Exhibit 99.4
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ORIGEN RESIDENTIAL SECURITIES, INC.
as Depositor
[__________________________],
as Owner Trustee
and
[__________________________],
as Certificate Registrar and Certificate Paying Agent
__________________________________________________
TRUST AGREEMENT
Dated as of [__________, 20__]
__________________________________________________
Trust Certificates,
Series [20__-_]
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Table of Contents
Section Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.......................................................................... 1
Section 1.02. Other Definitional Provisions........................................................ 1
ARTICLE II
ORGANIZATION
Section 2.01. Name................................................................................. 2
Section 2.02. Office............................................................................... 2
Section 2.03. Purposes and Powers.................................................................. 2
Section 2.04. Appointment of Owner Trustee......................................................... 3
Section 2.05. Initial Capital Contribution of Owner Trust Estate................................... 3
Section 2.06. Declaration of Trust................................................................. 3
Section 2.07. Liability of the Holders of the Certificates......................................... 4
Section 2.08. Title to Trust Property.............................................................. 4
Section 2.09. Situs of Trust....................................................................... 4
Section 2.10. Representations and Warranties of the Depositor...................................... 4
Section 2.11. Payment of Trust Fees................................................................ 5
Section 2.12. Investment Company................................................................... 5
Section 2.13. Transfer of Trust Estate to Owner Trustee............................................ 5
ARTICLE III
CONVEYANCE OF THE ASSETS; CERTIFICATES
Section 3.01. Conveyance of the Assets............................................................. 7
Section 3.02. Initial Ownership.................................................................... 7
Section 3.03. The Certificates..................................................................... 7
Section 3.04. Authentication of Certificates....................................................... 8
Section 3.05. Registration of and Limitations on Transfer and Exchange of Certificates............. 8
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates.................................... 10
Section 3.07. Persons Deemed Certificateholders.................................................... 11
Section 3.08. Access to List of Certificateholders' Names and Addresses............................ 11
Section 3.09. Maintenance of Office or Agency...................................................... 11
Section 3.10. Certificate Paying Agent............................................................. 11
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ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01. General Authority.................................................................... 13
Section 4.02. General Duties....................................................................... 13
Section 4.03. Action upon Instruction.............................................................. 13
Section 4.04. No Duties Except as Specified under Specified Documents or in Instructions........... 14
Section 4.05. Restrictions......................................................................... 14
Section 4.06. Prior Notice to Certificateholders with Respect to Certain Matters................... 14
Section 4.07. Action by Certificateholders with Respect to Certain Matters......................... 15
Section 4.08. Action by Certificateholders with Respect to Bankruptcy.............................. 15
Section 4.09. Restrictions on Certificateholders' Power............................................ 15
Section 4.10. Majority Control..................................................................... 15
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01. Distributions........................................................................ 16
Section 5.02. Method of Payment.................................................................... 16
Section 5.03. Tax Returns.......................................................................... 16
Section 5.04. Statements to Certificateholders..................................................... 17
ARTICLE VI
CONCERNING THE BANK
Section 6.01. Acceptance of Trusts and Duties...................................................... 17
Section 6.02. Furnishing of Documents.............................................................. 18
Section 6.03. Representations and Warranties....................................................... 18
Section 6.04. Reliance; Advice of Counsel.......................................................... 19
Section 6.05. Not Acting in Individual Capacity.................................................... 20
Section 6.06. Bank Not Liable for Certificates or Related Documents................................ 20
Section 6.07. Bank May Own Certificates and Notes.................................................. 20
Section 6.08. Payments from Owner Trust Estate..................................................... 20
Section 6.09. Doing Business in Other Jurisdictions................................................ 21
Section 6.10. Liability of Certificate Registrar and Certificate Paying Agent...................... 21
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee Fees and Expenses...................................................... 21
Section 7.02. Indemnification...................................................................... 21
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ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement....................................................... 22
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee........................................... 24
Section 9.02. Replacement of Owner Trustee......................................................... 24
Section 9.03. Successor Owner Trustee.............................................................. 24
Section 9.04. Merger or Consolidation of Owner Trustee............................................. 25
Section 9.05. Appointment of Co-Trustee or Separate Trustee........................................ 25
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments........................................................................... 26
Section 10.02. No Legal Title to Owner Trust Estate................................................. 28
Section 10.03. Limitations on Rights of Others...................................................... 28
Section 10.04. Notices.............................................................................. 28
Section 10.05. Severability......................................................................... 29
Section 10.06. Separate Counterparts................................................................ 29
Section 10.07. Successors and Assigns............................................................... 29
Section 10.08. No Petition.......................................................................... 29
Section 10.09. No Recourse.......................................................................... 29
Section 10.10. Headings............................................................................. 30
Section 10.11. GOVERNING LAW........................................................................ 30
Section 10.12. Integration.......................................................................... 30
EXHIBITS
Exhibit A - Form of Certificate.......................................................................... A-1
Exhibit B - Certificate of Trust of Origen Manufactured Housing Contract Trust 2004-A.................... B-1
Exhibit C - Form of Rule 144A Investment Representation.................................................. C-1
Exhibit D - Form of Certificate of Non-Foreign Status.................................................... D-1
Exhibit E - Form of Investment Letter.................................................................... E-1
Exhibit F - Form of Transferor Certificate............................................................... F-1
Exhibit G - Form of ERISA Letter......................................................................... G-1
Exhibit H - Form of Transferee Certificate............................................................... H-1
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This Trust Agreement, dated as of _________________ _____, 20____
(as amended from time to time, this "Trust Agreement"), among Origen Residential
Securities, Inc., a Delaware corporation, as depositor (the "Depositor"),
[________________________], a Delaware banking corporation, as owner trustee
(the "Owner Trustee" and in its individual capacity, the "Bank"), and
___________________________ [same entity as Indenture Trustee], as certificate
registrar (in such capacity, the "Certificate Registrar") and certificate paying
agent (in such capacity, the "Certificate Paying Agent").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture, dated [____________,
20__], between Origen Manufactured Housing Contract Trust [20__-_], as Issuer,
and [________________], as Indenture Trustee, which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Trust Agreement or in any such certificate or other
document, and accounting terms partly defined in this Trust 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 Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitins contained in this Trust 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 Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement; Article,
Section and Exhibit references contained in this Trust Agreement are references
to Articles, Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Trust Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to 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 2.01. Name. The trust created hereby (the "Trust") shall be
known as "Origen Manufactured Housing Contract Trust [20__-_]", in which name
the Owner Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of
the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to
engage in the following activities and the Trust shall have the power and
authority:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell the Notes
and the Certificates;
(ii) to pay the organizational, start-up and transactional
expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Assets
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to Section 5.01 herein, any portion of
the Assets released from the Lien of, and remitted to the Trust
pursuant to the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(v) if directed by holders of Certificates representing more
than 50% of the beneficial interests in the Trust, sell the Trust
Estate subsequent to the discharge of the Indenture, all for the
benefit of the holders of the Certificates;
(vi) 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;
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(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection
with conservation of the Owner Trust Estate and the making of
distributions to the Certificateholder and the Noteholders; and
(viii) as set forth in the Indenture, at any time on or after
the Closing Date, the Issuer shall have the right to convey to the
Trust Estate, solely for the benefit of the Holder of the
Certificates, a derivative contract or comparable instrument. Any
such instrument shall constitute a fully prepaid agreement. All
collections, proceeds and other amounts in respect of such an
instrument shall be distributed to the Certificates on the Payment
Date following receipt thereof by the Indenture Trustee.
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
Trust Agreement or the Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate.
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 date hereof, of the
foregoing contribution, which shall constitute the initial corpus of the Trust
and shall be deposited in the Certificate Distribution Account. The Owner
Trustee also acknowledges on behalf of the Trust the receipt in trust pursuant
to Section 3.01 of the Assets and the rights with respect to the representations
and warranties made by the Seller and the Originator under the Asset Purchase
Agreement which shall constitute the Owner Trust Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it shall hold the Owner Trust Estate 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 Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
"statutory trust" under the Statutory Trust Statute and that this Trust
Agreement constitute the governing instrument of such statutory trust. It is the
intention of the parties hereto that, for federal and state income and state and
local franchise tax purposes, the Trust (A) shall not be treated as (i) an
association subject separately to taxation as a corporation or (ii) a "publicly
traded partnership" as defined in Treasury Regulation Section 1.7704-1, (B)
shall, as of the Closing Date and for so long as any Notes are outstanding be
treated for federal income tax purposes as a qualified REIT subsidiary within
the meaning of Section 856(i) of the Code, and thereafter be disregarded as a
separate entity (and if at any other time the Trust Certificates are held by
more than one person for federal income tax purposes, shall be treated as a
partnership), and (C) that each Class of Notes shall be debt, and the provisions
of this Agreement shall be interpreted to further this intention. It is the
intention of the parties hereto that, for federal, state and local tax purposes,
the Depositor shall at no time be treated as an owner of the Assets or as the
issuer of or obligor on indebtedness secured by the Assets and evidenced by the
Notes, and the parties hereto mutually covenant to take all pertinent tax
reporting positions consistent with that intent. Except as otherwise provided in
this Trust Agreement, the rights of the Certificateholder will be those of
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equity owners of the Trust. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.07. Liability of the Holders of the Certificates. The
Holders of the Certificates shall be jointly and severally liable directly to
and shall indemnify any injured party for all losses, claims, damages,
liabilities and expenses of the Trust and the Owner Trustee (including Expenses,
to the extent not paid out of the Owner Trust Estate); provided, however, that
the Holders of the Certificates shall not be liable for payments required to be
made on the Notes or the Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes. The Holders of the
Certificates shall be liable for and shall promptly pay any entity level taxes
imposed on the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the second preceding
sentence for which the Holders of the Certificates shall not be liable) shall be
deemed third party beneficiaries of this paragraph. The obligations of the
Holders of the Certificates under this paragraph shall be evidenced by the
Certificates.
Section 2.08. Title to Trust Property. Except with respect to the
Assets, which will be assigned of record to the Indenture Trustee pursuant to
the Indenture, legal title to the Owner Trust Estate shall be vested at all
times in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware or taking actions
outside the State of Delaware in order to comply with Section 2.03. Payments
will be received by the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The only office of the Trust
will be at the Corporate Trust Office in Delaware.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as
a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership
or lease of its property or the conduct of its business shall
require such qualifications and in which the failure to so qualify
would have a material adverse effect on the business, properties,
assets or condition (financial or other) of the Depositor.
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(iii) The Depositor has the power and authority to execute and
deliver this Trust Agreement and to carry out its terms; the
Depositor has full power and authority to convey and assign the
property to be conveyed and assigned to and deposited with the Trust
as part of the Owner Trust Estate and the Depositor has duly
authorized such conveyance and assignment and deposit to the Trust
by all necessary corporate action; and the execution, delivery and
performance of this Trust Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by
this Trust Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of
the Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate
any law or, to the best of the Depositor's knowledge, any order,
rule or regulation applicable to the Depositor of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor
or its properties.
(v) The Trust is not required to register as an investment
company under the Investment Company Act and is not under the
control of a Person required to so register.
Section 2.11. Payment of Trust Fees. Pursuant to the Section 8.02 of
the Indenture, on each Payment Date commencing on the 13th Payment Date, the
Indenture Trustee shall remit to the Owner Trustee the Owner Trustee Fee for
such Payment Date.
Section 2.12. Investment Company. Neither the Depositor nor any
holder of a Certificate 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.
Section 2.13. Transfer of Trust Estate to Owner Trustee.
(a) Effective as of the date hereof, the Depositor does hereby
assign, transfer, and otherwise convey to, and deposit with, the Trust, until
this Agreement terminates pursuant to Section 8.01, the entire Trust Estate,
such conveyance to be made in exchange for the Notes and the Certificates. Such
assignment includes, without limitation, all amounts payable to and all rights
of the holder of the Collateral pursuant to this Agreement.
(b) The conveyance of the Collateral and all other assets
constituting the Trust Estate by the Depositor as contemplated hereby is
absolute and is intended by the parties, other than for federal, state and local
income and franchise tax purposes, to constitute a sale of the Collateral and
all other assets constituting the Trust Estate by the Depositor to the Trust. It
is, further, not intended that such conveyance be deemed a pledge of security
for a loan. If such conveyance is deemed to be a pledge of security for a loan,
however, the Depositor intends that the rights and obligations of the parties to
such loan shall be established pursuant to the terms of this Agreement. The
Depositor also intends and agrees that, in such event:
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(i) this Agreement shall constitute a security agreement
under applicable law and shall be deemed to create valid and
continuing security interest (as defined in the applicable UCC) in
the Trust Estate (including, without limitation, the Collateral, the
Certificate Distribution Account and any proceeds thereof) in favor
of the Trust, which security interest is prior to all other Liens,
and is enforceable as such as against creditors of and purchasers
from the Depositor;
(ii) other than the security interest granted to the Trust
pursuant to this Agreement, Depositor has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of
the Trust Estate, has not authorized the filing of and is not aware
of any financing statements against the Trust Estate that includes a
description of collateral covering the Trust Estate other than any
financing statements relating to the security interest granted to
the Trust hereunder or that has been terminated. The Depositor is
not aware of any judgment or tax lien filings against Depositor;
(iii) the Depositor owns and has good and marketable title to
the Trust Estate free and clear of any Lien, claim or encumbrance of
any Person;
(iv) the Certificate Distribution Account constitutes a
"deposit account" within the meaning of the applicable UCC. The
Depositor has directed the bank where the Certificate Distribution
Account is held to take all steps necessary to cause the Certificate
Paying Agent to become the account holder of the Certificate
Distribution Account. The Certificate Distribution Account is not in
the name of any Person other than as provided in Section 3.10 of
this Agreement. The Depositor has not consented to the maintenance
of the Certificate Distribution Account in compliance with
instructions of any Person other than the Certificate Paying Agent;
(v) the Trust Estate (excluding the Certificate Distribution
Account and any proceeds thereof) constitutes "deposit accounts,"
"general intangibles" and "instruments" within the meaning of the
applicable UCC). The Depositor has received all required consents
and approvals to the pledge of the portions of the Trust Estate
(excluding the Certificate Distribution Account and any proceeds
thereof) constituting payment intangibles;
(vi) the Depositor has caused or will have caused, within ten
days, the filing of all appropriate financing statements in the
appropriate filing offices under applicable law in order to perfect
the security interest in the Trust Estate granted to the Trust
hereunder. All financing statements filed or to be filed against the
Depositor in favor of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) in connection
herewith describing the Trust Estate contain a statement to the
following effect, "A purchase of, or security interest in, any
collateral described in this financing statement will violate the
rights of the secured party;" and
(vii) the Depositor shall, to the extent consistent with this
Agreement, take such additional reasonable actions as may be
necessary to ensure that, if this Agreement were deemed to create a
security interest in the Collateral and the other assets of the
Trust Estate, such security interest would be a perfected security
interest of first priority under
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applicable law and will be maintained as such throughout the life of
this Agreement. Notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Owner Trustee on behalf of the Trust (or any
subsequent assignee, including, without limitation, the Indenture
Trustee) for the purpose of perfecting such security interest under
applicable law.
(c) The Owner Trustee declares that it holds and will hold the
Trust Estate and such documents and instruments and that it holds and will hold
all other assets and documents to be included in the Trust Estate, in trust for
the exclusive use and benefit of all present and future Certificateholders.
(d) Except as expressly provided in Section 8.01, neither the
Depositor nor any Certificateholder shall be able to revoke the Trust
established hereunder. Except as provided in Sections 4.01, 4.02, 4.03, 5.01 and
8.01 hereof, the Owner Trustee or Certificate Paying Agent (as applicable) shall
not assign, sell, dispose of or transfer any interest in, nor may the Depositor
or any Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
ARTICLE III
CONVEYANCE OF THE ASSETS; CERTIFICATES
Section 3.01. Conveyance of the Assets. The Depositor, concurrently
with the execution and delivery hereof, does hereby contribute, transfer, convey
and assign to the Trust, on behalf of the Holders of the Notes and the
Certificates, without recourse, all its right, title and interest in and to the
Assets, including all interest and principal received on or with respect to the
Assets after the Cut-off Date (other than payments of principal and interest due
on the Assets on or before the Cut-off Date). In addition, the Depositor hereby
assigns to the Trust all of its right, title, and interest in, to, and under the
Asset Purchase Agreement.
Section 3.02. Initial Ownership. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.05 and until the
conveyance of the Assets pursuant to Section 3.01 and the issuance of the
Certificates, and thereafter except as otherwise permitted hereunder, the
Depositor shall be the sole beneficial owner.
Section 3.03. The Certificates. The Certificates shall be issued in
the form of one or more Certificates, each representing not less than a 10%
Certificate Percentage Interest. At initial issuance, the Certificates shall be
issued to and registered in the name of [_____________], as designee of the
Depositor and the Seller. The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee and authenticated in the manner provided in Section 3.04. Certificates
bearing the manual or facsimile 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 Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
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Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate duly
registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to and upon satisfaction of
the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. The Owner Trustee
shall cause all Certificates issued hereunder to be executed and authenticated
on behalf of the Trust, authenticated and delivered to or upon the written order
of the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Trust Agreement or be valid for any purpose unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Certificate Registrar by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and
Exchange of Certificates. The Certificate Registrar shall keep or cause to be
kept, a Certificate Register in which, subject to such reasonable regulations as
it may prescribe, the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. [________________] shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Majority Certificateholder,
with the consent of the Owner Trustee, shall appoint a successor Certificate
Registrar.
Subject to satisfaction of the conditions set forth below with
respect to the Certificate, upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.09, the
Owner Trustee or the Certificate Registrar shall execute, authenticate and
deliver in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Owner Trustee or the Certificate Registrar. At the
option of a Holder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.09.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Certificate Registrar duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer or exchange 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 Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum
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sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
No Person shall become a Certificateholder until it shall establish
its non-foreign status by submitting to the Certificate Paying Agent an IRS Form
W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No person shall become a Certificateholder, so long as any Notes are
Outstanding, until it shall establish its status as a real estate investment
trust ("REIT") or as a "qualified REIT subsidiary" ("QRS") within the meaning of
Section 856(a) or Section 856(i) of the Code, respectively, by submitting to the
Certificate Registrar and the Owner Trustee, the Transferee Certificate set
forth in Exhibit H hereto.
No transfer, sale, pledge or other disposition of a Certificate
shall be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act and any applicable
state securities laws or is made in accordance with said Act and laws. In the
event of any such transfer, the Certificate Registrar or the Depositor shall
prior to such transfer require the transferee to execute (A) either (i) (a) an
investment letter in substantially the form attached hereto as Exhibit C (or in
such form and substance reasonably satisfactory to the Certificate Registrar and
the Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (1) is
a "qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar, the Owner Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit F to the Agreement, and transferor executes a representation letter,
substantially in the form of Exhibit E hereto, each acceptable to and in form
and substance satisfactory to the Certificate Registrar, the Owner Trustee and
the Depositor certifying the facts surrounding such transfer, which
representation letters shall not be an expense of the Trust, the Owner Trustee,
the Certificate Registrar, the Servicer or the Depositor and (B) the Certificate
of Non-Foreign Status (in substantially the form attached hereto as Exhibit D)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar, the Owner Trustee and the Depositor, which certificate
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar or the Depositor. The Holder of a Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer are provided with an
9
Opinion of Counsel which establishes to the satisfaction of the Depositor, the
Owner Trustee, the Certificate Registrar and the Servicer that the purchase of
Certificates is permissible under applicable law, will not constitute or result
in any prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Owner Trustee, the Certificate Registrar or the Servicer. In lieu of such
Opinion of Counsel, a Person acquiring such Certificates may provide a
certification in the form of Exhibit G to this Agreement, which the Depositor,
the Owner Trustee, the Certificate Registrar and the Servicer may rely upon
without further inquiry or investigation. Neither an Opinion of Counsel nor a
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall be deemed to have represented
that such affiliate is not a Plan or a Person investing Plan Assets of any Plan)
and the Owner Trustee and the Certificate Registrar shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee or the Certificate Registrar, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the Depositor.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
and the Certificate Registrar an Opinion of Counsel, rendered by a law firm
generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, to the effect that such transfer (including any
disposition permitted following any default under any pledge or repurchase
transaction) will not cause the Trust to be (i) treated as an association
taxable as a corporation for federal income tax and relevant state income and
franchise tax purposes or (ii) taxable as a "publicly traded partnership" as
defined in Treasury Regulation section 1.7704-1 for federal income tax purposes
and relevant state franchise or income tax purposes. Notwithstanding the
foregoing, the provisions of this paragraph shall not apply to the initial
transfer of the Certificates to the Depositor.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide 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 Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 3.06, 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 fees and expenses of counsel)
and any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section 3.06 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
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Section 3.07. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or any Certificate Paying Agent shall
be bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Depositor, the Certificate Paying Agent or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor, the Certificate Paying Agent or the Owner Trustee, a list, in
such form as the Depositor, the Certificate Paying Agent or the Owner Trustee,
as the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
Trust, the Depositor, the Certificate Paying Agent, the Certificate Registrar or
the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates may be served. The Owner Trustee initially designates the office of
the agent of the Indenture Trustee at [c/o DTC Transfer Services, 00 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000] for purposes of such
surrender and the Corporate Trust Office of the Indenture Trustee as its office
for service of notices or demands. The Owner Trustee shall give prompt written
notice to the Depositor, the Certificate Paying Agent, the Certificate Registrar
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 3.10. Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Certificate Distribution Account on behalf of the
Trust in accordance with the provisions of the Certificates and Section 5.01
hereof from payments remitted to the Certificate Paying Agent by the Indenture
Trustee pursuant to Section 3.05 of the Indenture. The Trust hereby appoints
[_______________] as Certificate Paying Agent and [_______________] hereby
accepts such appointment and further agrees that it will be bound by the
provisions of this Trust 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
Persons entitled thereto until such sums shall be paid to such
Persons 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 Certificate Paying Agent
has actual knowledge in the making of any payment required to be
made with respect to the Certificates;
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(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) not resign from its position as Certificate Paying Agent
so long as it is Indenture Trustee except that it shall 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 Certificates if at any time it ceases to meet the
standards under this Section 3.10 required to be met by the
Certificate Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Certificates of
any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuer
in connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate
Paying Agent if it determines in its sole discretion that the Certificate Paying
Agent shall have failed to perform its obligations under this Trust Agreement in
any material respect. In the event that [_______________] shall no longer be the
Certificate Paying Agent under this Trust Agreement and Paying Agent under the
Indenture, the Majority Certificateholder, with the consent of the Owner
Trustee, shall appoint a successor to act as Certificate Paying Agent (which
shall be a bank or trust company) and which shall also be the successor Paying
Agent under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent hereunder to
execute and deliver to the Owner Trustee an instrument to the effect set forth
in Section 3.10(a) as it relates to the Certificate Paying Agent. The
Certificate Paying Agent shall return all unclaimed funds to the Trust and upon
removal of a Certificate Paying Agent such Certificate Paying Agent shall also
return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the Certificate
Paying Agent to the extent applicable. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with
itself a trust account (the "Certificate Distribution Account") in which the
Certificate Paying Agent shall deposit, on the same day as it is received from
the Indenture Trustee, each remittance received by the Certificate Paying Agent
with respect to payments made pursuant to the Indenture. The Certificate Paying
Agent shall make all distributions to Certificates, from moneys on deposit in
the Certificate Distribution Account, in accordance with Section 5.01 hereof.
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ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents 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. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, except as otherwise provided in this Trust Agreement, to
take all actions required of the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. 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 Trust Agreement and the Basic Documents to which
the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
Section 4.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the
Basic Documents, the Certificateholders may by written instruction direct the
Owner Trustee in the management of the Trust. Such direction may be exercised at
any time by written instruction of the Certificateholders pursuant to Article
IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document 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 Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is required to decide between
alternative courses of action permitted or required by the terms of this Trust
Agreement or under any Basic Document, or in the event that the Owner Trustee is
unsure as to the application of any provision of this Trust Agreement or any
Basic Document 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 Trust 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
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders 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 Certificateholders, 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 10 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
13
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 4.04. 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 Owner Trust Estate, 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 (i) in accordance with the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Trust Agreement, (ii) in
accordance with the Basic Documents and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 4.03; and no
implied duties or obligations shall be read into this Trust Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at anytime or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this Trust
Agreement or any Basic Document. Notwithstanding any provision herein or in any
other Basic Document, the Owner Trustee shall not be obligated to prepare, file
or execute any documents or certifications required to be filed by the Trust
pursuant to the Xxxxxxxx-Xxxxx Act of 2002, as amended. 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 Owner Trust
Estate that result from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Owner Trust
Estate.
Section 4.05. Restrictions.
(a) The Owner Trustee or the Depositor (or an Affiliate thereof)
shall not take any action (x) that is inconsistent with the purposes of the
Trust set forth in Section 2.03, (y) that, to the actual knowledge of the Owner
Trustee based on an Opinion of Counsel rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization, would result in the Trust becoming taxable as a corporation for
federal income tax purposes or (z) would result in the amendment or modification
of this Trust Agreement. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the
Trust's properties or assets, including those included in the Trust Estate, to
any person unless (a) it shall have received an Opinion of Counsel rendered by a
law firm generally recognized to be qualified to opine concerning the tax
aspects of asset securitization to the effect that such transaction will not
have any material adverse tax consequence to the Trust or any Certificateholder
and (b) such conveyance or transfer shall not violate the provisions of Section
3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Owner Trustee shall
not take action unless at least 10 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
14
Trustee in writing prior to the 10th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(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 under the Assets) 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 under the Assets);
(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
Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required; (d) the amendment
of the Indenture by a supplemental indenture in circumstances where the consent
of any Noteholder is not required and such amendment materially adversely
affects the interest of the Certificateholders; and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust 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 Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders to (a) remove the Servicer under the Servicing
Agreement pursuant to Sections 7.01 and 8.05 thereof or (b) except as expressly
provided in the Basic Documents, sell the Assets after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Certificateholders.
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Certificateholders and the consent of the Noteholders and the
Owner Trustee and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent. This paragraph shall survive
for one year following termination of this Trust Agreement.
Section 4.09. Restrictions on Certificateholders' Power. The
Certificateholders 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 Trust Agreement or any of the Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Trust
Agreement may be taken by the Holders
15
of Certificates evidencing not less than a majority Percentage Interest of the
Certificates. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates at the time of the delivery of such
notice.
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01. Distributions.
(a) On each Payment Date, the Certificate Paying Agent shall
distribute to the Certificateholders, on a pro rata basis based on the
Certificate Percentage Interests thereof, all funds remaining on deposit in the
Certificate Distribution Account and available therefor (as provided in Section
3.05 of the Indenture) for such Payment Date after payment of any expense
amounts owing to the Owner Trustee hereunder and any Expenses of the Trust
remaining unpaid.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise distributable
to the Certificateholders 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 a
Certificateholder shall be treated as cash distributed to such 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.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to
the creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date as
provided in Section 5.01 shall be made to each Certificateholder of record on
the preceding Record Date by wire transfer, in immediately available funds, to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such 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
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.03. Tax Returns. Pursuant to the Servicing Agreement, the
Servicer and the Administrator have agreed that they shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis using
the accrual method of accounting, (b) prepare and file or cause to be prepared
and filed such tax returns relating to the Trust as may be required by the
16
Code and applicable Treasury Regulations (making such elections as may from time
to time be required or appropriate under any applicable state or federal
statutes, rules or regulations); provided, however, that the Administrator shall
not be required to prepare and file partnership tax returns on behalf of the
Issuer unless the Administrator receives an opinion of counsel reasonably
satisfactory to it (which shall not be at the Indenture Trustee's expense, but
shall be at the expense of the Depositor or other party furnishing such opinion)
as to the necessity of such filings and provided further, that the neither the
Servicer nor the Administrator shall be required to compute the Issuer's gross
income except to the extent it can do so without unreasonable effort or expense
based upon income statements furnished to it. Pursuant to the Indenture and
solely with respect to filing Form 1099 tax returns, the Indenture Trustee has
agreed that it shall (a) deliver (or cause to be delivered) to each Noteholder
and Certificateholder as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable each
Certificateholder to prepare its federal and state income tax returns and (b)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.01 of this Trust Agreement with respect to income or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto. The Owner Trustee shall sign all tax and
information returns prepared or caused to be prepared by the Administrator and
the Indenture Trustee pursuant to this Section 5.03 at the request of the
Administrator or the Indenture Trustee, and in doing so shall rely entirely
upon, and shall have no liability for information or calculations provided by,
the Administrator or the Indenture Trustee.
Section 5.04. Statements to Certificateholders. On each Payment
Date, the Certificate Paying Agent shall make available to each
Certificateholder the statement or statements provided to the Owner Trustee and
the Certificate Paying Agent by the Indenture Trustee pursuant to Section 7.05
of the Indenture with respect to such Payment Date; provided, however, that in
the event that any monthly statement is no longer available, at the request of
any Certificateholder, the Indenture Trustee will deliver such monthly statement
to such Certificateholder.
ARTICLE VI
CONCERNING THE BANK
Section 6.01. Acceptance of Trusts and Duties. The Bank accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Trust Agreement. The Bank and the
Certificate Paying Agent also agree to disburse all moneys actually received by
it constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Trust Agreement. The Bank shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, gross negligence or bad faith or
grossly negligent failure to act or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the Bank.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) The Bank shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Certificateholders permitted under this Trust Agreement;
17
(b) No provision of this Trust Agreement or any Basic Document
shall require the Bank to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights, duties or powers hereunder or
under any Basic Document 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;
(c) Under no circumstances shall the Bank be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(d) The Bank shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificates, other than
the certificate of authentication on the Certificates, if executed and
authenticated by the Bank and the Bank shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The Bank shall not be liable for the default or misconduct of
the Depositor, Indenture Trustee, Certificate Registrar or the Servicer under
any of the Basic Documents or otherwise and the Bank shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture, the Servicer under the Servicing Agreement or the Seller or
the Originator under the Asset Purchase Agreement.
(f) The Bank shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Bank security or indemnity satisfactory
to it against the costs, expenses and liabilities that may be incurred by the
Bank therein or thereby. The right of the Bank to perform any discretionary act
enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Bank shall not be answerable for other than its
gross negligence or willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Bank shall furnish to the
Noteholders and Certificateholders promptly upon receipt of a written reasonable
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Bank under the Basic Documents.
Section 6.03. Representations and Warranties. The Bank hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Trust Agreement;
18
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Bank or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This Trust Agreement assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding obligation of
the Bank, enforceable against it in accordance with the terms hereof subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and to general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(e) The execution, delivery, authentication and performance by it
of this Trust Agreement will not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action with respect to, any governmental authority or agency;
(f) The Bank is not in default with respect to any order or decree
of any court or any order, regulation or demand of any Federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Bank or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(g) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit its entering into
this Trust Agreement or performing its obligations under this Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
(a) The Bank shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, note, 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 Bank may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party 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 method of determination of which is not
specifically prescribed herein, the Bank may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Bank for any action
taken or omitted to be taken by it in good faith in reliance thereon.
19
(b) In the exercise or administration of the Trust hereunder and
in the performance of its duties and obligations under this Trust Agreement or
the Basic Documents, the Bank (i) may act directly or through its agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) pursuant to agreements entered into with any of them, and the Bank
shall not be liable for the conduct or misconduct of such agents, attorneys,
custodians or nominees (including persons acting under a power of attorney) if
such persons have been selected by the Bank with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. The Bank shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the opinion or
advice of any such counsel, accountants or other such Persons and not contrary
to this Trust Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided
in this Article VI, in accepting the trusts hereby created [_______________]
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Bank by reason of the transactions
contemplated by this Trust Agreement or any Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06. Bank Not Liable for Certificates or Related Documents.
The recitals contained herein and in the Certificates (other than the signatures
of the Bank on the Certificates) shall be taken as the statements of the
Depositor, and the Bank assumes no responsibility for the correctness thereof.
The Bank makes no representations as to the validity or sufficiency of this
Trust Agreement, of any Basic Document or of the Certificates (other than the
signatures of the Bank on the Certificates) or the Notes, or of any Related
Documents. The Bank shall at no time have any responsibility or liability with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this Trust Agreement
or the Noteholders under the Indenture, including compliance by the Depositor,
the Originator or the Seller with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such warranty
or representation, or any action of the Certificate Paying Agent, the
Certificate Registrar or the Indenture Trustee taken in the name of the Owner
Trustee.
Section 6.07. Bank May Own Certificates and Notes. The Bank in its
individual or any other capacity may, subject to Section 3.05, become the owner
or pledgee of Certificates or Notes and may deal with the Depositor, the Seller,
the Certificate Paying Agent, the Certificate Registrar and the Indenture
Trustee in transactions with the same rights as it would have if it were not
Owner Trustee.
Section 6.08. Payments from Owner Trust Estate. All payments to be
made by the Owner Trustee under this Trust Agreement or any of the Basic
Documents to which the Bank is a party shall be made only from the income and
proceeds of the Owner Trust Estate or from other amounts required to be provided
by the Certificateholders and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
[______________], in its individual capacity, shall not be liable for any
amounts payable under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party.
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Section 6.09. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither [_______________] 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, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) 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; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by [_______________]; or (iii) subject [_______________] 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.
Section 6.10. Liability of Certificate Registrar and Certificate
Paying Agent. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including but not limited to the provisions of
this Agreement permitting the Owner Trustee to resign, merge or consolidate,
shall inure as well to the Certificate Registrar and Certificate Paying Agent.
In addition, [_______________], in its capacities as Certificate Registrar and
Certificate Paying Agent hereunder shall be afforded all the rights,
protections, immunities and indemnities afforded to it in its capacity as
Indenture Trustee under the Indenture as if specifically set forth herein.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee Fees and Expenses. The Bank shall
receive as compensation for its services hereunder the Owner Trustee Fee (which,
beginning on the 13th Payment Date, will be paid pursuant to Section 8.02(i)(B)
of the Indenture), and the Bank shall be reimbursed pursuant to Section
8.02(xii) of the Indenture for its reasonable expenses hereunder and under the
Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may reasonably employ in connection with the exercise and performance of
its rights and its duties hereunder and under the Basic Documents. Any amounts
owing to the Bank hereunder in excess of such amounts shall be paid pursuant to
a separate side agreement between the Owner Trustee and the Servicer.
Section 7.02. Indemnification. The Depositor shall indemnify, defend
and hold harmless the Bank, the Certificate Registrar and the Certificate Paying
Agent, solely in its capacity as Certificate Paying Agent, and their respective
successors, assigns, agents and servants (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust
21
Estate or the action or inaction of the Owner Trustee, the Certificate Registrar
and the Certificate Paying Agent, solely in its capacity as Certificate Paying
Agent, hereunder, provided, that:
(i) the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or
resulting from the Owner Trustee's, the Certificate Registrar's or
the Certificate Paying Agent's willful misconduct, gross negligence
or bad faith or as a result of any inaccuracy of a representation or
warranty of the Owner Trustee contained in Section 6.03 expressly
made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party
shall have given the Depositor written notice thereof promptly after
the Indemnified Party shall have actual knowledge thereof,
(iii) while maintaining control over its own defense, the
Depositor shall consult with the Indemnified Party in preparing such
defense; and
(iv) notwithstanding anything in this Agreement to the
contrary, the Depositor shall not be liable for settlement of any
claim by an Indemnified Party entered into without the prior consent
of the Depositor which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee, the Certificate Registrar or
the Certificate Paying Agent or the termination of this Trust Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section 7.02, the Owner Trustee's, the Certificate Registrar's
or the Certificate Paying Agent's choice of legal counsel, if other than the
legal counsel retained by the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent in connection with the execution and delivery of this
Trust Agreement, shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld. In addition, upon written notice to
the Owner Trustee, the Certificate Registrar or the Certificate Paying Agent and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent, as applicable, which consent shall not be unreasonably
withheld, the Depositor has the right to assume the defense of any claim, action
or proceeding against the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.
(a) This Trust Agreement (other than Article VII) and the Trust
shall terminate and be of no further force or effect upon the earliest of (i)
the final distribution of all moneys or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture and this Trust
Agreement, (ii) the distribution of all of the assets of the Owner Trust Estate,
in accordance with written instructions provided to the Owner Trustee by the
Majority Certificateholder, following the optional redemption of the Notes by
the Issuer pursuant to
22
Section 8.07 of the Indenture; provided in each case that all amounts owing to
the Noteholders to the extent payable from the Owner Trust Estate or proceeds
thereof have been paid in full and that all obligations under the Indenture have
been discharged. The bankruptcy, liquidation, dissolution, death or incapacity
of any Certificateholder shall not (x) operate to terminate this Trust Agreement
or the Trust or (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or the Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to Certificateholders
mailed within five Business Days of receipt of notice of the final payment on
the Notes from the Indenture Trustee, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates 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
Certificates at the office of the Certificate Payment Agent therein specified.
The Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the Depositor.
(d) Upon the winding up of the Trust and its termination, and
notice thereof by the Majority Certificateholder, the Owner Trustee shall 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(c)
of the Statutory Trust Statute.
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
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 that has) a [rating of at least Baa3 by Moody's] or
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
9.01, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at
any time resign and be discharged from the trusts hereby created by giving 30
days prior written notice thereof to the Depositor. 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 to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 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 9.01 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 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.
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 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee and to its predecessor Owner Trustee an instrument accepting
such appointment under this Trust 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
24
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust 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 Trust Agreement; 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 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies.
Section 9.04. 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, 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;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate, 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 Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions 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
25
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 Owner Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) No trustee under this Trust Agreement shall be personally
liable by reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee 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 each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust 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.
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
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments.
(a) This Trust Agreement may be amended from time to time by the
parties hereto as specified in this Section, provided that any amendment, except
as provided in subparagraph (e) below, be accompanied by an Opinion of Counsel
addressed to the Owner Trustee, the Certificate Registrar and the Certificate
Paying Agent and obtained by the Servicer to the effect that such amendment (i)
complies with the provisions of this Section and (ii) if [_______________]. is
not the Majority Certificateholder, would not cause the Trust to be subject to
an entity level tax for federal income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered (i.e. to give effect to the intent of the parties
and, if applicable, to the expectations of the Holders), it shall not
26
be necessary to obtain the consent of any Holders, but the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be furnished with
(A) a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or the rating
then assigned to any Note or (B) an Opinion of Counsel obtained by the Servicer
to the effect that such action will not adversely affect in any material respect
the interests of any Holders.
(c) If the purpose of the amendment is to prevent the imposition
of any federal or state taxes at any time that any Security is outstanding, it
shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
furnished with an Opinion of Counsel obtained by the Servicer that such
amendment is necessary or helpful to prevent the imposition of such taxes and is
not materially adverse to any Holder.
(d) If the purpose of the amendment is to add or eliminate or
change any provision of the Trust Agreement other than as contemplated in (b)
and (c) above, the amendment shall require (A) an Opinion of Counsel obtained by
the Servicer to the effect that such action will not adversely affect in any
material respect the interests of any Holders of the Notes and Certificates and
(B) either (a) a letter from the Rating Agency that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any Note
or the rating then assigned to any Note or (b) the consent of Holders of
Certificates evidencing a majority Percentage Interest of the Certificates and
the Indenture Trustee; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received
that are required to be distributed on any Certificate without the consent of
the related Certificateholder, or (ii) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then outstanding.
(e) If the purpose of the amendment is to provide for the holding
of any of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates then outstanding; provided, that the Opinion of
Counsel specified in subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance
of additional certificates representing an interest in the Trust, it shall not
be necessary to obtain the consent of any Holder, but the Owner Trustee and the
Indenture Trustee shall be furnished with (A) an Opinion of Counsel obtained by
the Servicer to the effect that such action will not adversely affect in any
material respect the interests of any Holders, (B) an Opinion of Counsel
obtained by the Servicer to the effect that such action will not cause the Trust
to be (i) treated as an association taxable as a corporation for federal income
tax and relevant state income and franchise tax purposes or (ii) taxable as a
"publicly traded partnership" as defined in Treasury Regulation section 1.7704-1
for federal income tax purposes and relevant state franchise or income tax
purposes and (C) a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any Notes
or the rating then assigned to the Notes.
27
(g) Promptly after the execution of any such amendment or consent,
the Servicer shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies. It shall not be necessary for the consent of
Certificateholders or the Indenture Trustee pursuant to this Section 10.01 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 Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any
agreement to which the Trust is a party, other than this Trust Agreement, the
Owner Trustee shall be entitled to receive and conclusively rely upon an Opinion
of Counsel to the effect that such amendment is authorized or permitted by the
documents subject to such amendment and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
(i) No amendment or agreement affecting the rights or duties of
the Owner Trustee, the Certificate Registrar or the Certificate Paying Agent may
be entered into without the consent of the affected party.
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 of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles V
and VIII. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Trust Agreement (other than Section 2.07), whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Trust Agreement or any covenants, conditions or provisions contained herein.
Section 10.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt,
to the Owner Trustee at:
28
[____________],[___________]; to the Depositor at: [____________],[___________],
to the Indenture Trustee, the Certificate Registrar and the Certificate Paying
Agent at the Corporate Trust Office of the Indenture Trustee; to [Moody's at: 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Residential Mortgage
Monitoring Unit]; to [Standard & Poor's at: 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000]; or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
(c) A copy of any notice delivered to the Owner Trustee or the
Trust shall also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement
that 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 10.06. Separate Counterparts. This Trust 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 10.07. Successors and Assigns. All representations,
warranties, covenants and agreements contained herein shall be binding upon, and
inure to the benefit of, each of the Depositor, the Owner Trustee and its
successors, and each Certificateholder and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this
Trust Agreement and each Certificateholder, by accepting a Certificate, 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 proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this Trust
Agreement.
Section 10.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Originator, the Seller, the Owner Trustee, the
Indenture Trustee, the Certificate Registrar, the Certificate Paying Agent or
any Affiliate thereof and no recourse may be had against such parties or their
assets, except as
29
may be expressly set forth or contemplated in this Trust Agreement, the
Certificates or the Basic Documents.
Section 10.10. 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 10.11. GOVERNING LAW. THIS TRUST AGREEMENT 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.
Section 10.12. Integration. This Trust Agreement constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements and understandings pertaining
thereto.
30
IN WITNESS WHEREOF, the Depositor, the Certificate Registrar and the
Owner Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
ORIGEN RESIDENTIAL SECURITIES, INC.,
as Depositor
By:______________________________________
Name:
Title:
[______________],
as Owner Trustee
By:______________________________________
Name:
Title:
[______________],
as Certificate Registrar
and Certificate Paying Agent
By:______________________________________
Name:
Title:
EXHIBIT A
Form of Certificate
[Face]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT LETTER IN THE FORM OF EXHIBIT C TO
THE TRUST AGREEMENT, AN OPINION OF COUNSEL AND INVESTMENT LETTERS IN FORMS OF
EXHIBITS E AND F TO THE TRUST AGREEMENT, AS DESCRIBED IN THE TRUST AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE, SO LONG AS ANY NOTES
ARE OUTSTANDING, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A
CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A
U.S. PERSON OR CORPORATION UNDER U.S. LAW.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR HAS RECEIVED PROOF OF THE TRANSFEREE'S STATUS AS A REIT OR AS A
QUALIFIED REIT SUBSIDIARY, WITHIN THE MEANING OF SECTION 856(a) OR SECTION
856(i) OF THE CODE, RESPECTIVELY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE CODE
(OR COMPARABLE
A-1
PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY
OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OF
CERTIFICATES IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN ANY PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE AND WILL
NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR THE
SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE
DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR THE SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT
OR THE BASIC DOCUMENTS.
A-2
Certificate No. __________ Certificate Percentage Interest of
this Certificate: ________%
Cut-off Date: [_______, 20__]
Date of Amended and Restated First Payment Date:
Trust Agreement: [_______, 20__]
[_______, 20__]
Servicer: Certificate Interest Rate:
Origen Servicing, Inc. Weighted Average Pass-Through
Rate
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST [20__-_]
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Assets in Origen
Manufactured Housing Contract Trust [20__-_] (the "Trust"), a Delaware statutory
trust formed by ORIGEN RESIDENTIAL SECURITIES, INC., as depositor, pursuant to
the Trust Agreement referred to below.
This certifies that ________________ is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Trust Agreement, dated as of
[_______, 20__], by and among the Depositor, [______________], as owner trustee
(the "Owner Trustee", which term includes any successor entity under the Trust
Agreement) and [______________],as certificate registrar and certificate paying
agent (as amended and supplemented from time to time, the "Trust Agreement"), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust
Certificates, Series [20__-_] (herein called the "Certificates") issued under
the Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the Holders
of the Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement. The
Owner Trust Estate consists of the Assets in the Origen Manufactured Housing
Contract Trust [20__-_]. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Notes, as set forth in the
Indenture.
There will be distributed on the [___] day of each month or, if such
[___] day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on [________, 20__], to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding such Payment Date (the "Record Date"),
A-3
such Certificateholder's Percentage Interest in the amount to be distributed to
Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Payment Account that
have been released from the Lien of the Indenture for payment hereunder and that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Trust Agreement or, except as expressly provided in the Trust
Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are subordinated
to the rights of the Noteholders as described in the Indenture, dated as of
[___________, 20__], between the Trust and [_______________], as Indenture
Trustee (the "Indenture").
The Depositor and each Certificateholder, by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for federal, state and local income tax purposes
as an equity interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Depositor, or join in any institution against the Depositor or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Certificate Paying Agent by wire transfer or check mailed
to the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency specified in such notice.
No transfer, sale, pledge or other disposition of a Certificate
shall be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act and any applicable
state securities laws or is made in accordance with said Act and laws. In the
event of any such transfer, the Certificate Registrar or the Depositor shall
prior to such transfer require the transferee to execute (A) either (i) (a) an
investment letter in substantially the form attached to the Agreement as Exhibit
C (or in such form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor) which investment letter shall not be an expense of
the Trust, the Owner Trustee, the Certificate Registrar, the Servicer or
A-4
the Depositor and which investment letter states that, among other things, such
transferee (1) is a "qualified institutional buyer" as defined under Rule 144A,
acting for its own account or the accounts of other "qualified institutional
buyers" as defined under Rule 144A, and (2) is aware that the proposed
transferor intends to rely on the exemption from registration requirements under
the Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit E to the Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit F to the Agreement, each acceptable to and
in form and substance satisfactory to the Certificate Registrar and the
Depositor certifying the facts surrounding such transfer, which representation
letters shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Servicer or the Depositor and (B) the Certificate of Non-Foreign
Status (in substantially the form attached to the Agreement as Exhibit D)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the Indenture
Trustee, the Certificate Paying Agent, the Certificate Registrar, the Servicer
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer are provided with an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that the purchase of Certificates is permissible under
applicable law, will not constitute or result in any prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor, the
Owner Trustee, the Certificate Registrar or the Servicer to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Trust Agreement, which Opinion
of Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer. In lieu of such Opinion of Counsel, a
Person may provide a certification in the form of Exhibit G to the Agreement,
which the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer may rely upon without further inquiry or investigation. Neither an
Opinion of Counsel nor a certification will be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee, shall be a written representation) from the Depositor of the status of
such transferee as an affiliate of the Depositor.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner
A-5
Trustee an Opinion of Counsel, rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, to the
effect that such transfer (including any disposition permitted following any
default under any pledge or repurchase transaction) will not cause the Trust to
be (i) treated as an association taxable as a corporation for federal income tax
and relevant state income and franchise tax purposes or (ii) taxable as a
"publicly traded partnership" as defined in Treasury Regulation section 1.7704-1
for federal income tax purposes and relevant state franchise or income tax
purposes.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not entitle the Holder hereof
to any benefit under the Trust Agreement or be valid for any purpose.
THIS 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.
A-6
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST [20__-_]
BY: [_____________________],
not in its individual capacity
but solely as Owner Trustee
Dated: [____________, 20__] By:_____________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned
Agreement.
[_____________________________],
not in its individual capacity
but solely as Owner Trustee
By: ________________________________________
Authorized Signatory
or ________________________________________,
as Authenticating Agent of the Trust
By: ________________________________________
Authorized Signatory
A-7
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest
in, the Depositor, the Originator, the Seller, the Servicer, the Indenture
Trustee, the Certificate Paying Agent, the Certificate Registrar, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein or
in the Trust Agreement or the Basic Documents. In addition, this Certificate is
not guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries with respect to the
Assets, all as more specifically set forth herein and in the Trust Agreement. A
copy of the Trust Agreement may be examined by any Certificateholder upon
written request during normal business hours at the principal office of the
Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified
below, provided that any amendment be accompanied by an Opinion of Counsel to
the Owner Trustee to the effect that such amendment complies with the provisions
of the Trust Agreement and, if [_____________] was not the Majority
Certificateholder, would not cause the Trust to be subject to an entity level
tax. If the purpose of the amendment is to correct any mistake, eliminate any
inconsistency, cure any ambiguity or deal with any matter not covered, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee
shall be furnished with a letter from the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to
any Note or the rating then assigned to any Note. If the purpose of the
amendment is to prevent the imposition of any federal or state taxes at any time
that any Security is outstanding, it shall not be necessary to obtain the
consent of the any Holder, but the Owner Trustee shall be furnished with an
Opinion of Counsel that such amendment is necessary or helpful to prevent the
imposition of such taxes and is not materially adverse to any Holder. If the
purpose of the amendment is to add or eliminate or change any provision of the
Trust Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note or (b) the consent
of Holders of the Certificates evidencing a majority of the Percentage Interests
of the Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment without the consent of the Holders of all such Certificates then
outstanding.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trust, as provided in the Trust Agreement, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is [_______].
A-8
Except as provided in the Trust Agreement, the Certificates are
issuable only in a minimum Certificate Percentage Interest of 10%. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
A-9
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 Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said 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 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-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to
_________________________________________
__________________________________________________
for the account of ________________________________________________, account
number ________________________, or, if mailed by check, to
______________________________.
Applicable statements should be mailed to _____________________.
______________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
A-11
EXHIBIT B
CERTIFICATE OF TRUST OF
Origen Manufactured Housing Contract Trust [20__-_]
THIS Certificate of Trust of Origen Manufactured Housing Contract
Trust [20__-_] (the "Trust"), dated [__________, 20__], is being duly executed
and filed by [_______________], a Delaware banking corporation, as trustee, to
form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code,
Section 3801 et seq.).
1. Name. The name of the statutory trust formed hereby is
Origen Manufactured Housing Contract Trust [20__-_].
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is [__________________________].
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
[____________________],
not in its individual capacity but solely as
owner trustee under a Trust Agreement dated
as of [___________, 20__]
By:
__________________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
___________________________________________
___________________________________________
___________________________________________
___________________________________________
The undersigned seller, as registered holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, 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
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor (as defined in the Trust Agreement (the
"Agreement"), dated as of [_________, 20__], among Origen Residential
Securities, Inc., as Depositor, [_____________], as Owner Trustee, and
[______________], as Certificate Registrar and Certificate Paying Agent)
pursuant to Section 3.05 of the Agreement and [_______________], as indenture
trustee, as follows:
a. The Buyer understands that the Rule 144A
Securities have not been registered under the 1933 Act or the
securities laws of any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
C-1
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Indenture Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or
any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with
respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, 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 Rule 144A Securities under
the 1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner
with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as
that term is defined in Rule 144A under the 1933 Act and has
completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. The Buyer is aware that the
sale to it is being made in reliance on Rule 144A. The Buyer is
acquiring the Rule 144A Securities for its own account or the
accounts of other qualified institutional buyers, understands that
such Rule 144A Securities may be resold, pledged or transferred only
(i) 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 (ii) pursuant to another exemption from registration under the
1933 Act.
[3. The Buyer warrants and represents to, and covenants with, the
Seller, the Originator, the Indenture Trustee, Owner Trustee, Servicer and the
Depositor that either (1) the Buyer is (A) not an employee benefit plan (within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), or a plan (within the meaning of Section 4975(e)(1)
of the Internal Revenue Code of 1986 ("Code")), which (in either case) is
subject to ERISA or Section 4975 of the Code (both a "Plan"), and (B) is not
directly or indirectly purchasing the Rule 144A Securities on behalf of, as
investment manager of, as named fiduciary of, as trustee of, or with "plan
assets" of a Plan, or (2) the Buyer understands that registration of transfer of
any Rule 144A Securities to any Plan, or to any Person acting on behalf of any
Plan, will not be made unless such Plan delivers an opinion of its counsel,
addressed and satisfactory to the Certificate Registrar, the Owner Trustee, the
Servicer and the Depositor, to the effect that the purchase and holding of the
Rule 144A Securities by, on behalf of or with "plan assets" of any Plan is
permissible under applicable law, would not constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, and would not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer to any
obligation or liability (including liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer.]
C-2
4. This document may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document
as of the date set forth below.
______________________________________ _______________________________
Print Name of Seller Print Name of Buyer
By: __________________________ By: __________________________
Name Name
Title Title
Taxpayer Identification: Taxpayer Identification:
No. ___________________ No. ___________________
Date: __________________ Date: __________________
C-3
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $________________(1) in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
- Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
- Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
- Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements.
- Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
- Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the
----------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-4
insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
- State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
- ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
- Investment Adviser. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
- SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
- Business Development Company. The Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
- Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the meaning
of Title I of the Employee Retirement Income Security Act of 1974, but is
not a trust fund that includes as participants individual retirement
accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
C-5
---------- ---------- Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
---------------------------------------------
Print Name of Buyer
By:
------------------------------------------
Name:
Title:
Date:
----------------------------------------
C-6
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
- The Buyer owned $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
- The Buyer is part of a Family of Investment Companies which owned in the
aggregate $_____________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit Notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
C-7
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
---------------------------------------------
Print Name of Buyer
By:
------------------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------------------
Print Name of Buyer
Date:
----------------------------------------
C-8
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.03 of the Trust Agreement, dated as of [___________, 20__]
(the "Trust Agreement"), among Origen Residential Securities, Inc., as
Depositor, [____________], as Owner Trustee and [____________], as Certificate
Registrar and Certificate Paying Agent, in connection with the acquisition of,
transfer to or possession by the undersigned, whether as beneficial owner for
U.S. federal income tax purposes (the "Beneficial Owner"), or nominee on behalf
of the Beneficial Owner of the Certificates, Series [20__-_] (the
"Certificate"). Capitalized terms used but not defined in this certificate have
the respective meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446
of the Internal Revenue Code (relating to withholding tax on foreign partners)
do not apply in respect of the Certificate held by the undersigned, the
undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien
for purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
------------------------
------------------------
------------------------; and
3. My (The Beneficial Owner's) U.S. taxpayer identification
number (Social Security Number) is
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. _____________________________ (Name of the Beneficial
Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those
terms are defined in the Code and Treasury Regulations;
D-1
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is __________________; and
3. The Beneficial Owner's U.S. employer identification
number is ___________________
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
- an IRS Form W-9
- a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
------------------------
Name
------------------------
Title (if applicable)
------------------------
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
D-2
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
[---------------], as Owner Trustee
[Address]
[---------------]
[Address]
Re: Origen Manufactured Housing Contract Trust [20__-_] Trust
Certificates, Series [20__-_] (the "Certificates")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates, we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are 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 Regulation D 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 investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), nor are we acting on behalf of any such plan, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act 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 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 Trust Agreement.
E-1
Very truly yours,
[TRANSFEREE]
By:
------------------------------
Authorized Officer
E-2
EXHIBIT F
TRANSFEROR CERTIFICATE
[---------------], as Owner Trustee
[Address]
[---------------]
[Address]
Re: Proposed Transfer of Trust Certificates,
Origen Manufactured Housing Contract Trust [20__-_]
Gentlemen:
This certification is being made by ____________________ (the
"Transferor") in connection with the proposed Transfer to _____________________
(the "Transferee") of a trust certificate (the "Trust Certificate") representing
___% fractional undivided interest in Origen Manufactured Housing Contract Trust
[20__-_] (the "Trust") created pursuant to a Trust Agreement, dated as of
[________, 20__] (the "Trust Agreement") among Origen Residential Securities,
Inc. (the "Company"), [______________], as Owner Trustee (the "Owner Trustee")
and [______________], as certificate registrar and certificate paying agent (the
"Certificate Registrar"). Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferor
hereby certifies, represents and warrants to, and covenants with, the Company,
the Owner Trustee and the Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Trust Certificate, any
interest in any Trust Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Trust Certificate, any interest in any
Trust Certificate or any other similar security from any person in any manner,
(c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar security
with any person in any manner, (d) has made any general solicitation by means of
general advertising or in any other manner, or (e) has taken any other action,
that (as to any of (a) through (e) above) would constitute a distribution of the
Trust Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Trust Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferor will not act in any manner set
forth in the foregoing sentence with respect to any Trust Certificate. The
Transferor has not and will not sell or otherwise transfer any of the Trust
Certificates, except in compliance with the provisions of the Trust Agreement.
F-1
Date:
----------------------- ---------------------------------------------
Name of Transferor
---------------------------------------------
Signature
---------------------------------------------
Name
---------------------------------------------
Title
F-2
EXHIBIT G
[DATE]
[---------------], as Owner Trustee
[Address]
[---------------]
[Address]
Re: Proposed Transfer of Trust Certificates,
Origen Manufactured Housing Contract Trust [20__-_] (the
"Certificates")
Gentlemen:
This certification is being made by (the "Transferee") in connection with
the proposed Transfer by (the "Transferor") of a trust certificate (the "Trust
Certificate") representing __% fractional undivided interest in Origen
Manufactured Housing Contract Trust [20__-_] (the "Trust") created pursuant to a
Trust Agreement, dated as of [_________, 20__] (the "Trust Agreement") among
Origen Residential Securities, Inc. (the "Company"), [_____________], as Owner
Trustee (the "Owner Trustee") and [________________], as certificate registrar
and certificate paying agent (the "Certificate Registrar"). Initially
capitalized terms used but not defined herein have the meanings assigned to them
in the Trust Agreement. The Transferee hereby certifies, represents and warrants
to, and covenants with, the Company, the Owner Trustee and the Certificate
Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferee is not any employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or the Internal Revenue Code of 1986 (the "Code"), a Person acting,
directly or indirectly, on behalf of any such plan or any Person acquiring
such Certificates with "plan assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. Section
2510.3-101; or
___ b. The Transferee is an employee benefit plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the Internal Revenue Code of 1986 (the "Code"), a Person acting, directly
or indirectly, on behalf of any such plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. Section 2510.3-101
and will provide the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer with an Opinion of Counsel, satisfactory to the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicer,
to the effect that the purchase and holding of a Certificate by or on
behalf of the Transferee is permissible under applicable law, will not
constitute or result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments)
G-1
and will not subject the Depositor, the Owner Trustee, the Certificate
Registrar or the Servicer to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which opinion of counsel shall not be
an expense of the Depositor, the Owner Trustee, the Certificate Registrar
or the Servicer; and
(ii) the Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and
407 of ERISA and Section 4975 of the Code and understands that each of the
parties to which this certification is made is relying and will continue
to rely on the statements made in this paragraph.
Very truly yours,
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
G-2
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
[---------------], as Owner Trustee
[Address]
[---------------]
[Address]
Re: Proposed Transfer of Trust Certificates,
Origen Manufactured Housing Contract Trust [20__-_]
Gentlemen:
This certification is being made by ____________________ (the
"Transferee") in connection with the proposed Transfer of a trust certificate
(the "Trust Certificate") representing ___% fractional undivided interest in
Origen Manufactured Housing Contract Trust [20__-_] (the "Trust") created
pursuant to a Trust Agreement, dated as of [________, 20__] (the "Trust
Agreement") among [Origen Residential Securities, Inc.] (the "Company"),
[_______________], as Owner Trustee (the "Owner Trustee") and [______________],
as certificate registrar and certificate paying agent (the "Certificate
Registrar"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferee hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
The Transferee is a REIT or a Qualified REIT Subsidiary within the meaning
of Section 856(a) or Section 856(i) of the Code, respectively.
Date:
------------------ ---------------------------------------------
Name of Transferor
---------------------------------------------
Signature
---------------------------------------------
Name
---------------------------------------------
Title
H-1
