zero) equal to (i) the Principal Balance of the Mortgage Loan (or REO


Property) as of the date of Cash Liquidation or REO Disposition, plus (ii)


interest (and REO Imputed Interest, if any) at the Net Mortgage Rate from the


Due Date as to which interest was last paid or advanced to Noteholders up to the


last day of the month in which the Cash Liquidation (or REO Disposition)


occurred on the Principal Balance of such Mortgage Loan (or REO Property)


outstanding during each Due Period that such interest was not paid or advanced,


minus (iii) the proceeds, if any, received during the month in which such Cash


Liquidation (or REO Disposition) occurred, to the extent applied as recoveries


of interest at the Net Mortgage Rate and to principal of the Mortgage Loan, net


of the portion thereof reimbursable to the Master Servicer or any Subservicer


with respect to related Advances or expenses as to which the Master Servicer or


Subservicer is entitled to reimbursement thereunder but which have not been


previously reimbursed. With respect to each Mortgage Loan which has become the


subject of a Deficient Valuation, the difference between the principal balance


of the Mortgage Loan outstanding immediately prior to such Deficient Valuation


and the principal balance of the Mortgage Loan as reduced by the Deficient


Valuation. With respect to each Mortgage Loan which has become the object of a


Debt Service Reduction, the amount of such Debt Service Reduction.


 


RECORD DATE: With respect to the Notes and any Payment Date, the last


day of the calendar month preceding such Payment Date.


 


REFERENCE BANKS: Bankers Trust Company, Barclay's Bank PLC, The Bank of


Tokyo and National Westminster Bank PLC and their successors in interest;


provided that if any of the foregoing banks are not suitable to serve as a


Reference Bank, then any leading banks selected by the Indenture Trustee which


are engaged in transactions in Eurodollar deposits in the international


Eurocurrency market (i) with an established place of business in London, (ii)


not controlling, under the control of or under common control with the Company


or any Affiliate thereof, (iii) whose quotations appear on the Reuters Screen


LIBO Page on the relevant Interest Determination Date and (iv) which have been


designated as such by the Indenture Trustee.


 


REGISTERED HOLDER: The Person in whose name a Note is registered in the


Note Register on the applicable Record Date.


 


RELATED DOCUMENTS: With respect to each Mortgage Loan, the documents


specified in Section 2.1(b) of the Mortgage Loan Purchase Agreement and any


documents required to be added to such documents pursuant to the Mortgage Loan


Purchase Agreement, the Trust Agreement, Indenture or the Servicing Agreement.


 


RELIEF ACT: The Servicemembers Civil Relief Act, as amended.







RELIEF ACT SHORTFALL: For any Payment Date, As to any Payment Date and


any Mortgage Loan (other than a Mortgage Loan relating to an REO Property) any


shortfalls relating to the Relief Act or similar legislation or regulations.


 


REO ACQUISITION: The acquisition by the Master Servicer on behalf of


the Indenture Trustee for the benefit of the Noteholders of any REO Property


pursuant to Section 3.13 of the Servicing Agreement.


 


REO DISPOSITION: As to any REO Property, a determination by the Master


Servicer that it has received substantially all Insurance Proceeds, Liquidation


Proceeds, REO Proceeds and other payments and recoveries (including proceeds of


a final sale) which the Master Servicer expects to be finally recoverable from


the sale or other disposition of the REO Property.


 


REO IMPUTED INTEREST: As to any REO Property, for any period, an amount


equivalent to interest (at the Net Mortgage Rate that would have been applicable


to the related Mortgage Loan had it been outstanding) on the unpaid principal


balance of the Mortgage Loan as of the date of acquisition thereof for such


period.


 


REO PROCEEDS: Proceeds, net of expenses, received in respect of any REO


Property (including, without limitation, proceeds from the rental of the related


Mortgaged Property) which proceeds are required to be deposited into the


Collection Account only upon the related REO Disposition.


 


REO PROPERTY: A Mortgaged Property that is acquired by the Issuing


Entity in foreclosure or by deed in lieu of foreclosure.


 


REPURCHASE EVENT: With respect to any Mortgage Loan, either (i) a


discovery that, as of the Closing Date the related Mortgage was not a valid lien


on the related Mortgaged Property subject only to (A) the lien of any prior


mortgage indicated on the Mortgage Loan Schedule, (B) the lien of real property


taxes and assessments not yet due and payable, (C) covenants, conditions, and


restrictions, rights of way, easements and other matters of public record as of


the date of recording of such Mortgage and such other permissible title


exceptions as are permitted and (D) other matters to which like properties are


commonly subject which do not materially adversely affect the value, use,


enjoyment or marketability of the related Mortgaged Property or (ii) with


respect to any Mortgage Loan as to which the Seller delivers an affidavit


certifying that the original Mortgage Note has been lost or destroyed, a


subsequent default on such Mortgage Loan if the enforcement thereof or of the


related Mortgage is materially and adversely affected by the absence of such


original Mortgage Note.


 


REPURCHASE PRICE: With respect to any Mortgage Loan required to be


repurchased on any date pursuant to the Mortgage Loan Purchase Agreement or


purchased by the Master Servicer pursuant to the Servicing Agreement, an amount


equal to the sum, without duplication, of (i) 100% of the Principal Balance


thereof (without reduction for any amounts charged off) and (ii) unpaid accrued


interest at the Mortgage Rate on the outstanding principal balance thereof from


the Due Date to which interest was last paid by the Mortgagor to the first day


of the month following the month of purchase plus (iii) the amount of Advances


and any unreimbursed Servicing Advances or unreimbursed Advances made with


respect to such Mortgage Loan plus (iv) any other amounts owed to the Master


Servicer or the Subservicer pursuant to Section 3.07 of the Servicing Agreement


not included in clause (iii) of this definition.


 


REQUIRED SUBORDINATION AMOUNT: With respect to any Payment Date


occurring from the initial Payment Date and ending on the later of (i) the date


on which the aggregate Principal Balance of the Mortgage Loans is 50% of the


initial aggregate Principal Balance of the Mortgage Loans and (ii) the 30th


Payment Date, the greater of:


 


(a) the Original Specified Subordination Amount; and


 


(b) two times the excess of (1) 50% of the aggregate Principal Balance


of the Mortgage Loans which are 91 or more days delinquent (including Mortgage


Loans in foreclosure and REO Properties) as of such date over (2) two times the


current Net Monthly Excess Cash Flow for such Payment Date; and


 


with respect to any Payment Date thereafter, the greatest of:


 


(c) the lesser of (1) the Original Specified Subordination Amount and


(2) two times ____% times the aggregate Note Principal Balance as of such


Payment Date;


 


(d) two times the excess of (A) 50% of the aggregate Principal Balance


of the Mortgage Loans which are 91 or more days delinquent (including Mortgage


Loans in foreclosure and REO Properties) as of such date over (B) two times the


current Net Monthly Excess Cash Flow for such Payment Date;


 


(e) 0.5% of the Cut-Off Date Principal Balance of the Mortgage Loans;


and


 


(f) an amount equal to the outstanding balance of the four largest


Mortgage Loans as of the Cut-Off Date;


 


Provided, however, that if (x) a Servicer Default has occurred and is continuing


as of such Payment Date, and such Servicer Default has not been waived by the


Note Insurer or (y) a claim has been made on the Note Insurance Policy by the


Indenture Trustee, the Required Subordination Amount shall not decrease on any


Payment Date.


 


RESERVE INTEREST RATE: With respect to any Interest Determination Date,


the rate per annum that the Indenture Trustee determines to be either (i) the


arithmetic mean (rounded upwards if necessary to the nearest whole multiple of


1/16%) of the three-month United States dollar lending rates which New York City


banks selected by the Indenture Trustee are quoting on the relevant Interest


Determination Date to the principal London offices of leading banks in the


London interbank market or (ii) in the event that the Indenture Trustee can


determine no such arithmetic mean, the lowest three-month United States dollar


lending rate which New York City banks selected by the Indenture Trustee are


quoting on such Interest Determination Date to leading European banks.


 


RESPONSIBLE OFFICER: With respect to the Indenture Trustee, any officer


of the Indenture Trustee with direct responsibility for the administration of


the Trust Agreement and also, with respect to a particular matter, any other


officer to whom such matter is referred because of such officer's knowledge of


and familiarity with the particular subject.


 


RULE 15GA-1 INFORMATION:  As defined in Section 3.18(a) of the Servicing Agreement.


 


RULE 17G-5 INFORMATION PROVIDER:  The [_______].


 


RULE 17G-5 WEBSITE:  The website maintained by the [________] pursuant to Section 3.30.


 


SECTION 404 NOTICE:  The notice required under Section 404 of the Homes Act.


 


SECURITIES ACT: The Securities Act of 1933, as amended, and the rules


and regulations promulgated thereunder.


 


SECURITY:  Any of the Certificates or Notes.


 


SECURITYHOLDER OR HOLDER: Any Noteholder or a Certificateholder.


 


SECURITY INSTRUMENT: A written instrument creating a valid first lien


on a Mortgaged Property securing a Mortgage Note, which may be any applicable


form of mortgage, deed of trust, deed to secure debt or security deed, including


any riders or addenda thereto.


 


SELLER: _______________________, a __________ corporation, and its


successors and assigns.


 


SERVICING ACCOUNT: The separate trust account created and maintained by


the Master Servicer or each Subservicer with respect to the Mortgage Loans or


REO Property, which shall be an Eligible Account, for collection of taxes,


assessments, insurance premiums and comparable items as described in Section


3.08 of the Servicing Agreement.


 


SERVICING ADVANCES: All customary, reasonable and necessary "out of


pocket" costs and expenses incurred in connection with a default, delinquency or


other unanticipated event in the performance by the Master Servicer of its


servicing obligations, including, without duplication, but not limited to, the


cost of (i) the preservation, restoration and protection of a Mortgaged


Property, (ii) any enforcement or judicial proceedings, including foreclosures,


(iii) the management and liquidation of any REO Property and (iv) compliance


with the obligations under Sections 3.10, 3.11, 3.13 of the Servicing Agreement.


 


SERVICING AGREEMENT: The Servicing Agreement dated as of ______ __,


20__, between the Master Servicer and the Issuing Entity.


 


SERVICING CERTIFICATE: A certificate completed and executed by a


Servicing Officer on behalf of the Master Servicer in accordance with Section


4.01 of the Servicing Agreement.


 


SERVICING DEFAULT: The meaning assigned in Section 6.01 of the


Servicing Agreement.


 


SERVICING FEE: With respect to any Mortgage Loan, the sum of the


related Master Servicing Fee and the related Subservicing Fee.


 


SERVICING FEE RATE: With respect to any Mortgage Loan, the sum of the


related Master Servicing Fee Rate and the Subservicing Fee Rate.


 


SERVICING OFFICER: Any officer of the Master Servicer involved in, or


responsible for, the administration and servicing of the Mortgage Loans whose


name and specimen signature appear on a list of servicing officers furnished to


the Indenture Trustee (with a copy to the Note Insurer) by the Master Servicer,


as such list may be amended from time to time.


 


SINGLE NOTE:  A Note in the amount of $1,000.


 


STANDARD & POOR'S: Standard & Poor's Ratings Service, or its successor


in interest.


 


SUBORDINATION AMOUNT: As of any Payment Date, the excess, if any, of


(x) the sum of the aggregate Principal Balances of the Mortgage Loans as of the


close of business on the last day of the related Due Period as of such Payment


Date over (y) the Note Principal Balance of the Notes as of such Payment Date


(and following the making of all distributions on such Payment Date)


 


SUBORDINATION DEFICIT: With respect to any Payment Date, the amount, if


any, by which (x) the aggregate Note Principal Balance of the Notes as of such


Payment Date, and following the making of all distributions to be made on such


Payment Date (except for any payment to be made as to principal from proceeds of


the Note Insurance Policy), exceeds (y) the aggregate Principal Balances of the


Mortgage Loans as of the close of business on the preceding Due Date on such


Payment Date.


 


SUBORDINATION INCREASE AMOUNT: With respect to any Payment Date, the


amount of any Net Monthly Excess Cashflow (including any Subordination Reduction


Amount) available in the Payment Account to increase the Subordination Amount up


to the Required Subordination Amount.


 


SUBORDINATION REDUCTION AMOUNT: With respect to any Payment Date, an


amount equal to the lesser of (a) the Excess Subordination Amount and (b) the


principal collections received by the Master Servicer with respect to the prior


Due Period.


 


SUBSERVICER: Any Person with whom the Master Servicer has entered into


a Subservicing Agreement as a Subservicer by the Master Servicer and acceptable


to the Note Insurer and the Indenture Trustee, including the Initial


Subservicers.


 


SUBSERVICING ACCOUNT: An Eligible Account established or maintained by


a Sub servicer as provided for in Section 3.06(e) of the Servicing Agreement.


 


SUBSERVICING AGREEMENT: The written contract between the Master


Servicer and any Subservicer relating to servicing and administration of certain


Mortgage Loans as provided in Section 3.02 of the Servicing Agreement.


 


SUBSERVICING FEE: With respect to each Mortgage Loan and any date of


determination, the product of (i) the Subservicing Fee Rate divided by 12 and


(ii) the Principal Balance of such Mortgage Loans as of such date.


 


SUBSERVICING FEE RATE: For any date of determination, ____% per annum.


 


SUBSTITUTION ADJUSTMENT AMOUNT: With respect to any Eligible


Substitute Mortgage Loan, the amount as defined in Section 2.03 of the Servicing


Agreement.


 


TELERATE SCREEN PAGE 3750: The display designated as page 3750 on the


Telerate Service (or such other page as may replace page 3750 on that service


for the purpose of displaying London interbank offered rates of major banks). If


such rate does not appear on such page (or such other page as may replace that


page on that service, or if such service is no longer offered, such other


service for displaying One-Month LIBOR or comparable rates as may be selected by


the Issuing Entity after consultation with the Indenture Trustee), the rate will


be the Reference Bank Rate.


 


TREASURY REGULATIONS: Regulations, including proposed or temporary


Regulations, promulgated under the Code. References herein to specific


provisions of proposed or temporary regulations shall include analogous


provisions of final Treasury Regulations or other successor Treasury


Regulations.


 


TRUST AGREEMENT: The Trust Agreement dated as of ______ __, 20__


between the Owner Trustee and the Depositor.


 


TRUST ESTATE: The meaning specified in the Granting Clause of the


Indenture.


 


TRUST INDENTURE ACT OR TIA: The Trust Indenture Act of 1939, as amended


from time to time, as in effect on any relevant date.


 


UCC: The Uniform Commercial Code, as amended from time to time, as in


effect in any specified jurisdiction.


 


WEIGHTED AVERAGE NET MORTGAGE RATE: With respect to the Mortgage Loans


in the aggregate, and any Due Date, the average of the Net Mortgage Rate for


each Mortgage Loan as of the last day of the related Due Period weighted on the


basis of the related Principal Balances outstanding as of the last day of the


related Due Period for each Mortgage Loan as determined by the Master Servicer


in accordance with the Master Servicer's normal servicing procedures.