Exhibit 99.2
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XXXXX ASSET SECURITIZATION, INC.,
as Depositor
[ - ],
as Owner Trustee
and
[ - ],
as Securities Administrator
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OWNER TRUST AGREEMENT
Dated as of _________ __, 200_
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Luminent Mortgage Trust 200_-_
Mortgage-Backed Notes, Series 200_-_
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
SECTION 1.1 DEFINITIONS............................................. 1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS........................... 3
ARTICLE II ORGANIZATION.................................................. 4
SECTION 2.1 NAME.................................................... 4
SECTION 2.2 OFFICE.................................................. 4
SECTION 2.3 PURPOSE AND POWERS...................................... 5
SECTION 2.4 APPOINTMENT OF THE OWNER TRUSTEE........................ 5
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION; DECLARATION OF TRUST...... 6
SECTION 2.6 ISSUANCE OF INITIAL OWNERSHIP CERTIFICATE............... 6
SECTION 2.7 LIABILITY OF THE OWNERSHIP CERTIFICATEHOLDER............ 6
SECTION 2.8 SITUS OF TRUST.......................................... 6
SECTION 2.9 TITLE TO TRUST PROPERTY................................. 7
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR......... 7
SECTION 2.11 TAX TREATMENT........................................... 8
SECTION 2.12 INVESTMENT COMPANY...................................... 9
ARTICLE III THE OWNERSHIP CERTIFICATE AND TRANSFERS OF INTERESTS......... 9
SECTION 3.1 THE OWNERSHIP CERTIFICATE............................... 9
SECTION 3.2 EXECUTION, AUTHENTICATION AND DELIVERY OF THE OWNERSHIP
CERTIFICATE............................................. 10
SECTION 3.3 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF THE OWNERSHIP CERTIFICATE............................ 10
SECTION 3.4 LOST, STOLEN, MUTILATED OR DESTROYED OWNERSHIP
CERTIFICATE............................................. 12
SECTION 3.5 PERSONS DEEMED OWNERSHIP CERTIFICATEHOLDER.............. 13
SECTION 3.6 ACCESS TO THE OWNERSHIP CERTIFICATEHOLDER'S NAME AND
ADDRESS................................................. 13
SECTION 3.7 MAINTENANCE OF OFFICE OR AGENCY......................... 13
SECTION 3.8 CERTIFICATE PAYING AGENT................................ 13
SECTION 3.9 INITIAL BENEFICIARY..................................... 14
ARTICLE IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.................... 15
SECTION 4.1 COLLECTION ACCOUNT...................................... 15
SECTION 4.2 APPLICATION OF TRUST FUNDS.............................. 15
SECTION 4.3 METHOD OF PAYMENT....................................... 15
SECTION 4.4 SEGREGATION OF MONEYS; NO INTEREST...................... 15
ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY
CERTIFICATEHOLDERS............................................. 16
SECTION 5.1 GENERAL AUTHORITY....................................... 16
SECTION 5.2 GENERAL DUTIES.......................................... 16
SECTION 5.3 ACTION UPON INSTRUCTION................................. 16
SECTION 5.4 NO DUTIES EXCEPT AS SPECIFIED UNDER SPECIFIED DOCUMENTS
OR IN INSTRUCTIONS...................................... 17
SECTION 5.5 RESTRICTIONS............................................ 18
SECTION 5.6 NEGATIVE COVENANTS...................................... 18
SECTION 5.7 ACTION BY THE OWNERSHIP CERTIFICATEHOLDER WITH RESPECT
TO BANKRUPTCY........................................... 20
SECTION 5.8 RESTRICTIONS ON THE OWNER CERTIFICATEHOLDER'S POWER..... 20
ARTICLE VI CONCERNING THE OWNER TRUSTEE.................................. 21
SECTION 6.1 ACCEPTANCE OF TRUSTS AND DUTIES......................... 21
SECTION 6.2 FURNISHING OF DOCUMENTS................................. 22
SECTION 6.3 BOOKS AND RECORDS....................................... 22
SECTION 6.4 REPRESENTATIONS AND WARRANTIES.......................... 22
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL............................. 24
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TABLE OF CONTENTS
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SECTION 6.6 NOT ACTING IN INDIVIDUAL CAPACITY....................... 25
SECTION 6.7 OWNER TRUSTEE NOT LIABLE FOR OWNERSHIP CERTIFICATE OR
TRUST FUND.............................................. 25
SECTION 6.8 OWNER TRUSTEE MAY OWN OWNERSHIP CERTIFICATE AND NOTES... 25
SECTION 6.9 LICENSES................................................ 26
SECTION 6.10 DOING BUSINESS IN OTHER JURISDICTIONS................... 26
SECTION 6.11 XXXXXXXX-XXXXX ACT CERTIFICATION........................ 26
ARTICLE VII INDEMNIFICATION AND COMPENSATION............................. 26
SECTION 7.1 TRUST EXPENSES.......................................... 26
SECTION 7.2 INDEMNIFICATION......................................... 27
SECTION 7.3 COMPENSATION............................................ 27
ARTICLE VIII TERMINATION OF AGREEMENT.................................... 27
SECTION 8.1 TERMINATION OF AGREEMENT................................ 27
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES........ 28
SECTION 9.1 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.............. 28
SECTION 9.2 RESIGNATION OR REMOVAL OF OWNER TRUSTEE................. 28
SECTION 9.3 SUCCESSOR OWNER TRUSTEE................................. 29
SECTION 9.4 MERGER OR CONSOLIDATION OF OWNER TRUSTEE................ 30
SECTION 9.5 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE........... 30
ARTICLE X MISCELLANEOUS.................................................. 31
SECTION 10.1 SUPPLEMENTS AND AMENDMENTS.............................. 31
SECTION 10.2 NO LEGAL TITLE TO TRUST FUND IN OWNERSHIP
CERTIFICATEHOLDER....................................... 33
SECTION 10.3 PLEDGE OF TRUST FUND BY OWNER TRUSTEE IS BINDING........ 33
SECTION 10.4 LIMITATIONS ON RIGHTS OF OTHERS......................... 33
SECTION 10.5 NOTICES................................................. 33
SECTION 10.6 SEVERABILITY............................................ 34
SECTION 10.7 SEPARATE COUNTERPARTS................................... 34
SECTION 10.8 SUCCESSORS AND ASSIGNS.................................. 34
SECTION 10.9 HEADINGS................................................ 34
SECTION 10.10 GOVERNING LAW........................................... 34
SECTION 10.11 NO PETITION............................................. 34
SECTION 10.12 NO RECOURSE............................................. 35
ARTICLE XI TRUST OFFICERS................................................ 35
SECTION 11.1 APPOINTMENT OF TRUST OFFICERS........................... 35
SECTION 11.2 TRUST OFFICERS TO PROVIDE INFORMATION TO THE OWNER
TRUSTEE................................................. 35
EXHIBITS
Exhibit A Form of Ownership Certificate
Exhibit B Form of Certificate of Trust
Exhibit C-1 Form of Rule 144A Investment Letter
Exhibit C-2 Form of Non-Rule 144A Investment Letter
Exhibit D Form of Representation and Warranty Regarding Transferee's Status
For Tax Matters
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This OWNER TRUST AGREEMENT, dated as of _______ __, 200_, is entered into
by and among XXXXX ASSET SECURITIZATION, INC., a Delaware corporation, as
depositor (the "DEPOSITOR"), _________________, a Delaware banking corporation,
as owner trustee (the "OWNER TRUSTEE"), and _________________, as securities
administrator (the "SECURITIES ADMINISTRATOR").
WHEREAS, pursuant to the Transfer and Servicing Agreement, the Depositor
intends to sell, transfer and assign to a Delaware statutory trust created
hereunder certain Mortgage Loans and related assets, which statutory trust would
then pledge such assets under an indenture in order to secure the issuance of
its asset-backed notes, the net proceeds of which would be applied toward the
purchase of such assets.
WHEREAS, the Depositor, the Owner Trustee and the Securities Administrator
desire to enter into this Agreement in order to provide for the establishment
and operation of the Trust upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the promises and mutual agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
For all purposes of this Agreement, the following terms shall have the
meanings set forth below.
ACTUAL KNOWLEDGE: With respect to the Owner Trustee, any Trust Officer
within the Corporate Trust Office of the Owner Trustee responsible for
administering the Trust hereunder, or under the Operative Agreements, who has
actual knowledge of an action taken or an action not taken with regard to the
Trust. Actions taken or actions not taken of which the Owner Trustee should have
had knowledge, or has constructive knowledge, do not meet the definition of
Actual Knowledge hereunder. With respect to the Securities Administrator, any
Responsible Officer of the Securities Administrator who has actual knowledge of
an action taken or an action not taken with regard to the Trust. Actions taken
or actions not taken of which the Securities Administrator should have had
knowledge, or has constructive knowledge, do not meet the definition of Actual
Knowledge hereunder.
AGREEMENT: This Owner Trust Agreement and any amendments or modifications
hereof.
AUTHORIZED TRUST OFFICER: With respect to the Trust, any Trust Officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Trust and who is identified on the list of Authorized Trust
Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Transfer and Servicing Agreement is in effect, a Responsible
Officer of the Securities Administrator.
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BANK: __________________ in its individual capacity and not as Owner
Trustee under this Agreement.
CERTIFICATE OF TRUST: The Certificate of Trust to be filed by the Owner
Trustee for the Trust pursuant to Section 3810(a) of the Delaware Trust Statute
in the form of Exhibit B hereto.
CERTIFICATE PAYING AGENT: Initially, the Securities Administrator, in its
capacity as Certificate Paying Agent.
CERTIFICATE REGISTER: The register maintained by the Certificate Registrar
in which the Certificate Registrar shall provide for the registration of the
Ownership Certificates and of transfers and exchanges of such Ownership
Certificates.
CERTIFICATE REGISTRAR: Initially, the Securities Administrator, in its
capacity as Certificate Registrar.
CORPORATE TRUST OFFICE: With respect to the Owner Trustee, the principal
corporate trust office of the Owner Trustee at which, any particular time its
corporate trust business shall be administered, which office at the date of
execution of this Agreement is located at ____________________, Attention:
_________________. With respect to the Securities Administrator, as defined in
the Transfer and Servicing Agreement.
DELAWARE TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code, 12
Del.C. Section 3801 et seq., as the same may be amended from time to time.
EXPENSES: As defined in Section 7.2.
INDENTURE: The Indenture dated as of ________ __, 200_, among the Issuer,
the Securities Administrator and the Indenture Trustee.
INITIAL OWNERSHIP CERTIFICATEHOLDER: _________________, in the case of the
Ownership Certificate.
NET PROCEEDS: The proceeds received by the Trust from time to time from the
issuance and sale of its Notes and the Ownership Certificate, less the costs and
expenses incurred in connection with the issuance and sale of the Notes and the
Ownership Certificate.
OUTSTANDING BALANCE: As defined in the Indenture.
OWNER TRUSTEE: ____________________, and any successor in interest, not in
its individual capacity, but solely as owner trustee under the Agreement.
OWNERSHIP CERTIFICATE: An equity certificate representing a 100% undivided
beneficial interest in the Trust in substantially the form annexed hereto as
part of Exhibit A.
OWNERSHIP CERTIFICATEHOLDER: The Person in whose name the Ownership
Certificate is registered in the Certificate Register.
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PERCENTAGE INTEREST: With respect to any Ownership Certificate, the
percentage set forth on the face thereof.
PERMITTED TRANSFEREE: Means (i) a single entity that qualifies as (a) a
REIT, (b) a Qualified REIT Subsidiary, or (c) an entity that is disregarded for
federal income tax purposes that is wholly owned by a REIT or a Qualified REIT
Subsidiary, (ii) a lender or repurchase agreement counterparty in a repurchase
agreement or secured lending transaction that qualifies as a borrowing for
federal income tax purposes, or (iii) any other entity, provided that an opinion
of nationally recognized federal income tax counsel is obtained to the effect
that, as of the date of a transfer to such entity, the Trust will not be treated
as one or more taxable mortgage pools for federal income tax purposes.
PROSPECTIVE OWNERSHIP CERTIFICATEHOLDER: Each prospective purchaser and any
subsequent transferee of the Ownership Certificate.
QUALIFIED REIT SUBSIDIARY: A direct or indirect 100% owned subsidiary of a
REIT that satisfies the requirements of Section 856(i) of the Code.
REIT: A real estate investment trust within the meaning of Sections 856 and
857 of the Code.
RETAINED NOTES: Those certain Classes, or portions of certain Classes, of
Notes which, at the time of their issuance, are held by the beneficial owner of
the Ownership Certificate or one of its affiliates.
SECRETARY OF STATE: The Secretary of State of the State of Delaware.
TRANSFER AND SERVICING AGREEMENT: The Transfer and Servicing Agreement,
dated as of _______ __, 200_, by and among the Trust, the Sellers, the Servicer,
the Depositor, the Securities Administrator, the Originator, the Master
Servicer, and the Indenture Trustee, as such may be amended or supplemented from
time to time.
TRUST: The trust established pursuant to this Agreement which shall carry
on its business operations under the name "Luminent Mortgage Trust 200_-_."
TRUST OFFICER: Those Trust Officers of the Trust referred to in Article XI.
SECTION 1.2 Other Definitional Provisions.
Capitalized terms used herein and not defined herein shall have the same
meanings assigned to them in the Transfer and Servicing Agreement or in the
Indenture, as applicable.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
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(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
(e) 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
ORGANIZATION
SECTION 2.1 Name.
The trust established under this Agreement shall be referred to as
"Luminent Mortgage Trust 200_-_" in which name the Owner Trustee and the Trust
Officers may conduct the activities contemplated hereby, including the making
and executing of contracts and other instruments on behalf of the Trust and xxx
and be sued.
SECTION 2.2 Office.
The principal office of the Trust shall be in care of the Owner Trustee, at
its Corporate Trust Office.
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SECTION 2.3 Purpose and Powers.
The Trust shall have the power and authority to engage in any of the
following activities:
(a) to issue the Notes pursuant to the Indenture and the Ownership
Certificate pursuant to this Agreement and to sell, transfer and exchange such
Notes and Ownership Certificate;
(b) with the proceeds of the sale of the Notes and the Ownership
Certificate, to pay the organizational, start-up and transactional expenses of
the Trust and to pay the balance of the Net Proceeds to the Depositor in
consideration of the transfer to the Trust of the Mortgage Loans and related
assets that constitute, in part, the Trust Fund;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust Fund
pursuant to the Indenture Trustee and to hold, manage and distribute to the
Ownership Certificateholder pursuant to the terms of the Transfer and Servicing
Agreement any portion of the Trust Fund released from the lien of, and remitted
to the Trust, pursuant to the Indenture and the Transfer and Servicing
Agreement;
(d) to enter into and perform its obligations under the Cap Agreement and
the Operative Agreements to which it is to be a party;
(e) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(f) subject to compliance with the Operative Agreements, to engage in such
other activities as may be required in connection with conservation of the Trust
Fund and the making of distributions and payments to the Ownership
Certificateholder.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Operative Agreements.
SECTION 2.4 Appointment of the Owner Trustee.
The Depositor hereby appoints the Bank to act as Owner Trustee of the Trust
effective as of the date hereof to have all the rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
The Owner Trustee is hereby authorized to execute this Agreement, the
Indenture, the Transfer and Servicing Agreement and any other Operative
Agreement on behalf of the Trust. The Owner Trustee is hereby authorized (but
not obligated) to take all actions required or permitted to be taken by it in
accordance with the terms of this Agreement.
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SECTION 2.5 Initial Capital Contribution; Declaration of Trust.
(a) The Depositor hereby sells, assigns, transfers, conveys and sets over
to the Trust, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the Closing Date, of the
foregoing contribution, which shall constitute the initial corpus of the Trust
Fund. The Depositor shall pay organizational expenses of the Trust as they may
arise or shall, upon the request of the Owner Trustee, promptly reimburse the
Owner Trustee for any such expenses paid by the Owner Trustee.
(b) The Owner Trustee hereby declares that it will hold the Trust Fund in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Certificateholders, subject to the obligations of the Trust under
the Operative Agreements. It is the intention of the parties hereto that the
Trust shall constitute a statutory trust under the Delaware Trust Statute and
that this Agreement shall constitute the governing instrument of such statutory
trust. No later than the Closing Date, the Owner Trustee shall cause the filing
of the Certificate of Trust with the Secretary of State. Except as otherwise
provided in this Agreement, the rights of the Certificateholders will be those
of beneficial owners of the Trust.
SECTION 2.6 Issuance of Initial Ownership Certificate.
Upon the formation of the Trust by the initial contribution by the
Depositor pursuant to Section 2.5, the Owner Trustee will issue the Ownership
Certificate to the Initial Ownership Certificateholder.
SECTION 2.7 Liability of the Ownership Certificateholder.
The Ownership Certificateholder shall be liable directly to and shall
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent not paid out of the
Trust Fund); provided, however, that the Ownership Certificateholder shall not
be liable for payments required to be made to or for any losses incurred by a
Noteholder in the capacity of an investor in the Notes. In addition, any third
party creditors of the Trust (other than in connection with the obligations
described in the following sentence for which the Ownership Certificateholder
shall be liable) shall be deemed third party beneficiaries of this paragraph.
The Ownership Certificateholder shall be liable for any entity level taxes
imposed on the Trust. The obligations of the Ownership Certificateholder under
this paragraph shall be evidenced by the Ownership Certificate.
SECTION 2.8 Situs of Trust.
The Trust will be located in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located in the
States of Delaware, New York or the jurisdiction where the Securities
Administrator maintains bank accounts with respect to collections on the Trust
Fund. The only offices of the Trust will be as described in Section 2.2 hereof.
The Trust shall not have any employees; provided, however, that nothing herein
shall restrict or prohibit the Owner Trustee from having employees within or
without the State of Delaware. Payments will be received by the Trust only in
the States of Delaware, New York, the jurisdiction in which the Securities
Administrator maintains the Payment Account or such other jurisdiction
designated by the Depositor, and payments will be made by the Trust only from
the
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Payment Account or from Delaware, New York or such other jurisdiction designated
by the Depositor.
SECTION 2.9 Title to Trust Property.
(a) Subject to the Indenture, title to all of the Trust Fund shall be
vested at all times in the Trust as a separate legal entity until this Agreement
terminates pursuant to Article VIII hereof; provided, however, that if the laws
of any jurisdiction require that title to any part of the Trust Fund be vested
in the trustee of the Trust, then title to that part of the Trust Fund shall be
deemed to be vested in the Owner Trustee or any co-trustee or separate trustee,
as the case may be, appointed pursuant to Article IX of this Agreement;
provided, further, that title to any property may be transferred to the
Indenture Trustee for purposes of securing the lien created under the Indenture.
(b) The Ownership Certificateholder shall have beneficial but not legal
title to any part of the Trust Fund. No transfer by operation of law or
otherwise of any interest of the Ownership Certificateholder shall operate to
terminate this Agreement or the trusts created hereunder or entitle any
transferee to an accounting or to the transfer to it of any part of the Trust
Fund.
SECTION 2.10 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the other parties hereto as
of the Closing Date or such other date as is specified, that:
(a) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of Delaware, with full power and
authority to own its assets and conduct its business as presently being
conducted.
(b) The Depositor has the full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Depositor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions
contemplated hereby or the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with or result in a breach of any of
the terms, certificate of formation or operating agreement or any legal
restriction or any agreement or instrument to which the Depositor is now a party
or by which it is bound, or constitute a default or result in the violation of
any law, rule, regulation, order, judgment or decree to which the Depositor or
its property is
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subject, or impair the ability of the Trust to realize on the Mortgage Loans, or
impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of or compliance by the Depositor with this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Depositor which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor, or in
any material impairment of the right or ability of the Depositor to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
contemplated herein, or which would be likely to impair materially the ability
of the Depositor to perform under the terms of this Agreement.
(g) This Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not required to be
registered as an "investment company" under the Investment Company Act of 1940,
as amended.
SECTION 2.11 Tax Treatment.
(a) It is the intention of the parties hereto that, solely for federal,
state and local income and franchise tax purposes the Trust shall be treated as
a division of the owner of the Ownership Certificate that is ignored as an
entity separate from the owner of the Ownership Certificate unless otherwise
required by applicable law. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust will file or cause to be filed (as
described below) annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust, as it relates to the assets
in the Trust and the Ownership Certificate, if applicable, as a division of the
owner of the Ownership Certificate for such federal income tax purposes.
(b) If applicable, the Securities Administrator shall (i) deliver (or cause
to be delivered) to the owner of the Ownership Certificate, as may be required
by the Code and applicable Treasury Regulations, such information within its
possession as may be required to enable each owner of the Ownership Certificate
to prepare its federal and state income tax returns, (ii) prepare or cause to be
prepared, and file or cause to be filed, all United States federal tax returns
relating to the Trust as directed in writing by the holder of the Ownership
Certificate and to make such elections as may from time to time be required or
appropriate under any applicable state or federal statute or rule or regulation
thereunder so as to maintain the proper characterization of the Trust for United
States federal income tax purposes, and (iii) prepare or cause to be prepared,
and file or cause to be filed, deliver or cause to be delivered any United
States federal annual or other necessary United States federal returns, reports
or forms relating to the Notes and the Ownership Certificate (including
information returns on IRS Form 1099). The Depositor shall notify the Securities
Administrator if any state or local law returns are required
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and the Securities Administrator shall prepare and file any such returns, if
applicable. All tax returns in respect of the Trust shall be signed by the owner
of the Ownership Certificate.
(c) The Certificate Paying Agent shall comply with all requirements of the
Code with respect to the withholding from any payments made by it with respect
to the Ownership Certificate of any applicable withholding taxes imposed thereon
and with respect to any applicable reporting requirements in connection
therewith.
(d) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to the Ownership Certificateholder, such tax shall
reduce the amount otherwise distributable in accordance with this Section
2.11(d). The Certificate Paying Agent is hereby authorized and directed to
retain or cause to be retained, from amounts otherwise distributable to the
Ownership Certificateholder, sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to the
Ownership Certificateholder shall be treated as cash distributed to such
Ownership Certificateholder at the time it is withheld by the Certificate Paying
Agent and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-U.S. Ownership Certificateholder), the Certificate
Paying Agent may in its sole discretion withhold such amounts in accordance with
this paragraph (d).
(e) No party to this Agreement is authorized to make an election under
Treasury Regulation Section 301.7701-3 to treat the Trust as a corporation for
United States federal income tax purposes.
SECTION 2.12 Investment Company.
Neither the Depositor nor the Ownership Certificateholder shall take any
action which would cause the Trust to become an "investment company" which would
be required to register under the Investment Company Act of 1940, as amended.
ARTICLE III
THE OWNERSHIP CERTIFICATE AND TRANSFERS OF INTERESTS
SECTION 3.1 The Ownership Certificate.
The Ownership Certificate shall initially be issued as a single certificate
in definitive, fully registered form and shall initially be registered in the
name of the Initial Ownership Certificateholder. The Ownership Certificate shall
not be issued in an authorized denomination of less than a 100% Percentage
Interest in such Ownership Certificate. The Ownership Certificate shall be
executed on behalf of the Trust by manual or facsimile signature of an
Authorized Trust Officer of the Owner Trustee and authenticated in the manner
provided in Section 3.2. The Ownership Certificate bearing the manual signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued and
entitled to the benefit of this Agreement, notwithstanding that
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such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of the Ownership Certificate or did not hold
such offices at the date of authentication and delivery of the Ownership
Certificate. A Person shall become the Ownership Certificateholder and shall be
entitled to the rights and subject to the obligations of the Ownership
Certificateholder hereunder upon registration of the Ownership Certificate in
such Person's name pursuant to Section 3.3.
SECTION 3.2 Execution, Authentication and Delivery of the Ownership
Certificate.
Concurrently with the sale of the Mortgage Loans to the Trust pursuant to
the Transfer and Servicing Agreement, the Owner Trustee shall cause the
Ownership Certificate issued hereunder to be executed and authenticated on
behalf of the Trust and delivered to or upon the written order of the Depositor,
signed by its president or any vice president, without further corporate action
by the Depositor. The Ownership Certificate shall not entitle the Ownership
Certificateholder to any benefit under this Agreement nor shall it be valid for
any purpose unless there shall appear on the Ownership Certificate a certificate
of authentication substantially in the form set forth as part of Exhibit A
hereto, executed by the Owner Trustee, by manual signature. Such authentication
shall constitute conclusive evidence that the Ownership Certificate shall have
been duly authenticated and delivered hereunder. The Ownership Certificate shall
be dated the date of its authentication.
SECTION 3.3 Registration of and Limitations on Transfer and Exchange of the
Ownership Certificate.
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.7, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of the Ownership Certificate and of
transfer and exchange of the Ownership Certificate as herein provided; provided,
however, that the Certificate shall not be issued in any such transfer and
exchange representing less than a 100% Percentage Interest in the Ownership
Certificate, and provided, further, that the Ownership Certificate shall not be
issued in any such transfer and exchange except in accordance with the
provisions and conditions set forth below in this Section 3.3. The Securities
Administrator shall be the initial Certificate Registrar. If the Certificate
Registrar resigns or is removed, the Owner Trustee, with the consent of the
Depositor, shall appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon surrender
for registration of transfer of the Ownership Certificate at the office or
agency maintained pursuant to Section 3.7, the Owner Trustee shall execute,
authenticate and deliver (or cause the Securities Administrator as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee, a new Ownership Certificate evidencing the Percentage Interest of
the Ownership Certificate so surrendered and dated the date of authentication by
the Owner Trustee or the Certificate Registrar.
Every time the Ownership Certificate is presented or surrendered for
registration of transfer or exchange, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Ownership
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Certificateholder or such Ownership Certificateholder's attorney duly authorized
in writing. Each time the Ownership Certificate is surrendered for registration
of transfer or exchange, it shall be cancelled and subsequently disposed of by
the Certificate Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Ownership Certificate, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of the Ownership Certificate or any other expense arising as a result
of any registration of transfer or exchange.
The preceding provisions of this Section notwithstanding, the Owner Trustee
shall not make and the Certificate Registrar shall not register the transfer or
exchange of the Ownership Certificate for a period of 15 days preceding the due
date for any payment with respect to the Ownership Certificate.
No transfer of the Ownership Certificate shall be made unless such transfer
is exempt from or satisfies the registration requirements of the Securities Act
and any applicable state securities laws. Except in the case of an initial
transfer to the Initial Ownership Certificateholder, in the event of any such
transfer, the Certificate Registrar or the Depositor shall prior to such
transfer require the transferee to execute (i) an investment letter (in the form
attached hereto as Exhibit C-1) certifying to the Trust, the Owner Trustee, the
Securities Administrator, the Certificate Registrar and the Depositor that such
transferee is a "qualified institutional buyer" under Rule 144A under the
Securities Act or (ii) an investment letter (in the form attached hereto as
Exhibit C-2) certifying to the Trust, the Owner Trustee, the Securities
Administrator, the Certificate Registrar and the Depositor that such transferee
is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
the Securities Act), and any expense associated with the preparation and
execution of any such investment letter shall not be an expense of the Trust,
the Owner Trustee, the Securities Administrator, the Certificate Registrar or
the Depositor. If the Ownership Certificateholder desires to effect the transfer
of the Ownership Certificate, it shall, and does hereby agree to, indemnify the
Trust, the Owner Trustee, the Securities Administrator, the Certificate
Registrar and the Depositor against any and all liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except in the case of an initial transfer to the Initial Ownership
Certificateholder, no transfer of a Ownership Certificate shall be made unless
the Certificate Registrar shall have received a representation (in the form
attached hereto as Exhibit C-1 or Exhibit C-2) from the proposed transferee of
such Ownership Certificate to the effect that such proposed transferee is not an
employee benefit plan (a "PLAN") subject to the fiduciary responsibility
provisions of ERISA, or Section 4975 of the Code, or a Person acting on behalf
of any such plan or using the assets of any such plan, which representation
shall not be at the expense of the Trust, the Owner Trustee, the Securities
Administrator, the Certificate Registrar or the Depositor. In addition, any
Retained Notes will be subject to the same ERISA restrictions and consequences
discussed above applicable to the Ownership Certificate unless either (a) the
Retained Notes are sold to a party that is a taxable REIT subsidiary or is not
affiliated with the owner of the Ownership Certificate and at the time of such
sale: (i) the owner of the Ownership Certificate is a Permitted Transferee;
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(ii) no modifications have been made to the transaction documents; (iii) the
rating of the Retained Notes as of the date of such sale is not lower than the
rating of such Retained Note as of the closing date; and (iv) no adverse changes
have been made to (or that would adversely affect the application of) the legal
authorities applicable to the closing date tax opinion regarding the status of
the Notes as debt or (b) the holder of the Retained Notes otherwise receives a
"will be debt" tax opinion from a law firm generally recognized to be qualified
to opine concerning the tax aspects of asset securitization.
Prior to and as a condition of the registration of any transfer, sale or
other disposition of the Ownership Certificate, each Prospective Ownership
Certificateholder shall represent and warrant in writing, in substantially the
form set forth in Exhibit D hereto, to the Owner Trustee, the Securities
Administrator and the Certificate Registrar and any of their respective
successors that it is a Permitted Transferee. In addition, any Retained Notes
will be subject to the same restrictions and consequences discussed in the
preceding sentence applicable to the Ownership Certificate unless either (a) the
Retained Notes are sold to a party that is a taxable REIT subsidiary or is not
affiliated with the owner of the Ownership Certificate and at the time of such
sale: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii)
no modifications have been made to the transaction documents; (iii) the rating
of the Retained Notes as of the date of such sale is not lower than the rating
of such Retained Note as of the closing date; and (iv) no adverse changes have
been made to (or that would adversely affect the application of) the legal
authorities applicable to the closing date tax opinion regarding the status of
the Notes as debt or (b) the holder of the Retained Notes otherwise receives a
"will be debt" tax opinion from a law firm generally recognized to be qualified
to opine concerning the tax aspects of asset securitization.
The Owner Trustee shall cause the Ownership Certificate to contain a
legend, substantially similar to the applicable legends provided in Exhibit A
hereto, stating that transfer of the Ownership Certificate is subject to certain
restrictions and referring prospective purchasers of the Ownership Certificate
to this Section 3.3 with respect to such restrictions.
SECTION 3.4 Lost, Stolen, Mutilated or Destroyed Ownership Certificate.
If (a) a mutilated Ownership Certificate is surrendered to the Certificate
Registrar, or (b) the Certificate Registrar receives evidence to its
satisfaction that the Ownership Certificate has been destroyed, lost or stolen,
and there is delivered to the Certificate Registrar proof of ownership
satisfactory to the Certificate Registrar, together with such security or
indemnity as required by the Certificate Registrar and the Owner Trustee to save
each of them harmless, then in the absence of notice to the Certificate
Registrar or the Owner Trustee that the Ownership Certificate has been acquired
by a protected purchaser, the Owner Trustee shall execute on behalf of the
Trust, and the Owner Trustee or the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Ownership Certificate, a new Ownership Certificate of like tenor and
Percentage Interest. In connection with the issuance of any new Ownership
Certificate under this Section 3.4, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any expenses of
the Owner Trustee or the Certificate Registrar (including any fees and expenses
of counsel) and any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Ownership Certificate issued pursuant to
this Section 3.4 shall constitute conclusive
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evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Ownership Certificate shall be found at any time.
SECTION 3.5 Persons Deemed Ownership Certificateholder.
Prior to due presentation of the Ownership Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar, the Securities
Administrator or any Certificate Paying Agent may treat the Ownership
Certificateholder as the owner of such Ownership Certificate for the purpose of
receiving distributions pursuant to Section 4.2 and for all other purposes
whatsoever, and none of the Trust, the Owner Trustee, the Certificate Registrar,
the Securities Administrator or any Certificate Paying Agent shall be bound by
any notice to the contrary.
SECTION 3.6 Access to the Ownership Certificateholder's Name and Address.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the Certificate
Registrar of a written request therefor from the Depositor or the Owner Trustee,
in such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, the name and address of the Ownership Certificateholder as
of the most recent Record Date. The Ownership Certificateholder, by receiving
and holding the Ownership Certificate, shall be deemed to have agreed not to
hold any of the Trust, the Depositor, the Certificate Registrar, the Securities
Administrator and the Owner Trustee accountable or liable for damages by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
SECTION 3.7 Maintenance of Office or Agency.
The Certificate Registrar on behalf of the Trust, shall maintain an office
or offices or agency or agencies where the Ownership Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Owner Trustee in respect of the Ownership Certificate and
the Operative Agreements may be served. The Certificate Registrar shall give the
Owner Trustee prompt notice, in writing, of any such notice or demand. The
Certificate Registrar initially designates the applicable Corporate Trust Office
of the Securities Administrator as its office for such purposes. The Certificate
Registrar shall give prompt written notice to the Depositor, the Owner Trustee,
the Securities Administrator and the Ownership Certificateholder of any change
in the location of the Certificate Register or any such office or agency.
SECTION 3.8 Certificate Paying Agent.
(a) The Owner Trustee may appoint, and hereby appoints, the Securities
Administrator as Certificate Paying Agent under this Agreement. The Certificate
Paying Agent shall make distributions to each Certificateholder from the
Collection Account pursuant to Section 4.1 hereof and Sections [7.4 and 7.5] of
the Transfer and Servicing Agreement and, upon request, shall report the amounts
of such distributions to the Owner Trustee. The Certificate Paying Agent shall
have the revocable power to withdraw funds from the Collection Account for the
purpose of making the distributions referred to above. The Securities
Administrator hereby accepts such appointment and further agrees that it will be
bound by the provisions of this
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Agreement and the Transfer and Servicing Agreement relating to the Certificate
Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates in trust for the benefit of the Person entitled
thereto until such sums shall be paid to such Person or otherwise disposed
of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of
which a Responsible Officer of the Securities Administrator has Actual
Knowledge in the making of any payment required to be made with respect to
the Ownership Certificate;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in Trust by such Certificate Paying
Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay
to the Owner Trustee on behalf of the Trust all sums held by it in trust
for the payment of the Ownership Certificate if at any time it ceases to
meet the standards under this Section 3.8 required to be met by the
Certificate Paying Agent at the time of its appointment; and
(v) not institute bankruptcy proceedings against the Trust in
connection with this Agreement.
(b) In the event that the Securities Administrator shall no longer be the
Certificate Paying Agent hereunder, the Owner Trustee, with the consent of the
Depositor, shall appoint a successor to act as Certificate Paying Agent (which
shall be a bank or trust company). The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed by
the Owner Trustee to execute and deliver to the Owner Trustee an instrument in
which such successor Certificate Paying Agent or additional Certificate Paying
Agent shall agree with the Owner Trustee that as Certificate Paying Agent, such
successor Certificate Paying Agent or additional Certificate Paying Agent will
hold all sums, if any, held by it for payment in trust for the benefit of the
Ownership Certificateholder entitled thereto until such sums shall be paid to
the Ownership Certificateholder. The Certificate Paying Agent shall return all
unclaimed funds to the Owner Trustee, and upon removal of a Certificate Paying
Agent, such Certificate Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 5.3, 5.4, 6.1, 6.5,
6.7, 6.8, 6.10, 6.11, 7.1 and 7.2 shall apply to the Securities Administrator
also in its role as Certificate Paying Agent and Certificate Registrar for so
long as the Securities Administrator shall act as Certificate Paying Agent and,
to the extent applicable, to any other Certificate Paying Agent or Certificate
Registrar appointed hereunder. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 3.9 Initial Beneficiary.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.5 and until the issuance of the Ownership Certificate, the
Depositor shall be the sole beneficiary of the Trust.
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ARTICLE IV
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 4.1 Collection Account.
The Collection Account shall be subject to and established and maintained
in accordance with the applicable provisions of the Transfer and Servicing
Agreement and the Indenture, including, without limitation, the provisions of
Sections [7.4 and 7.5] of the Transfer and Servicing Agreement regarding
distributions from the Collection Account.
SECTION 4.2 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall direct the Certificate
Paying Agent to distribute to the Ownership Certificateholder, from amounts on
deposit in the Collection Account, the distributions as provided in Sections
[7.4 and 7.5] of the Transfer and Servicing Agreement with respect to such
Payment Date. The Owner Trustee hereby directs the Certificate Paying Agent to
distribute on each Payment Date to the Ownership Certificateholder amounts on
deposit in the Collection Account in accordance with Sections [7.4 and 7.5] of
the Transfer and Servicing Agreement and the Certificate Paying Agent hereby
acknowledges such direction.
(b) All payments to be made under this Agreement by the Certificate Paying
Agent shall be made only from the income and proceeds, including Net Proceeds,
of the Trust Fund and only to the extent that the Certificate Paying Agent has
received such income or proceeds. The Bank shall not be liable to the Ownership
Certificateholder, the Indenture Trustee or the Securities Administrator for any
amounts payable pursuant to this Section 4.2 except to the extent that
non-payment is due to the Owner Trustee's acts or omissions amounting to willful
misconduct or gross negligence.
(c) Distributions to the Ownership Certificateholder shall be subordinated
to the creditors of the Trust, including, without limitation, the Noteholders.
SECTION 4.3 Method of Payment.
Distributions required to be made to the Ownership Certificateholder on any
Payment Date as provided in Section 4.2 shall be made to the Person who was the
Ownership Certificateholder on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such Ownership
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Ownership Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date or, if not, by check mailed to such Ownership
Certificateholder at the respective address of such Ownership Certificateholder
appearing in the Certificate Register.
SECTION 4.4 Segregation of Moneys; No Interest.
Moneys received by or on behalf of the Owner Trustee hereunder will be
segregated except to the extent required otherwise by law or the provisions of
the Transfer and Servicing
15
Agreement. The Owner Trustee shall not be liable for payment of any interest in
respect of such moneys.
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS
SECTION 5.1 General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Notes, the Ownership Certificate, the other Operative Agreements to which the
Trust is to be a party, each certificate or other document attached as an
exhibit to or contemplated by the Operative Agreements to which the Trust is to
be a party and any amendment or other agreement or instrument described herein,
all as approved by the Depositor, as evidenced conclusively by the Owner
Trustee's execution thereof, and, on behalf of the Trust, to direct the
Securities Administrator to authenticate the Notes. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Operative Agreements.
SECTION 5.2 General Duties.
(a) It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this Agreement
and the other Operative Agreements to which it is a party and to administer the
Trust in the interest of the Ownership Certificateholder, subject to the
Operative Agreements and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Operative
Agreements to the extent the Securities Administrator has agreed in the Transfer
and Servicing Agreement or this Agreement, respectively, to perform any act or
to discharge any duty of the Owner Trustee or the Trust hereunder or under any
Operative Agreement, and the Owner Trustee shall not be held liable for the
default or failure of the Securities Administrator to carry out its obligations
under this Agreement or the Transfer and Servicing Agreement or any other
Operative Agreement, respectively.
(b) It shall be the duty of the Depositor under the Transfer and Servicing
Agreement to obtain and preserve the Trust's qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the Trust
Fund and each other instrument and agreement included in the Trust Fund. It
shall be the duty of the Owner Trustee to cooperate with the Depositor with
respect to such matters.
SECTION 5.3 Action Upon Instruction.
(a) Subject to Article V and in accordance with the terms of the Operative
Agreements, the Ownership Certificateholder may by written instruction direct
the Owner Trustee in the management of the Trust, but only to the extent
consistent with the limited
16
purpose of the Trust. Such direction may be exercised at any time by written
instruction of the Ownership Certificateholder pursuant to this Article V.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Operative Agreement if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Operative Agreement or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any other Operative Agreement, or in the event that the Owner Trustee is unsure
as to the application of any provision of this Agreement or any other Operative
Agreement or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Agreement permits any determination by the Owner Trustee or is silent
or is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Ownership Certificateholder requesting instruction as to
the course of action to be adopted, and to the extent the Owner Trustee acts in
good faith in accordance with any written instruction of the Ownership
Certificateholder, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or any other Operative
Agreement, as it shall deem to be in the best interests of the Ownership
Certificateholder, and the Owner Trustee shall have no liability to any Person
for such action or inaction.
SECTION 5.4 No Duties Except as Specified under Specified Documents or in
Instructions.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Trust Fund, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided (a) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, and (b) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 5.3; and no
implied duties or obligations shall be read into this Agreement or any Operative
Agreement against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to the Trust or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Operative Agreement or to prepare or file any tax return for
the Trust. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Trust Fund that result from actions by, or claims against the
Bank that are not related to the ownership or the administration of the Trust
Fund.
17
SECTION 5.5 Restrictions.
(a) The Owner Trustee shall not take any action that is inconsistent with
the purposes of the Trust set forth in Section 2.3. The Ownership
Certificateholder shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 5.5.
(b) The Owner Trustee shall not, except as provided herein, convey or
transfer any of the Trust's properties or assets, including those included in
the Trust Fund, to any person unless such conveyance or transfer shall not
violate the provisions of the Indenture.
SECTION 5.6 Negative Covenants.
With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Ownership Certificateholder in writing of the
proposed action and (i) the Ownership Certificateholder shall have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
the Ownership Certificateholder has consented to such action, and (ii) the Owner
Trustee shall have been provided written confirmation from each Rating Agency
that such action will not result in a downgrade, withdrawal or negative
qualification of any rating then-assigned to any Class of Notes:
(a) The initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of cash distributions due and
owing in respect of the Trust Fund) and the compromise of any action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of cash distributions due and
owing in respect of the Trust Fund);
(b) The election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Delaware Trust
Statute);
(c) The amendment of the Indenture by a supplemental indenture or of this
Agreement or any other Operative Agreement in circumstances where the consent of
any Noteholder is required;
(d) The amendment or other change of the Indenture by a supplemental
indenture or of this Agreement or any other Operative Agreement in circumstances
where the consent of any Noteholder is not required and such amendment
materially adversely affects the interests of the Ownership Certificateholder;
(e) The amendment of the Transfer and Servicing Agreement in circumstances
where the consent of any Noteholder or the Ownership Certificateholder is
required;
(f) The amendment, change or modification of the Transfer and Servicing
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially and adversely affect
the interests of the Ownership Certificateholder;
18
(g) The appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar or Certificate Paying Agent or the consent to
the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Agreement, as applicable;
(h) The consent to the calling or waiver of any default of any Operative
Agreement;
(i) The consent to the assignment by the Indenture Trustee of its
obligations under any Operative Agreement;
(j) Except as provided in Article VIII hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(k) The merger, conversion or consolidation of the Trust with or into any
other entity, or conveyance or transfer of all or substantially all of the
Trust's assets to any other entity;
(l) The incurrence, assumption or guaranty by the Trust of any indebtedness
other than as set forth in this Agreement;
(m) The taking of any action which conflicts with any Operative Agreement
or would make it impossible to carry on the ordinary business of the Trust or
change the Trust's purpose and powers set forth in this Agreement;
(n) The confession of a judgment against the Trust;
(o) The possession of the Trust assets, or assignment of the Trust's right
to property, for other than a Trust purpose; or
(p) The lending of funds by the Trust to any entity.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall pay its indebtedness, operating expenses and liabilities
from its own funds, and the Trust shall neither incur any indebtedness nor pay
the indebtedness, operating expenses and liabilities of any other entity. Except
as expressly set forth herein, the Trust shall not engage in any dissolution,
liquidation, consolidation, merger or sale of assets. The Trust shall maintain
appropriate minutes or other records of all appropriate actions and shall
maintain its office separate from the offices of the Depositor or any of its
Affiliates. The Trust shall not engage in any business activity in which it is
not currently engaged other than as contemplated by the Operative Agreements and
related documentation. The Trust shall not form, or cause to be formed, any
subsidiaries and shall not own or acquire any asset other than as contemplated
by the Operative Agreements and related documentation. Other than as
contemplated by the Operative Agreements and related documentation, the Trust
shall not follow the directions or instructions of the Depositor. The Trust
shall conduct its own business in its own name. The Trust shall observe all
formalities required under the Delaware Trust Statute. The Trust shall not hold
out its credit as being available to satisfy the obligations of any other person
or entity. The Trust shall not acquire the
19
obligations or securities of its Affiliates or the Seller. Other than as
contemplated by the Operative Agreements and related documentation, the Trust
shall not pledge its assets for the benefit of any other person or entity. The
Trust shall correct any known misunderstanding regarding its separate identity.
The Trust shall not identify itself as a division of any other person or entity.
The pricing and other material terms of all transactions and agreements to
which the Trust is a party shall be intrinsically fair to all parties thereto.
This Agreement is and shall be the only agreement among the parties thereto with
respect to the creation, operation and termination of the Trust.
The Owner Trustee shall not have the power, except upon the written
direction of the Ownership Certificateholder, and to the extent otherwise
consistent with the Operative Agreements, to (i) remove or replace the Indenture
Trustee or (ii) institute a bankruptcy against the Trust. So long as the
Indenture remains in effect, to the extent permitted by applicable law, the
Ownership Certificateholder shall have no power to commence, and shall not
commence, any bankruptcy with respect to the Trust or direct the Owner Trustee
to commence any bankruptcy with respect to the Trust.
(q) The Owner Trustee shall not have the power, except upon the written
direction of the Ownership Certificateholder, to (i) remove the Securities
Administrator under the Transfer and Servicing Agreement pursuant to Section
[8.7] thereof, (ii) appoint a successor Securities Administrator pursuant to
Section [8.7] of the Transfer and Servicing Agreement or (iii) except as
expressly provided in the Indenture, to sell assets comprising the Trust Fund
after the termination of the Indenture. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed and
authorized by the Ownership Certificateholder.
SECTION 5.7 Action by the Ownership Certificateholder with Respect to
Bankruptcy.
The Owner Trustee shall not have the power to commence or consent to a
bankruptcy relating to the Trust without the prior approval of the Ownership
Certificateholder and the delivery to the Owner Trustee by the Ownership
Certificateholder of a certificate certifying that the Ownership
Certificateholder reasonably believes that the Trust is insolvent. This
paragraph shall survive for one year and one day following termination of this
Agreement. So long as the Indenture remains in effect, the Ownership
Certificateholder shall not have the power to institute, and shall not
institute, any bankruptcy with respect to the Trust or direct the Owner Trustee
to take such action.
SECTION 5.8 Restrictions on the Owner Certificateholder's Power.
The Ownership Certificateholder shall not direct the Owner Trustee to take
or to refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee under this
Agreement or any of the Operative Agreements or would be contrary to Section 2.3
nor shall the Owner Trustee be obligated to follow any such direction, if given.
20
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts hereby created and agrees to perform
the same but only upon the terms of this Agreement and the terms of the Transfer
and Servicing Agreement. The Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the Trust Fund upon the terms of
this Agreement. The Bank shall not be answerable or accountable hereunder or
under any other Operative Agreements under any circumstances, except (i) for its
own willful misconduct, gross negligence or bad faith, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.4, (iii) for
liabilities arising from the failure by the Bank to perform obligations
expressly undertaken by it in the last sentence of Section 5.4 or (iv) for
taxes, fees or other charges based on or measured by any fees, commissions or
compensation received by the Bank in connection with any of the transactions
contemplated by this Agreement, any other Operative Agreements or the Notes. In
particular, but not by way of limitation:
(a) The Bank shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Owner Trustee;
(b) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Owner Trustee in accordance with the instructions of
the Ownership Certificateholder;
(c) No provision of this Agreement shall require the Bank to expend or risk
funds or otherwise incur any financial liability in the performance of any of
the Owner Trustee's rights or powers hereunder or under any other Operative
Agreements if the Bank shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) Under no circumstance shall the Bank be liable for indebtedness
evidenced by or arising under any of the Operative Agreements, including the
principal of and interest on the Notes;
(e) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Depositor, the Securities Administrator, the Sellers,
the Originator, the Subservicer, the Servicing Rights Owner, the Master
Servicer, the Indenture Trustee, any Trust Officer or the Certificate Paying
Agent under this Agreement or any other Operative Agreement or otherwise and the
Bank shall not be obligated to perform or monitor the performance of any
obligations or duties under this Agreement or the other Operative Agreements
which are to be performed by the Certificate Paying Agent under this Agreement,
the Securities Administrator under the Transfer and Servicing, the Indenture
Trustee under the Indenture or by any other Person under any of the Operative
Agreements; and
(f) The Bank shall not be responsible for or in respect of the recitals
herein, the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for
21
the form, character, genuineness, sufficiency, value or validity of any of the
Trust Fund or for or in respect of the validity or sufficiency of the Operative
Agreements, other than the certificate of authentication on the Ownership
Certificate, and the Bank shall in no event assume or incur any liability, duty
or obligation to any Noteholder, the Depositor or to the Ownership
Certificateholder, other than as expressly provided for herein.
SECTION 6.2 Furnishing of Documents.
The Owner Trustee will furnish to the Securities Administrator (for
distribution to the Owner Certificateholder), promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee hereunder or under the Operative Agreements unless the
Securities Administrator shall have already received the same.
SECTION 6.3 Books and Records.
The Owner Trustee shall keep or cause to be kept proper books of record and
account of all the transactions under this Agreement, including a record of the
name and address of the Ownership Certificateholder. The Owner Trustee shall be
deemed to have complied with this Section 6.3 by the appointment of the
Securities Administrator and the Certificate Paying Agent to perform the duties
hereunder.
SECTION 6.4 Representations and Warranties.
(a) The Bank hereby represents and warrants to the other parties hereto as
of the Closing Date or such other date as is specified, that:
(i) The Bank has been duly organized and is validly existing and is in
good standing under the laws of _________________, with full power and
authority to own its assets and conduct its business as presently being
conducted.
(ii) The Bank has the full corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder, and
the execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Bank and the consummation of the transactions contemplated hereby have been
duly and validly authorized.
(iii) This Agreement constitutes a legal, valid and binding obligation
of the Bank, enforceable against the Bank in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(iv) None of the execution and delivery of this Agreement, the
transactions contemplated hereby or the fulfillment of or compliance with
the terms and conditions of this Agreement will conflict with or result in
a breach of any of the terms, certificate of formation or operating
agreement or any legal restriction or any agreement or instrument
22
to which the Bank is now a party or by which it is bound, or constitute a
default or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Bank or its property is subject, or impair
the ability of the Trust to realize on the Mortgage Loans, or impair the
value of the Mortgage Loans.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Bank of or compliance by the Bank with this Agreement,
or if required, such consent, approval, authorization or order has been
obtained prior to the related Closing Date.
(vi) There is no action, suit, proceeding or investigation pending or
to its knowledge threatened against the Bank which, either individually or
in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Bank, or in any material impairment of the right or ability of the Bank to
carry on its business substantially as now conducted, or which would draw
into question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be contemplated herein, or which would be likely to
impair materially the ability of the Bank to perform under the terms of
this Agreement.
(b) The Securities Administrator hereby represents and warrants to the
other parties hereto as of the Closing Date or such other date as is specified,
that:
(i) The Securities Administrator has been duly organized and is
validly existing as a ________________ in good standing under the laws of
______________, with full power and authority to own its assets and conduct
its business as presently being conducted.
(ii) The Securities Administrator has the full power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder, and the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to this
Agreement) by the Securities Administrator and the consummation of the
transactions contemplated hereby have been duly and validly authorized.
(iii) This Agreement constitutes a legal, valid and binding obligation
of the Securities Administrator, enforceable against the Securities
Administrator in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a proceeding
at law or in equity).
(iv) None of the execution and delivery of this Agreement, the
transactions contemplated hereby or the fulfillment of or compliance with
the terms and conditions of this Agreement will conflict with or result in
a breach of any of the terms, certificate of formation or operating
agreement or any legal restriction or any agreement or instrument to which
the Securities Administrator is now a party or by which it is bound, or
constitute
23
a default or result in the violation of any law, rule, regulation, order,
judgment or decree to which Securities Administrator or its property is
subject, or impair the ability of the Trust to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Securities Administrator of or compliance by the
Securities Administrator with this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related
Closing Date.
(vi) There is no action, suit, proceeding or investigation pending or
to its knowledge threatened against the Securities Administrator which,
either individually or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Securities Administrator, or in any material impairment of
the right or ability of the Securities Administrator to carry on its
business substantially as now conducted, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken
or to be contemplated herein, or which would be likely to impair materially
the ability of the Securities Administrator to perform under the terms of
this Agreement.
SECTION 6.5 Reliance; Advice of Counsel.
(a) Except as provided in Section 6.1, the Owner Trustee shall incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any corporate
or partnership entity as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president (or the general
partner, in the case of a partnership) and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the relevant party, as
to such fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In its exercise or administration of the trusts and powers hereunder,
including its obligations under Section 5.2(b), and in the performance of its
duties and obligations under this Agreement or the other Operative Agreements,
the Owner Trustee may employ agents and attorneys and enter into agreements
(including the Transfer and Servicing Agreement) with any of them, and the Owner
Trustee shall not be answerable for the default or misconduct of any such agents
or attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care. If, and to the extent, the Depositor shall have
failed to reimburse the Owner Trustee for all reasonable expenses and
indemnities incurred pursuant to this Section 6.5(b), as provided in Section 7.1
and Section 7.2, the Owner Trustee may seek reimbursement therefor from the
Trust Fund.
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(c) In the administration of the trusts and performance of its duties
hereunder, the Owner Trustee may consult with counsel, accountants and other
skilled Persons to be selected and employed by it, and the Owner Trustee shall
not be liable for anything done, suffered or omitted in good faith by it in
accordance with the reasonable advice or opinion of any such counsel,
accountants or other skilled Persons. If, and to the extent, the Depositor shall
have failed to reimburse the Owner Trustee for all reasonable expenses and
indemnities incurred pursuant to this Section 6.5(c), as provided in Section 7.1
and Section 7.2, the Owner Trustee may seek reimbursement therefor from the
Trust Fund.
SECTION 6.6 Not Acting in Individual Capacity.
Except as provided in this Article VI, in accepting the trusts hereby
created the Owner Trustee acts solely as trustee hereunder and not in its
individual capacity, and all persons having any claim against the Owner Trustee
by reason of the transactions contemplated by the Operative Agreements shall
look only to the Trust Fund for payment or satisfaction thereof.
SECTION 6.7 Owner Trustee Not Liable for Ownership Certificate or Trust
Fund.
The recitals contained herein and in the Ownership Certificate (other than
the signatures and countersignatures of the Owner Trustee on the Ownership
Certificate) shall be taken as the statements of the Depositor, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement, of
any Operative Agreement or of the Ownership Certificate (other than the
signatures and countersignatures of the Owner Trustee on the Ownership
Certificate) or the Notes, or of the Trust Fund or related documents. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any assets in the Trust
Fund, or the perfection and priority of any security interest created by any
assets in the Trust Fund or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to the Ownership Certificateholder under
this Agreement or the Noteholders under the Indenture, including, without
limitation: (a) the existence, condition and ownership of any assets in the
Trust Fund; (b) the existence and enforceability of any insurance thereon; (c)
the existence and contents of any assets in the Trust Fund on any computer or
other record thereof; (d) the validity of the assignment of any assets in the
Trust Fund to the Trust or of any intervening assignment; (e) the completeness
of any assets in the Trust Fund; (f) the performance or enforcement of any
assets of the Trust Fund; and (g) the compliance by the Depositor with any
warranty or representation made under any Operative Agreements or in any related
document or the accuracy of any such warranty or representation or any action of
the Securities Administrator or the Indenture Trustee taken in the name of the
Owner Trustee.
SECTION 6.8 Owner Trustee May Own Ownership Certificate and Notes.
The Owner Trustee in its individual capacity may become the Ownership
Certificateholder or the owner or pledgee of Notes and may deal with the
Depositor, the Securities Administrator and the Indenture Trustee in banking
transactions with the same rights as it would have if it were not Owner Trustee.
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SECTION 6.9 Licenses.
The Depositor shall cause the Trust to use its best efforts to obtain and
maintain the effectiveness of any licenses required in connection with this
Agreement and the other Operative Agreements and the transactions contemplated
hereby and thereby until such time as the Trust shall terminate in accordance
with the terms hereof. It shall be the duty of the Owner Trustee to cooperate
with the Depositor with respect to such matters.
SECTION 6.10 Doing Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither the Bank
nor the Owner Trustee shall be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (a)
require the consent or approval or authorization or order of or the giving of
notice to, or the registration with or the taking of any other action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (b) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by the Bank or the Owner Trustee; or (c) subject the
Bank or the Owner Trustee to personal jurisdiction in any jurisdiction other
than the State of Delaware for causes of action arising from acts unrelated to
the consummation of the transactions by the Bank or the Owner Trustee, as the
case may be, contemplated hereby. The Owner Trustee shall be entitled to obtain
advice of counsel (which advice shall be an expense of the Trust) to determine
whether any action required to be taken pursuant to this Agreement results in
the consequences described in clauses (a), (b) and (c) of the preceding
sentence. In the event that such counsel advises the Owner Trustee that such
action will result in such consequences, the Owner Trustee will appoint a
co-trustee pursuant to Section 9.5 hereof to proceed with such action.
SECTION 6.11 Xxxxxxxx-Xxxxx Act Certification.
Notwithstanding anything to the contrary herein or in any Operative
Agreement, the Owner Trustee shall not be required to execute, deliver or
certify on behalf of the Trust or any other Person any filings, certificates,
affidavits or other instruments in connection with certifications required under
the Xxxxxxxx-Xxxxx Act of 2002.
ARTICLE VII
INDEMNIFICATION AND COMPENSATION
SECTION 7.1 Trust Expenses.
The Depositor shall pay the organizational expenses of the Trust as they
may arise or shall, upon the request of the Owner Trustee, promptly reimburse
the Owner Trustee for any such expenses paid by the Owner Trustee in connection
therewith. The Depositor shall also pay (or reimburse the Bank for) all
reasonable expenses of the Owner Trustee hereunder, including, without
limitation, the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and duties under the
Operative Agreements.
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SECTION 7.2 Indemnification.
The Trust shall assume liability for, and indemnify the Bank and its
successors, assigns, Trust Officers, directors, agents and servants, against and
from, any and all liabilities, obligations, losses, damages, taxes, claims,
actions, suits, costs, expenses and disbursements (including reasonable legal
fees and expenses) of any kind and nature whatsoever (collectively, "EXPENSES")
which may be imposed on, incurred by or asserted at any time against the Bank
(whether or not indemnified against by other parties) in any way relating to or
arising out of this Agreement, any Operative Agreement, the Trust Fund, the
administration of the Trust Fund or the action or inaction of the Owner Trustee
hereunder, except only that the Trust shall not be required to indemnify the
Bank for Expenses arising or resulting from any of the matters described in the
third sentence of Section 6.1. The indemnities contained in this Section 7.2
shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. In the event of any claim, action or proceeding
for which indemnity will be sought pursuant to this Section, the Owner Trustee's
choice of legal counsel shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld.
SECTION 7.3 Compensation.
The Bank shall receive as compensation for its services hereunder the Owner
Trustee Fee and such fees as set forth in a separate Fee Agreement between the
Depositor and the Bank.
ARTICLE VIII
TERMINATION OF AGREEMENT
SECTION 8.1 Termination of Agreement.
(a) This Agreement (other than Article VII) shall terminate and the trusts
created hereby shall dissolve and terminate and the Trust Fund shall, subject to
the Indenture and Sections 4.1 and 7.4 and Section 3808 of the Delaware Trust
Statute, be distributed to the Ownership Certificateholder, and this Agreement
shall be of no further force or effect, upon the earlier of (i) the full payment
of principal and interest due on all Classes of the Notes and (ii) the sale or
other final disposition by the Indenture Trustee or the Owner Trustee, as the
case may be, of all the Trust Fund and the final distribution by the Indenture
Trustee or the Owner Trustee, as the case may be, of all moneys or other
property or proceeds of the Trust Fund in accordance with the terms of the
Indenture, the Transfer and Servicing Agreement and Section 4.1 of this
Agreement. The bankruptcy, liquidation or dissolution of the Ownership
Certificateholder shall not operate to terminate this Agreement, nor entitle the
Ownership Certificateholder's legal representatives to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.1(a), none of the Depositor or the
Ownership Certificateholder shall be entitled to revoke or terminate the Trust
established hereunder.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which the Ownership Certificateholder shall surrender its Ownership
Certificate to the Certificate
27
Registrar for payment of the final distribution and cancellation, shall be given
by the Certificate Registrar by letter to the Ownership Certificateholder and
the Rating Agencies mailed within five Business Days of receipt of notice of the
final payment on the Notes pursuant to the Transfer and Servicing Agreement,
stating (i) the Payment Date upon or with respect to which final payment of the
Ownership Certificate shall be made upon presentation and surrender of the
Ownership Certificate at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Payment Date is not applicable, payments being
made only upon presentation and surrender of the Ownership Certificate at the
office of the Certificate Paying Agent therein specified. The Certificate
Registrar shall give such notice to the Owner Trustee and the Certificate
Registrar at the time such notice is given to the Ownership Certificateholder.
Upon presentation and surrender of the Ownership Certificate, the Certificate
Paying Agent shall cause to be distributed to the Ownership Certificateholder
amounts distributable on such Payment Date pursuant to Section [7.7] of the
Transfer and Servicing Agreement.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall upon the written request of the Depositor cause the Certificate of Trust
to be cancelled by filing a certificate of cancellation with the Secretary of
State in accordance with the provisions of Section 3810 of the Delaware Trust
Statute.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1 Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation satisfying the
provisions of Section 3807(a) of the Delaware Trust Statute; authorized to
exercise corporate powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or state
authorities; and having (or having a parent which has) a short-term debt rating
of at least "A-1" or the equivalent by, or which is otherwise acceptable to, the
Rating Agencies. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 9.2.
SECTION 9.2 Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the trust
hereby created by giving 30 days' prior written notice thereof to the Depositor
and the Indenture Trustee. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30
28
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.1 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public Trust
Officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and payment of
all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Securities Administrator shall provide notice of
such resignation or removal of the Owner Trustee to the Rating Agencies.
SECTION 9.3 Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 9.2 shall
execute, acknowledge and deliver to the Depositor and the Securities
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Securities Administrator, the Depositor and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Securities Administrator shall mail notice of the successor of
such Owner Trustee to all Certificateholders, the Indenture Trustee, the
Noteholders and the Rating Agencies. If the Securities Administrator fails to
mail such notice within ten days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of the Securities Administrator.
29
SECTION 9.4 Merger or Consolidation of Owner Trustee.
Any Person into which the Owner Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided,
however, that such Person shall be eligible pursuant to Section 9.1, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 9.5 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund may at the time be located, and for the purpose of
performing certain duties and obligations of the Owner Trustee with respect to
the Trust and the Ownership Certificate under the Transfer and Servicing
Agreement, the Owner Trustee shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.3.
The Owner Trustee hereby appoints the Securities Administrator for the
purpose of establishing and maintaining the Collection Account and making the
distributions therefrom to the Persons entitled thereto pursuant to Sections
[7.4 and 7.5] of the Transfer and Servicing Agreement.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provision and conditions:
(a) all rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner 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 Owner 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 Owner 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 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 Owner
Trustee;
(b) no trustee under this Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement; and
30
(c) the Depositor and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to the separate trustees and co-trustees, as if given
to each of them. Every instrument appointing any separate trustee or co-trustee,
other than this Agreement, shall refer to this Agreement and to the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
appointment, shall be vested with the funds specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee. Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Securities Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its Agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its funds,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Supplements and Amendments.
This Agreement may be amended by the Depositor, the Securities
Administrator and the Owner Trustee, with the consent of the Ownership
Certificateholder and with prior written notice to the Rating Agencies, but
without the consent of any of the Noteholders or the Indenture Trustee, to cure
any ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Ownership Certificateholder; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder or the Ownership
Certificateholder or adversely affect the tax status of the Trust. An amendment
shall not be deemed to adversely affect in any material respect the interests of
any Noteholder or the Ownership Certificateholder; and no opinion referred to in
the preceding proviso shall be required to be delivered if the Person requesting
the amendment obtains a letter from each Rating Agencies stating that the
amendment would not result in the downgrading, withdrawal or qualification of
the respective ratings then assigned to each applicable Class of Notes and the
Ownership Certificate. Notwithstanding the preceding sentence, an opinion shall
be required with respect to tax matters as set forth in this paragraph.
This Agreement may also be amended from time to time by the Depositor, the
Securities Administrator and the Owner Trustee, with the prior written consent
of the Rating Agencies and with the prior written consent of the Indenture
Trustee, Noteholders evidencing more than 66-
31
2/3% of the Outstanding Balance of the Notes and the consent of the Ownership
Certificateholder, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Ownership Certificateholder; provided,
however, that no such amendment shall, as evidenced by an Opinion of Counsel,
adversely affect the tax status of the Trust; and provided, further, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments in respect of the
Trust Fund or payments that shall be required to be made for the benefit of the
Noteholders or the Ownership Certificateholder or (b) reduce the aforesaid
percentage of the Outstanding Balance of the Notes required to consent to or to
waive the requirement for the Ownership Certificateholder to consent to any such
amendment, in either case of clause (a) or (b) without the consent of all of the
Noteholders and the Ownership Certificateholder.
Notwithstanding the foregoing, no provision of Sections 2.3 or 5.5 hereof
may be amended in any manner unless (i) 100% of the Outstanding Balance of the
Noteholders have consented in writing thereto, (ii) the Rating Agencies have
consent in writing thereto or (iii) the Notes have been paid in full and the
Indenture has been discharged.
Promptly after the execution of any such amendment or consent, the
Securities Administrator shall furnish written notification of the substance of
such amendment or consent to the Ownership Certificateholder, the Indenture
Trustee and the Rating Agencies.
It shall not be necessary for the consent of the Ownership
Certificateholder, the Noteholders or the Indenture Trustee pursuant to this
Section 10.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of the
Ownership Certificateholder provided for in this Agreement or in any other
Operative Agreement) and of evidencing the authorization of the execution
thereof by the Ownership Certificateholder shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee, the Securities Administrator, the
Certificate Registrar and the Certificate Paying Agent shall be entitled to
receive and rely upon an Opinion of Counsel, at the expense of the Trust,
stating that the execution of such amendment is authorized or permitted by this
Agreement. None of the Owner Trustee, the Certificate Registrar, the Certificate
Paying Agent nor the Securities Administrator shall be obligated to enter into
any such amendment which affects the Owner Trustee's, the Certificate
Registrar's, the Certificate Paying Agent's or the Securities Administrator's
own rights, duties or immunities under this Agreement or otherwise.
32
SECTION 10.2 No Legal Title to Trust Fund in Ownership Certificateholder.
The Ownership Certificateholder shall not have legal title to any part of
the Trust Fund and shall only be entitled to receive distributions with respect
to its respective undivided beneficial interest therein pursuant to Section 4.1
once all amounts then owing with respect to the Notes have been paid in
accordance with the Indenture. No transfer, by operation of law of any right,
title and interest of the Ownership Certificateholder in and to its undivided
beneficial interest in the Trust Fund or hereunder shall operate to terminate
this Agreement or the trusts hereunder or entitle any successor transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Fund.
SECTION 10.3 Pledge of Trust Fund by Owner Trustee is Binding.
The pledge of the Trust Fund to the Indenture Trustee by the Trust made
under the Indenture and pursuant to the terms of this Agreement shall bind the
Ownership Certificateholder and shall be effective to transfer or convey the
rights of the Trust and the Ownership Certificateholder in and to such Trust
Fund to the extent set forth in the Indenture. No purchaser or other grantee
shall be required to inquire as to the authorization, necessity, expediency or
regularity of such pledge or as to the application of any proceeds with respect
thereto by the Owner Trustee.
SECTION 10.4 Limitations on Rights of Others.
Nothing in this Agreement, whether express or implied, shall be construed
to give to any Person other than the Owner Trustee and the Ownership
Certificateholder any legal or equitable right in the Trust Fund or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 10.5 Notices.
Unless otherwise expressly specified or permitted by the terms hereof, all
notices shall be in writing and delivered by hand, by courier or mailed by
certified mail, postage prepaid to the address set forth in the Transfer and
Servicing Agreement.
Whenever any notice in writing is required to be given by the Owner Trustee
or the Securities Administrator, such notice shall be deemed given and such
requirement satisfied if such notice is mailed by certified mail, postage
prepaid, addressed as provided above.
33
SECTION 10.6 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.7 Separate Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
SECTION 10.8 Successors and Assigns.
All representations, warranties, covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the Owner Trustee and its
successors and assigns and the Depositor and the Ownership Certificateholder and
its respective successors, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Ownership
Certificateholder shall bind the successors of the Ownership Certificateholder.
SECTION 10.9 Headings.
The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 10.10 Governing Law.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO THE
CONFLICT OF LAWS PROVISIONS THEREOF, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.11 No Petition.
(a) The Bank and the Securities Administrator, by entering into this
Agreement, the Ownership Certificateholder, by accepting the Ownership
Certificate, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Ownership Certificate, the Notes, this Agreement or any of the
other Operative Agreements.
(b) The Depositor shall not be liable for the default or misconduct of the
Securities Administrator, the Owner Trustee, the Indenture Trustee or the
Certificate Paying Agent under
34
any of the Operative Agreements or otherwise and the Depositor shall have no
obligation or liability to perform the obligations of the Trust under this
Agreement or the Operative Agreements that are required to be performed by the
Securities Administrator under the Transfer and Servicing Agreement or the
Indenture Trustee under the Indenture.
SECTION 10.12 No Recourse.
The Ownership Certificateholder by accepting the Ownership Certificate
acknowledges that such Ownership Certificateholder's Ownership Certificate
represents a beneficial interest in the Trust only and does not represent an
interest in or an obligation of the Depositor, the Securities Administrator, the
Owner Trustee, any co-trustee, the Bank or any Affiliate thereof (other than the
Trust) and no recourse may be had against such parties or their assets, except
as may be expressly set forth or contemplated in this Agreement, the Ownership
Certificate or the other Operative Agreements.
ARTICLE XI
TRUST OFFICERS
SECTION 11.1 Appointment of Trust Officers.
The Trust may have one or more Trust Officers who are hereby empowered to
take and are responsible for performing all ministerial duties on behalf of the
Trust pursuant to this Agreement and the other Operative Agreements, including,
without limitation, the execution of the Trust Officers' Certificate (as defined
in the Indenture), an Issuer Order (as defined in the Indenture), the annual
compliance report required under Section [3.9] of the Indenture, and any annual
reports, documents and other reports which the Trust is required to file with
the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended. Each of the chairman of the board,
the chief executive trust officer, the president, each senior vice president and
each vice president of the Depositor is hereby appointed as an Trust Officer of
the Trust. The Depositor shall promptly deliver to the Owner Trustee and the
Indenture Trustee a list of its Trust Officers who shall become the Trust
Officers of the Trust pursuant to this Section 11.1.
SECTION 11.2 Trust Officers to Provide Information to the Owner Trustee.
It shall be the duty of each Trust Officer to keep the Owner Trustee
reasonably and promptly informed as to material events relating to the Trust,
including, without limitation, all claims pending or threatened against the
Trust, the purchase and sale of any material portion of the Trust Fund and the
execution by such Trust Officer on behalf of the Trust of any material
agreements or instruments.
35
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Owner Trust Agreement to be duly executed by their respective Trust
Officers hereunto duly authorized, as of the day and year first above written.
XXXXX ASSET SECURITIZATION, INC.,
as Depositor
By:
------------------------------------
Name:
Title:
[ - ],
as Owner Trustee
By:
------------------------------------
Name:
Title:
[ - ],
as Securities Administrator
By:
------------------------------------
Name:
Title:
[OWNER TRUST AGREEMENT]
EXHIBIT A
FORM OF OWNERSHIP CERTIFICATE
THE RESIDUAL INTEREST IN THE TRUST REPRESENTED BY THIS OWNERSHIP CERTIFICATE HAS
NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS OWNERSHIP CERTIFICATE MAY BE
DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER
HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE ACT PURSUANT TO RULE 144A OR (II) AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
ACT IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS RESIDUAL INTEREST UNDER
THE ACT OR ANY STATE SECURITIES LAWS.
EXCEPT AS PROVIDED IN SECTION 3.3 OF THE OWNER TRUST AGREEMENT, NO TRANSFER OF
THIS OWNERSHIP CERTIFICATE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE MADE
UNLESS THE OWNER TRUSTEE HAS RECEIVED A OWNERSHIP CERTIFICATE FROM THE
TRANSFEREE TO THE EFFECT THAT SUCH TRANSFEREE (I) IS NOT (A) AN "EMPLOYEE
BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, (B) A "PLAN" WITHIN THE MEANING OF
SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (C) AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY (EACH, A "BENEFIT PLAN INVESTOR"), AND (II) IS NOT
DIRECTLY OR INDIRECTLY PURCHASING SUCH OWNERSHIP CERTIFICATE ON BEHALF OF, AS
INVESTMENT MANAGER OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS
OF A BENEFIT PLAN INVESTOR.
THIS OWNERSHIP CERTIFICATE SHALL ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE.
A-1
LUMINENT MORTGAGE TRUST 200_-_
OWNERSHIP CERTIFICATE
No.
THIS CERTIFIES THAT _______________________________ (the "OWNER") is the
registered owner of a [ - ]%, residual interest in Luminent Mortgage Trust
200_-_ (the "TRUST") existing under the laws of the State of Delaware and
created pursuant to the Owner Trust Agreement, dated as of _______ __, 200_ (the
"OWNER TRUST AGREEMENT") among Xxxxx Asset Securitization, Inc., as depositor,
__________________ as securities administrator and _________________, not in its
individual capacity but solely in its fiduciary capacity as owner trustee under
the Trust Agreement (the "OWNER TRUSTEE"). Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Owner Trust
Agreement. The Owner Trustee, on behalf of the Issuer and not in its individual
capacity, has executed this Ownership Certificate by one of its duly authorized
signatories as set forth below. This Ownership Certificate is referred to in the
Owner Trust Agreement and is issued under and is subject to the terms,
provisions and conditions of the Owner Trust Agreement to which the holder of
this Ownership Certificate by virtue of the acceptance hereof agrees and by
which the holder hereof is bound. Reference is hereby made to the Owner Trust
Agreement and the Transfer and Servicing Agreement for the rights of the holder
of this Ownership Certificate, as well as for the terms and conditions of the
Trust created by the Owner Trust Agreement.
The holder, by its acceptance hereof, agrees not to transfer this Ownership
Certificate except in accordance with terms and provisions of the Owner Trust
Agreement.
THIS OWNERSHIP CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, 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.
[SIGNATURE PAGE FOLLOWS]
A-2
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Ownership Certificate to be duly
executed.
LUMINENT MORTGAGE TRUST 200_-_
By: [ - ], not in its individual
capacity but solely as Owner Trustee
under the Owner Trust Agreement
By:
------------------------------------
Name:
Title:
DATED: ________ __, 200_
CERTIFICATE OF AUTHENTICATION
This Ownership Certificate is referred to in the within-mentioned Owner
Trust Agreement.
By: [ - ], not in its individual
capacity but solely as Owner
Trustee under the Owner Trust
Agreement, as Authenticating Agent
By:
------------------------------------
Name:
Title:
A-3
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Ownership Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________________________________________________________ Attorney to
transfer said Ownership Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
---------------
--------------------------------------*/
Signature Guaranteed:
--------------------------------------*/
----------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Ownership Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-4
EXHIBIT B
FORM OF CERTIFICATE OF TRUST OF
LUMINENT MORTGAGE TRUST 200_-_
THIS Certificate of Trust of Luminent Mortgage Trust 200_-_ (the "TRUST"),
is being duly executed and filed by the undersigned, as trustee, to form a
statutory trust under the Delaware Statutory Trust Act (12 DEL. CODE, Sections
3801 et seq.) (the "ACT").
1. NAME. The name of the statutory trust formed hereby is "Luminent
Mortgage Trust 200_-_."
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware are _______________, _________________,
Attention: _______________.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on ________
__, 200_.
IN WITNESS WHEREOF, the undersigned, being the owner trustee of the Trust,
has executed this Certificate of Trust in accordance with Section 3811(a) of the
Act.
[ - ],
as Owner Trustee
By:
------------------------------------
Name:
Title:
B-1
EXHIBIT C-1
FORM OF RULE 144A INVESTMENT LETTER
[ - ]
[ - ],
as Certificate Registrar
[ - ]
Luminent Mortgage Trust 200_-_
c/o [ - ]
[ - ]
[ - ]
as Owner Trustee
[ - ]
[ - ],
as Securities Administrator
[ - ]
Xxxxx Asset Securitization, Inc.,
as Depositor
[street address]
[city, state, zip]
Attention: [___________]
Re: Luminent Mortgage Trust 200_-_, Ownership Certificate
Ladies and Gentlemen:
In connection with our acquisition of the Luminent Mortgage Trust 200_-_,
Ownership Certificate (the "CERTIFICATE"), we certify that:
(a) we understand that the Ownership Certificate has not been registered
under the Securities Act of 1933, as amended (the "ACT"), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws;
(b) we have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of investment in the
Ownership Certificate;
(c) we have had the opportunity to ask questions of and receive answers
from Xxxxx Asset Securitization, Inc. (the "DEPOSITOR") concerning the purchase
of the Ownership
C-1-1
Certificate and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Ownership Certificate;
(d) we have not, nor has anyone acting on our behalf, offered, transferred,
pledged, sold or otherwise disposed of the Ownership Certificate or any interest
in the Ownership Certificate, or solicited any offer to buy, transfer, pledge or
otherwise dispose of the Ownership Certificate or any interest in the Ownership
Certificate from any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Ownership Certificate under the Act
or that would render the disposition of the Ownership Certificate a violation of
Section 5 of the Act or any state securities laws or require registration
pursuant thereto, and we will not act, or authorize any person to act, in such
manner with respect to the Ownership Certificate; and
(e) we are a "qualified institutional buyer" as that term is defined in
Rule 144A under the Act ("RULE 144A"). We are aware that the sale to us is being
made in reliance on Rule 144A.
We are acquiring the Ownership Certificate for our own account or for
resale pursuant to Rule 144A and understand that such Ownership Certificate may
be resold, pledged or transferred only (1) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A or (2)
pursuant to another exemption from registration under the Act.
In addition, we hereby certify that we either (i) are not a pension,
profit-sharing or other employee benefit plan, including a "Xxxxx" plan or
individual retirement account that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or to Section 4975 of the Internal
Revenue Code of 1986, as amended (or to any other substantially similar law) or
any entity deemed to hold the plan assets of the foregoing or (ii) are a
pension, profit-sharing or other employee benefit plan, including a "Xxxxx" plan
or individual retirement account, or an entity deemed to hold the plan assets of
the foregoing and our acquisition and holding of the Ownership Certificate,
throughout the period that we will hold the Ownership Certificate, will satisfy
the requirements for exemptive relief under Prohibited Transaction Class
Exemption ("PTCE") 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or a
similar exemption, or if we are subject to any substantially similar law, will
not result in a violation of any such substantially similar law.
We hereby acknowledge that under the terms of the Owner Trust Agreement
among Xxxxx Asset Securitization, Inc., as Depositor, ________________, as Owner
Trustee, and __________________, as Securities Administrator, dated as of
________ __, 200_, no transfer of the Ownership Certificate shall be permitted
to be made to any person unless the Certificate Registrar has received a
certificate from such transferee in the form hereof.
We hereby indemnify the Depositor, the Securities Administrator, the
Certificate Registrar and the Owner Trustee against any liability that may
result to either of them if our transfer or other disposition of the Ownership
Certificate (or any interest therein) is not exempt
C-1-2
from the registration requirements of the Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
Very truly yours,
[Name of Transferee]
By:
-----------------------------------
Name:
Title:
C-1-3
EXHIBIT C-2
FORM OF NON-RULE 144A INVESTMENT LETTER
[ - ]
[ - ],
as Certificate Registrar
[ - ]
Luminent Mortgage Trust 200_-_
c/o [ - ]
[ - ]
[ - ]
as Owner Trustee
[ - ]
[ - ],
as Securities Administrator
[ - ]
Xxxxx Asset Securitization, Inc.,
as Depositor
[street address]
[city, state, zip]
Attention: [____________]
Re: Luminent Mortgage Trust 200_-_, Ownership Certificate
Ladies and Gentlemen:
In connection with our acquisition of the Luminent Mortgage Trust 200_-_,
Ownership Certificate (the "OWNERSHIP CERTIFICATE") we certify that:
(a) we understand that the Ownership Certificate has not been registered
under the Securities Act of 1933, as amended (the "ACT"), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws;
(b) we are an "accredited investor," as defined in Rule 501(a)(1), (2), (3)
or (7) under the Act, and have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
investment in the Ownership Certificate;
C-2-1
(c) we have had the opportunity to ask questions of and receive answers
from the Depositor concerning the purchase of the Ownership Certificate and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Ownership Certificate;
(d) we are acquiring the Ownership Certificate for investment for our own
account and not with a view to any distribution of such Ownership Certificate
(but without prejudice to our right at all times to sell or otherwise dispose of
the Ownership Certificate in accordance with clause (f) below);
(e) we have not offered or sold any Ownership Certificate to, or solicited
offers to buy any Ownership Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, or taken any
other action that would result in a violation of Section 5 of the Act or any
state securities laws; and
(f) we will not sell, transfer or otherwise dispose of any Ownership
Certificate unless (1) such sale, transfer or other disposition is made pursuant
to an effective registration statement under the Act and in compliance with any
relevant state securities laws or is exempt from such registration requirements
and, if requested, we will at our expense provide an opinion of counsel
satisfactory to the addressees of this certificate that such sale, transfer or
other disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Ownership Certificate has executed and delivered
to you a certificate to substantially the same effect as this certificate and
(3) the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Owner Trust Agreement dated as of ________ __, 200_,
among Xxxxx Asset Securitization, Inc., as Depositor, __________________, as
Owner Trustee and _________________, as Securities Administrator.
In addition, we hereby certify that we either (i) are not a pension,
profit-sharing or other employee benefit plan, including a "Xxxxx" plan or
individual retirement account that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or to Section 4975 of the Internal
Revenue Code of 1986, as amended (or to any other substantially similar law) or
any entity deemed to hold the plan assets of the foregoing or (ii) are a
pension, profit-sharing or other employee benefit plan, including a "Xxxxx" plan
or individual retirement account, or an entity deemed to hold the plan assets of
the foregoing and our acquisition and holding of the Ownership Certificate,
throughout the period that we will hold the Ownership Certificate, will satisfy
the requirements for exemptive relief under Prohibited Transaction Class
Exemption ("PTCE") 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or a
similar exemption, or if we are subject to any substantially similar law, will
not result in a violation of any such substantially similar law.
We hereby acknowledge that under the terms of the Owner Trust Agreement
among Xxxxx Asset Securitization, Inc., as Depositor, __________________, as
Owner Trustee, and _________________, as Securities Administrator, dated as of
________ __, 200_, no transfer of the Ownership Certificate shall be permitted
to be made to any person unless the Certificate Registrar has received a
certificate from such transferee in the form hereof.
C-2-2
We hereby indemnify the Owner Trustee, the Securities Administrator, the
Depositor and the Certificate Registrar against any liability that may result to
either of them if our transfer or other disposition of the Ownership Certificate
(or any interest therein) is not exempt from the registration requirements of
the Act and any applicable state securities laws or is not made in accordance
with such federal and state laws.
Very truly yours,
[Name of Transferee]
By:
----------------------------------------
Name:
Title:
X-0-0
XXXXXXX X
XXXX XX XXXXXXXXXXXXXX XXX XXXXXXXX REGARDING TRANSFEREE'S
STATUS FOR TAX MATTERS
This representation and warranty is delivered pursuant to Section 3.3 of
the Owner Trust Agreement dated as of ________ __, 200_ (the "AGREEMENT"), among
Xxxxx Asset Securitization, Inc., as depositor (the "DEPOSITOR"),
_________________, as owner trustee (the "OWNER TRUSTEE") and
__________________, as securities administrator (the "SECURITIES
ADMINISTRATOR"), in connection with the transfer by the transferor to the
undersigned as beneficial owner (the "BENEFICIAL OWNER") of a 100% Percentage
Interest in the Ownership Certificate. Capitalized terms used but not defined in
this document have the meanings ascribed to them in the Agreement.
The Beneficial Owner hereby certifies that it has received a copy of the
Agreement and that it understands the restrictions on transferability of the
Ownership Certificate set forth in Section 3.3 of the Agreement. In connection
with the transfer of the Ownership Certificate to the Beneficial Owner, the
Beneficial Owner represents and warrants that:
(A) It meets the qualifications of (1), (2) or (3) below:
(1) REIT Status -- The Beneficial Owner either (A) qualifies for taxation
as a real estate investment trust (a "REIT") within the meaning of
Sections 856 and 857 of the Internal Revenue Code of 1986, as amended
(the "CODE"), (B) is a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code (a "QUALIFIED REIT SUBSIDIARY") or (C) or
an entity that is disregarded for federal income tax purposes and that
is wholly owned by a REIT or a Qualified REIT Subsidiary.
(2) Financing Status -- The Beneficial Owner is a lender or repurchase
agreement counterparty in a repurchase agreement or secured lending
transaction that qualifies as a borrowing for federal income tax
purposes; or
(3) Tax Opinion -- The Beneficial Owner is delivering herewith an opinion
of nationally recognized tax counsel to the effect that, as of the
transfer date, the Trust will not be treated as one or more taxable
mortgage pools for federal income tax purposes; and
(B) The Beneficial Owner hereby acknowledges that under the terms of the
Agreement, no transfer of the Ownership Certificate shall be permitted to be
made to any person unless the Certificate Registrar has received a certificate
from such transferee to the effect that such transferee meets the qualifications
of (A)(1), (A)(2) or (A)(3) above.
[transferee name]
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
D-1
