EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE ACCEPTANCE CORP.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
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OWNER TRUST AGREEMENT
Dated as of February 12, 2003
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Xxxxx Whole Loan Home Equity Trust 2003-A
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ARTICLE I Definitions............................................1
Section 1.01 Definitions...................................1
Section 1.02 Other Definitional Provisions.................1
ARTICLE II Organization..........................................3
Section 2.01 Name..........................................3
Section 2.02 Office........................................3
Section 2.03 Purposes and Powers...........................3
Section 2.04 Appointment of Owner Trustee..................4
Section 2.05 Initial Capital Contribution..................4
Section 2.06 Declaration of Trust..........................4
Section 2.07 Title to Trust Property.......................4
Section 2.08 Situs of Trust................................4
Section 2.09 Representations and Warranties of the
Depositor..........................................5
ARTICLE III Conveyance of the Owner Trust Estate; The
Certificates................................................6
Section 3.01 Conveyance of the Owner Trust Estate..........6
Section 3.02 Initial Ownership.............................6
Section 3.03 The Certificates..............................6
Section 3.04 Authentication of Certificate.................6
Section 3.05 Registration of and Limitations on
Transfer and Exchange of Certificate...............7
Section 3.06 Mutilated, Destroyed, Lost or Stolen
Certificates.......................................9
Section 3.07 Persons Deemed Certificateholders.............9
Section 3.08 Access to Certificateholders' Name and
Addresses.........................................10
Section 3.09 Maintenance of Office or Agency..............10
Section 3.10 Certificate Paying Agent.....................10
Section 3.11 Subordination................................11
ARTICLE IV Authority and Duties of Owner Trustee................12
Section 4.01 General Authority............................12
Section 4.02 General Duties...............................12
Section 4.03 Action upon Instruction......................12
Section 4.04 No Duties Except as Specified under
Specified Documents or in Instructions............13
Section 4.05 Restrictions.................................13
Section 4.06 Prior Notice to the Certificateholders
with Respect to Certain Matters...................13
Section 4.07 Action by Certificateholders with Respect
to Certain Matters................................14
Section 4.08 Action by Certificateholder with Respect
to Bankruptcy.....................................14
Section 4.09 Restrictions on Certificateholders' Power....14
Section 4.10 Doing Business in Other Jurisdictions........14
ARTICLE V Application of Trust Funds............................16
Section 5.01 Distributions................................16
Section 5.02 Method of Payment............................16
Section 5.03 Signature on Returns.........................16
Section 5.04 Statements to Certificateholders.............16
Section 5.05 Tax Elections................................17
ARTICLE VI Concerning the Owner Trustee.........................18
Section 6.01 Acceptance of Trusts and Duties..............18
Section 6.02 Furnishing of Documents......................19
Section 6.03 Representations and Warranties...............19
Section 6.04 Reliance; Advice of Counsel..................20
Section 6.05 Not Acting in Individual Capacity............20
Section 6.06 Owner Trustee Not Liable for Certificates
or Related Documents..............................20
Section 6.07 Owner Trustee May Own the Certificates
and the Notes.....................................21
ARTICLE VII Compensation of Owner Trustee.......................22
Section 7.01 Owner Trustee's Fees and Expenses............22
Section 7.02 Indemnification..............................22
ARTICLE VIII Termination of Owner Trust Agreement...............24
Section 8.01 ...........Termination of Owner Trust
Agreement24
ARTICLE IX Successor Owner Trustees and Additional Owner
Trustees...................................................26
Section 9.01 Eligibility Requirements for Owner Trustee...26
Section 9.02 Replacement of Owner Trustee.................26
Section 9.03 Successor Owner Trustee......................26
Section 9.04 Merger or Consolidation of Owner Trustee.....27
Section 9.05 Appointment of Co-Trustee or Separate
Trustee...........................................27
ARTICLE X Miscellaneous.........................................29
Section 10.01 Amendments..................................29
Section 10.02 No Legal Title to Owner Trust Estate........30
Section 10.03 Limitations on Rights of Others.............30
Section 10.04 Notices.....................................30
Section 10.05 Severability................................31
Section 10.06 Separate Counterparts.......................31
Section 10.07 Successors and Assigns......................31
Section 10.08 No Petition.................................31
Section 10.09 No Recourse.................................31
Section 10.10 Headings....................................32
Section 10.11 GOVERNING LAW...............................32
Section 10.12 Integration.................................32
Section 10.13 Intention of the Parties....................32
EXHIBIT A - FORM OF CERTIFICATE.................................A-1
EXHIBIT B - FORM OF CERTIFICATE OF TRUST........................B-1
EXHIBIT C - FORM OF RULE 144A INVESTMENT REPRESENTATION.........C-1
EXHIBIT D - FORM OF INVESTOR REPRESENTATION LETTER..............D-1
EXHIBIT E - FORM OF TRANSFEROR REPRESENTATION LETTER............E-1
EXHIBIT F - FORM OF ERISA REPRESENTATION LETTER.................F-1
EXHIBIT G - FORM OF CERTIFICATE OF NON-FOREIGN STATUS...........G-1
EXHIBIT H - FORM OF REPRESENTATION LETTER.......................H-1
This Owner Trust Agreement, dated as of February 12, 2003
(as may be amended, modified or supplemented and in effect from
time to time, this "Owner Trust Agreement"), between CREDIT
SUISSE FIRST BOSTON MORTGAGE ACCEPTANCE CORP., a Delaware
corporation, as depositor (the "Depositor") and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as owner trustee (the
"Owner Trustee"),
WITNESSETH THAT:
WHEREAS, pursuant to the terms of the Loan Purchase
Agreement, DLJ Mortgage Capital, Inc. (in such capacity, the
"Seller") will sell to the Depositor the Loans together with the
Related Documents on the Closing Date;
WHEREAS, pursuant to the terms if this Owner Trust
Agreement, the Depositor desires to convey the Loans to the Trust;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the Depositor and the Owner Trustee agree as
follows:
ARTICLE I
Definitions
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Section 1.01. Definitions. For all purposes of this Owner Trust
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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 February 12, 2003
(the "Indenture"), between Xxxxx Whole Loan Home Equity Trust
2003-A, as issuer, and US Bank National Association, as indenture
trustee, as in effect on the date hereof. All other capitalized
terms used herein shall have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
-----------------------------
(a) All terms defined in this Owner 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 Owner Trust Agreement and in any certificate
or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Owner Trust Agreement or in
any such certificate or other document, and accounting terms
partly defined in this Owner 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 Owner Trust Agreement or
in any such certificate or other document are inconsistent with
the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Owner Trust
Agreement or in any such certificate or other document shall
control.
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(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Owner Trust Agreement shall
refer to this Owner Trust Agreement as a whole and not to any
particular provision of this Owner Trust Agreement; Article,
Section and Exhibit references contained in this Owner Trust
Agreement are references to Articles, Sections and Exhibits in or
to this Owner Trust Agreement unless otherwise specified; the
term "including" shall mean "including without limitation;" the
term "or" shall include "and/or"; and the term "proceeds" shall
have the meaning ascribed thereto in the UCC.
(d) The definitions contained in this Owner 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.
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ARTICLE II.
Organization
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Section 2.01. Name. The trust shall be known as "Xxxxx Whole
----
Loan Home Equity Trust 2003-A" (the "Trust" or the "Owner
Trust"), in which name the Owner Trustee may engage in the
transactions contemplated hereby, 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
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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
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to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Owner Trust Agreement and to sell
the Notes and the Certificates;
(ii) to purchase the Loans and to pay organizational, start-up
and transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Loans
pursuant to the Indenture and to hold, manage and distribute to
the Certificateholders pursuant to Section 5.01 any portion of
the Loans released from the Lien of, and remitted to the Trust
pursuant to the Indenture;
(iv) to assign, grant, transfer, own, pledge and convey the Loans
in connection with any such termination;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(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, including, without limitation, to accept additional
contributions of equity that are not subject to the Lien of the
Indenture; and
(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 Securityholders.
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 Owner Trust Agreement or the
Basic Documents while any Note is outstanding without the consent
of the Certificateholders and the Indenture Trustee.
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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. 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 of the
property assigned to the Trust pursuant to Section 3.01.
The Trust acknowledges the conveyance to the Trust by the
Depositor, as of the Closing Date, of the Owner Trust Estate,
including all right, title and interest of the Depositor in and
to the Owner Trust Estate. Concurrently with such conveyance,
the Trust has pledged the Trust Estate to the Indenture Trustee
and has executed the Certificates and the Notes and caused them
to be duly authenticated and delivered.
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 Owner Trust under the Basic Documents. It is the intention
of the parties hereto that the Owner Trust constitute a statutory
trust under the Statutory Trust Statute and that this Owner Trust
Agreement constitute the governing instrument of such statutory
trust. It is the intention of the parties hereto that, solely
for federal, state and local income and franchise tax purposes,
the Owner Trust shall be treated as a domestic eligible entity
with a single owner electing to be disregarded as a separate
entity. The parties agree that, unless otherwise required by
appropriate tax authorities, the Owner Trust will not file or
cause to be filed annual or other returns, reports or other
forms. 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 Owner Trust.
Section 2.07. Title to Trust Property. 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 2.08. Situs of Trust. The Trust will be located and
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administered in the State of Delaware or Minnesota. All bank
accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the State of Delaware or the State of
Minnesota. 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
Minnesota, and payments will be made by the Trust only from
Delaware or Minnesota. The only office of the Trust will be at
the Corporate Trust Office in Delaware.
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Section 2.09. Representations and Warranties of the Depositor.
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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 and the ability of the Depositor to perform under this
Owner Trust Agreement.
(iii) The Depositor has the power and authority to execute and
deliver this Owner Trust Agreement and to carry out its terms;
the Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trust
as part of the Trust and the Depositor has duly authorized such
sale and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of
this Owner Trust Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by this
Owner 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.
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ARTICLE III
Conveyance of the Owner Trust Estate; The Certificates
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Section 3.01. Conveyance of the Owner Trust Estate. In
---------------------------------------------
consideration of the delivery to the Depositor of the Securities,
the Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, convey, sell and assign to the
Trust, without recourse, (A) the Loans, including the Mortgage
Notes, the Mortgages, any related insurance policies and all
other documents in the related Loan Files and including any
Eligible Substitute Loans; (B) all pool insurance policies,
hazard insurance policies and bankruptcy bonds relating to the
foregoing, if applicable; and (C) all amounts payable after the
Cut-off Date to the holders of the Loans in accordance with the
terms thereof (collectively, the "Owner Trust Estate").
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 Loans pursuant to Section
3.01 and the issuance of the Certificates, the Depositor shall be
the sole Certificateholder.
Section 3.03. The Certificates. Initially, the Trust shall
-----------------
issue the Certificates in a single denomination of a 100.00%
Certificate Percentage Interest.
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. If the Certificates bear 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, it shall be validly issued and entitled to the
benefit of this Owner Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the authentication and delivery of the Certificates or
did not hold such offices at the date of authentication and
delivery of the Certificates. A Person shall become a
Certificateholder and shall be entitled to the rights and subject
to the obligations of the Certificateholders hereunder upon such
Person's acceptance of the Certificates 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 the Certificateholders hereunder upon such
transferee's acceptance of such 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 Certificate. Concurrently with
------------------------------
the acquisition of the Loans by the Trust, the Owner Trustee or
the Certificate Paying Agent shall cause a Certificate in an
aggregate Certificate Percentage Interest of 100.00% to be
executed 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 the
authorized denomination. A Certificate shall not entitle its
holder to any benefit under this Owner 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 Paying Agent, by manual signature; such
authentication shall constitute conclusive evidence that such
Certificate shall have been duly
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authenticated and delivered hereunder. Each Certificate shall
be dated the date of its authentication.
Section 3.05. Registration of and Limitations on Transfer and
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Exchange of Certificate. The Certificate Registrar shall keep or
-----------------------
cause to be kept, at the office or agency maintained pursuant to
Section 3.09, a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of the Certificates
and of transfers and exchanges of the Certificates as herein
provided. The Indenture Trustee shall be the initial Certificate
Registrar. If the Certificate Registrar resigns or is removed,
the Owner Trustee shall appoint a successor Certificate Registrar.
Upon surrender for registration or transfer of a Certificate
at the office or agency maintained pursuant to Section 3.09, the
Owner Trustee shall execute, authenticate and deliver (or shall
cause the Certificate Registrar as its authenticating agent to
authenticate and deliver) in the name of the designated
transferee or transferees, a new Certificate in authorized
denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent.
At the option of a Certificateholder, such Certificateholder's
Certificate may be exchanged for another Certificate of
authorized denominations of a like aggregate amount upon
surrender of the Certificate 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 registered holder of such
Certificate or such holder's attorney duly authorized in
writing. When a Certificate is surrendered for registration of
transfer or exchange it shall be canceled 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 any Certificate, but the Owner Trustee or
the Certificate Registrar may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of any Certificate.
Except as described below, no transfer of any Certificate or
interest therein shall be made to any Person that is not a United
States Person. Each Certificateholder 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 F hereto.
A Certificate may be transferred to a Certificateholder
unable to establish its non-foreign status as described in the
preceding paragraph only if such Certificateholder provides an
Opinion of Counsel, which Opinion of Counsel shall not be an
expense of the Trust, the Owner Trustee, the Certificate
Registrar or the Depositor, satisfactory to the Depositor, that
such transfer (1) will not affect the tax status of the Owner
Trust and (2) will not adversely affect the interests of the
Certificateholders or any Noteholder, including, without
limitation, as a result of the imposition of any United States
federal withholding taxes on the Trust (except to the extent that
such withholding taxes would be payable solely from amounts
otherwise distributable to the Certificate of the prospective
transferee). If such transfer occurs and such foreign
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Certificateholder becomes subject to such United States federal
withholding taxes, any such taxes will be withheld by the
Indenture Trustee. Each Certificateholder unable to establish
its non-foreign status shall submit to the Certificate Paying
Agent a copy of its Form W-8BEN and shall resubmit such Form
W-8BEN every three years.
No transfer, sale, pledge or other disposition of the
Certificates 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) 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 letters 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 (a) 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 (b) 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 D hereto, and the 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 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) a
Certificate of Non-Foreign Status (in substantially the form
attached hereto as Exhibit G) 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. If a Certificateholder is unable to provide a
Certificate of Non-Foreign Status, such Certificateholder must
provide an Opinion of Counsel as described in the preceding
paragraph. The Certificateholder 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 a Certificate or any interest therein shall
be made to any Person using Plan Assets 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 such Certificate
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 Trust, 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 Owner Trust Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner
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Trustee, the Certificate Registrar or the Servicer. In lieu of
such Opinion of Counsel, a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring a
Certificate with Plan Assets of a Plan may provide a
certification in the form of Exhibit F to this Owner Trust
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 the Certificates by the Depositor to the
Underwriter and the Depositor shall be deemed to have represented
that the Underwriter 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,
shall be a written representation) from the Depositor of the
status of such transferee as an affiliate of the Depositor.
In addition, no transfer of a Certificate shall be
permitted, and no such transfer shall be registered by the
Certificate Registrar or be effective hereunder, if such transfer
or the registration of such transfer would cause the Trust to be
classified as a publicly traded partnership, taxable as a
corporation for federal income tax purposes by causing the Trust
to have more than 100 Certificateholders at any time during the
taxable year of the Trust, an association taxable as a
corporation, a corporation or a taxable mortgage pool for federal
and relevant state income tax purposes.
In addition, no transfer, sale, assignment, pledge or other
disposition of a Certificate (other than the initial transfer by
the Depositor to the Underwriter) shall be made unless the
proposed transferee certifies, in form and substance reasonably
satisfactory to the Certificate Registrar and the Depositor that
(1) the transferee is acquiring such Certificate for its own
behalf and is not acting as agent or custodian for any other
person or entity in connection with such acquisition and (2) the
transferee is not a partnership, grantor trust or S corporation
for federal income tax purposes.
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 and the Trust from harm, then in the absence of
notice to the Certificate Registrar or the Owner Trustee that
such Certificate has been acquired by a protected purchaser, the
Owner Trustee shall execute on behalf of the Trust and the Owner
Trustee or the Certificate Paying Agent, as the Trust's
authenticating agent, 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 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.
Section 3.07. Persons Deemed Certificateholders. Prior to due
-----------------------------------
presentation of the Certificates 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
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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 Certificateholders' Name and Addresses.
--------------------------------------------------
The Certificate Registrar shall furnish or cause to be furnished
to the Depositor or the Owner Trustee, within 15 days after
receipt by the Certificate Registrar of a written request
therefor from the Depositor or the Owner Trustee, a list, in such
form as the Depositor 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
Certificateholder, by receiving and holding the Certificates,
shall be deemed to have agreed not to hold any of the Trust, the
Depositor, 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 in the City of New
York an office or offices or agency or agencies where the
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 and the Basic Documents
may be served. The Owner Trustee initially designates the
Corporate Trust Office of the Indenture Trustee as its office for
such purposes. The Owner Trustee shall give prompt written
notice to the Depositor 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 the 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 the Indenture Trustee as
Certificate Paying Agent. The Certificate Paying Agent 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 it has actual knowledge in the making of any payment
required to be made with respect to the Certificates;
(iii) at any time during the continuance of any such default by
the Trust, upon the written request of the Owner Trustee
forthwith pay to the Owner Trustee on behalf of the Trust all
sums held in trust by the Certificate Paying Agent pursuant to
clause (i) above;
(iv) immediately resign as Certificate Paying Agent and forthwith
pay to the Owner Trustee on behalf of the Trust all sums held by
it in trust for the payment of the Certificates if at any time it
ceases to meet the standards required to be met by the
Certificate Paying Agent at the time of its appointment;
10
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on the Certificates of
any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith;
and
(vi) deliver to the Owner Trustee a copy of the report to
Certificateholders prepared with respect to each Payment Date by
the Indenture Trustee.
(b) The Trust may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole
discretion that the Certificate Paying Agent shall have failed to
perform its obligations under this Owner Trust Agreement in any
material respect. The Indenture Trustee shall be permitted to
resign as Certificate Paying Agent upon 30 days written notice to
the Owner Trustee; provided the Indenture Trustee is also
resigning as Paying Agent under the Indenture at such time. In
the event that the Indenture Trustee shall no longer be the
Certificate Paying Agent under this Owner Trust Agreement and
Paying Agent under the Indenture, 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 appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument to the
effect set forth in this Section 3.10 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 and 7.01 shall apply to the Certificate
Paying Agent to the extent applicable. Any reference in this
Owner Trust 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 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 on the Certificates from moneys on deposit
in the Certificate Distribution Account.
Section 3.11. Subordination. Except as otherwise provided in
-------------
the Basic Documents, for so long as any Notes are outstanding or
unpaid, the Certificateholders will generally be subordinated in
right of payment, under the Certificates or otherwise, to
payments to the Noteholders under, or otherwise related to, the
Indenture. If an Event of Default has occurred and is continuing
under the Indenture, the Certificates will be fully subordinated
to obligations owing by the Trust to the Noteholders under, or
otherwise related to, the Indenture, and no distributions will be
made on the Certificates until the Noteholders and the Indenture
Trustee have been irrevocably paid in full.
11
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, in each case, in such form as the Owner Trustee
shall approve, as evidenced conclusively by the Owner Trustee's
execution thereof.
Section 4.02. General Duties. The Owner Trustee shall be
----------------
responsible to administer the Trust pursuant to the terms of this
Owner Trust Agreement and in the interest of the
Certificateholders, subject to the Basic Documents and in
accordance with the provisions of this Owner Trust Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties under this Owner Trust Agreement
and the other Basic Documents to the extent that the Seller or
the Administrator shall have agreed in the Administration
Agreement to perform the duties of the Owner Trustee or the
Trust, and the Owner Trustee shall not be responsible for
monitoring the performance of such duties by the Seller or the
Administrator nor shall the Owner Trustee be liable for the acts
or omissions of the Seller or the Administrator. In no event
shall the Owner Trustee be obligated to assume the duties of the
Seller or Administrator in the event of the Seller's or
Administrator's resignation, removal, insolvency or other
incapacity.
Section 4.03. Action upon Instruction.
-----------------------
(a) Subject to this Article IV and in accordance with the terms
of the Basic Documents, holders of a majority of the Certificate
Percentage Interest 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 a majority of the
Certificate Percentage Interest pursuant to this 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 or is
unable to decide between alternative courses of action permitted
or required by the terms of this Owner 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 Owner 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 Owner 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
12
Certificateholders requesting direction 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
instructions received from such Certificateholder, the Owner
Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate
instruction within 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 Owner 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 required by this Owner Trust Agreement; and no
implied duties or obligations shall be read into this Owner Trust
Agreement or any Basic Document against the Owner Trustee. The
Owner Trustee shall have no responsibility to prepare or file any
financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare
or file any Securities and Exchange Commission filing for the
Trust or to record this Owner Trust Agreement or any Basic
Document. 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 in its individual capacity that are not related to the
ownership or the administration of the Owner Trust Estate.
Section 4.05. Restrictions.
------------
(a) The Owner Trustee shall not take any action (x) that is
inconsistent with the purposes of the Trust set forth in Section
2.03 or (y) that, to the actual knowledge of the Owner Trustee,
would result in the Trust becoming taxable as a corporation for
federal income tax purposes. 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
Owner Trust Estate, to any person unless (a) it shall have
received an Opinion of Counsel 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 3.15(b) of
the Indenture.
Section 4.06. Prior Notice to the Certificateholders with
---------------------------------------------------
Respect to Certain Matters. With respect to the following
------------------------------
matters, the Owner Trustee shall not take action unless at least
30 days before the taking of such action, the Owner Trustee shall
have notified the Certificateholders of the proposed action and
the holders of a majority of the Certificate Percentage Interest
shall not have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such holders have
withheld consent or provided alternative direction:
13
(a) the initiation of any claim or lawsuit by the Trust and the
compromise of any action, claim or lawsuit brought by or against
the Trust;
(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 Owner 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 Owner 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 Loans 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 Certificateholder 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 prior approval of the Certificateholders and
the delivery to the Owner Trustee by each Certificateholder of a
certificate certifying that such Certificateholder reasonably
believes that the Trust is insolvent.
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 Owner 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. Doing Business in Other Jurisdictions.
--------------------------------------------------
Notwithstanding anything contained herein to the contrary,
neither Wilmington Trust Company 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 Wilmington Trust Company, or
(iii) subject Wilmington Trust Company to personal jurisdiction
in any jurisdiction other than the State of Delaware for causes
14
of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as
the case may be, contemplated hereby.
15
ARTICLE V
Application of Trust Funds
--------------------------
Section 5.01. Distributions.
-------------
(a) On each Payment Date, the Certificate Paying Agent shall
distribute to each Certificateholder, pursuant to the terms set
forth in the Certificates, all funds on deposit in the
Certificate Distribution Account and available therefor (as
provided in Section 3.05 of the Indenture), as the Certificate
Distribution Amount for such Payment Date.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to the
Certificateholders, such tax shall reduce the amount otherwise
distributable to the Certificateholders 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 any Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is
withheld by the Certificate Paying Agent. The amount of any such
withholding tax shall be remitted by the Certificate Paying
Agent, as required, 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 the Certificateholders shall be
subordinated to the creditors of the Trust, including the
Noteholders.
(d) Allocations of profits and losses, as determined for federal
income tax purposes, shall be made to the Certificateholders on a
pro rata basis based on the Certificate Percentage Interests
thereof.
Section 5.02. Method of Payment. Subject to Section 8.01(c),
------------------
distributions required to be made to the Certificateholders on
any Payment Date as provided in Section 5.01 shall be made to the
Certificateholders of record on the preceding Record Date by wire
transfer, in immediately available funds, to the account of each
Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholders 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 Certificateholder appearing in the Certificate
Register.
Section 5.03. Signature on Returns. The Administrator shall
----------------------
sign on behalf of the Trust the tax returns of the Trust.
Section 5.04. Statements to Certificateholders. On each Payment
---------------------------------
Date, the Certificate Paying Agent shall make available on its
website the statement or statements provided to the Owner Trustee
and the Certificate Paying Agent by the Indenture Trustee.
16
Section 5.05. Tax Elections.
-------------
The Certificateholder agrees by its purchase of a
Certificate to treat the Trust as a domestic eligible entity with
a single owner electing to be disregarded as a separate entity
for purposes of federal and state income tax, franchise tax and
any other tax measured in whole or in part by income, with the
Notes being debt of the Trust, as further set forth in Section
2.06. For income tax purposes the parties hereto intend that the
transaction set forth herein shall not be a taxable event.
17
ARTICLE VI
Concerning the Owner Trustee
----------------------------
Section 6.01. Acceptance of Trusts and Duties. The Owner
-------------------------------------
Trustee accepts the trusts hereby created and agrees to perform
its duties hereunder with respect to such trusts but only upon
the terms of this Owner Trust Agreement. The Owner Trustee 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 Owner Trust
Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct,
negligence or bad faith or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 6.03
expressly made by the Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) No provision of this Owner Trust Agreement or any Basic
Document shall require the Owner Trustee 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 Owner Trustee 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;
(b) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(c) The Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Owner 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, or the
Certificates, other than the certificate of authentication on the
Certificates, if executed by the Owner Trustee and the Owner
Trustee 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;
(d) The execution, delivery, authentication and performance by
it of this Owner 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;
(e) The Owner Trustee shall not be liable for the default or
misconduct of the Depositor, Indenture Trustee or the Servicer
under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Owner 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 Administrator under the
Administration Agreement; and
18
(f) The Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it or duties imposed by
this Owner Trust Agreement, or to institute, conduct or defend
any litigation under this Owner Trust Agreement or otherwise or
in relation to this Owner Trust Agreement or any Basic Document,
at the request, order or direction of the Certificateholders,
unless the Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Owner Trust
Agreement or in any Basic Document shall not be construed as a
duty, and the Owner Trustee shall not be answerable for other
than its negligence, bad faith or willful misconduct in the
performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall
-------------------------
furnish to the Securityholders 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 Trust under the Basic
Documents.
Section 6.03. Representations and Warranties. The Owner Trustee
-------------------------------
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 Owner
Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Owner Trust Agreement, and
this Owner Trust Agreement will be executed and delivered by one
of its officers who is duly authorized to execute and deliver
this Owner Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Owner
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 Owner Trustee 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 Owner Trust Agreement, assuming due authorization,
execution and delivery by the Depositor, constitutes a valid,
legal and binding obligation of the Owner Trustee, 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 Owner Trustee 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
19
condition (financial or other) or operations
of the Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder;
and
(f) No litigation is pending or, to the best of the Owner
Trustee's knowledge, threatened against the Owner Trustee which
would prohibit its entering into this Owner Trust Agreement or
performing its obligations under this Owner Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution,
request, consent, order, certificate, report, opinion, bond, or
other document or paper believed by it to be genuine and believed
by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board
of directors or other governing body of any corporate 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 Owner Trustee 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 Owner
Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and
in the performance of its duties and obligations under this Owner
Trust Agreement or the Basic Documents, the Owner Trustee (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
Owner Trustee 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 Owner Trustee with reasonable care, and (ii)
may consult with counsel, accountants and other skilled persons
to be selected with reasonable care and employed by it at the
expense of the Trust. The Owner Trustee 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.
Section 6.05. Not Acting in Individual Capacity. Except as
-------------------------------------
provided in this Article VI, in accepting the trusts hereby
created Wilmington Trust Company acts solely as Owner Trustee
hereunder and not in its individual capacity, and all Persons
having any claim against the Owner Trustee by reason of the
transactions contemplated by this Owner Trust Agreement or any
Basic Document shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or
---------------------------------------------------
Related Documents. The recitals contained herein and in the
------------------
Certificates (other than the signatures of the Owner Trustee on
the Certificates) shall not be taken as the statements of the
Owner Trustee, and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Owner
Trust Agreement, of any Basic Document or of the Certificates
(other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The
Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Owner Trust
20
Estate or its ability to generate the payments to be distributed
to the Certificateholders under this Owner Trust Agreement or the
Noteholders under the Indenture, including, the compliance by the
Depositor 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. Owner Trustee May Own the Certificates and the
---------------------------------------------------
Notes. The Owner Trustee in its individual or any other capacity
-----
may become the owner or pledgee of the Certificates or the 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.
21
ARTICLE VII
Compensation of Owner Trustee
-----------------------------
Section 7.01. Owner Trustee's Fees and Expenses. The Owner
-------------------------------------
Trustee shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date
hereof (the "Owner Trustee Fee") from the Seller, and the Owner
Trustee shall be reimbursed 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 which shall be payable by the Seller.
Section 7.02. Indemnification. The Seller, the Depositor and
---------------
the Trust (on a joint and several basis) shall indemnify, defend
and hold harmless the Owner Trustee, both as Owner Trustee and in
its individual capacity, and its 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 the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this
Owner Trust Agreement, the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee hereunder, provided, that:
(i) the Seller, the Depositor, and the Trust shall not be liable
for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from the Owner Trustee's
willful misconduct, gross negligence or bad faith or as a result
of any inaccuracy of a representation or warranty 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 Seller, the Depositor, and the Trust written
notice thereof promptly after the Indemnified Party shall have
actual knowledge thereof;
(iii) while maintaining control over its own defense, the Seller
shall consult with the Indemnified Party in preparing such
defense; and
(iv) notwithstanding anything in this Owner Trust Agreement to
the contrary, the Seller, the Depositor, and the Trust shall not
be liable for settlement of any claim by an Indemnified Party
entered into without the prior consent of the Seller, the
Depositor, or the Trust, as applicable, which consent shall not
be unreasonably withheld.
22
The indemnities contained in this Section shall survive the
resignation or removal of the Owner Trustee or the termination of
this Owner 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 choice of legal counsel, if
other than the legal counsel retained by the Owner Trustee in
connection with the execution and delivery of this Owner Trust
Agreement, shall be subject to the approval of the Seller, which
approval shall not be unreasonably withheld. In addition, upon
written notice to the Owner Trustee and with the consent of the
Owner Trustee which consent shall not be unreasonably withheld,
the Seller has the right to assume the defense of any claim,
action or proceeding against the Owner Trustee.
23
ARTICLE VIII
Termination of Owner Trust Agreement
------------------------------------
Section 8.01. Termination of Owner Trust Agreement.
------------------------------------
(a) The Trust shall dissolve upon the earlier 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 Owner Trust Agreement or (ii) the Final Maturity Date.
The bankruptcy, liquidation, dissolution, death or incapacity of
a Certificateholder shall not (x) operate to terminate this Owner
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) Neither the Depositor nor any Certificateholder shall be
entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the
Payment Date upon which the Certificateholders shall surrender
its Certificate to the Certificate Paying Agent for payment of
the final distribution and cancellation, shall be given by the
Certificate Paying Agent by letter to the Certificateholders
mailed within five Business Days of receipt of notice of such
dissolution from the Owner 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 the
Certificateholders. Upon presentation and surrender of the
Certificates, the Certificate Paying Agent shall cause to be
distributed to the Certificateholders amounts distributable on
such Payment Date pursuant to Section 5.01.
In the event that a Certificateholder shall not surrender
its Certificate 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 such
Certificateholder to surrender the Certificate 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
such Certificate was to have been made pursuant to Section 5.01,
such Certificate 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
such Certificate, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Owner
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 Servicer.
24
(d) Upon the completion of the winding up of the Trust and
notification to the Owner Trustee from the Servicer, who shall be
responsible for liquidating the Trust, as to the satisfaction of
the obligations of the Trust, the Owner Trustee shall cause the
Certificates of Trust to be canceled 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,
upon which filing the Trust shall terminate.
25
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) long term debt obligations
with a rating of at least A (or the equivalent) by Standard &
Poor's and/or Moody's. 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 and the Indenture Trustee. Upon receiving such notice
of resignation, the Indenture Trustee 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 or any
Certificateholder 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 Indenture
Trustee, 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
Indenture Trustee shall remove the Owner Trustee. If the
Indenture Trustee shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Indenture
Trustee shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and
one copy to the successor Owner Trustee, and shall pay all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the
provisions of this Section shall not become effective until
acceptance of appointment by the successor Owner Trustee pursuant
to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee.
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 Owner Trust
26
Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
under this Owner Trust Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee
shall deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Owner 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 Indenture Trustee shall mail
notice thereof to all Certificateholders, the Indenture Trustee,
the Noteholders and the Rating Agencies. If the Indenture
Trustee shall fail to mail such notice within 10 days after
acceptance of such appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Indenture Trustee.
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 Owner 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 Owner Trust Estate 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 Owner 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:
27
(a) All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
(including the holding of title to the 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 Owner Trust Agreement shall be
personally liable by reason of any act or omission of any other
trustee under this Owner 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 Owner 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 Owner Trust Agreement, specifically including
every provision of this Owner 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 Owner 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.
28
ARTICLE X
Miscellaneous
-------------
Section 10.01. Amendments.
----------
(a) This Owner Trust Agreement may be amended from time to time
by the parties hereto as specified in this Section 10.01,
provided that any amendment, except as provided in subparagraph
(e) below, be accompanied by an Opinion of Counsel, to the Owner
Trustee to the effect that such amendment (i) complies with the
provisions of this Section and (ii) will not cause the Trust to
be subject to an entity level tax.
(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), it shall not be necessary
to obtain the consent of the Certificateholders, but the Owner
Trustee 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 of the Notes and
(B) an Opinion of Counsel to the effect that such action will not
adversely affect in any material respect the interests of any
Certificateholder shall be obtained.
(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 (i.e. technical in nature), it shall not be necessary
to obtain the consent of any Securityholder, 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 Securityholder.
(d) If the purpose of the amendment is to add or eliminate or
change any provision of the Owner Trust Agreement other than as
contemplated in (b) and (c) above, the amendment shall require
(A) an Opinion of Counsel to the effect that such action will not
adversely affect in any material respect the interests of any
Securityholder and (B) 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 of the Notes or (b)
the consent of the Certificateholders and the Indenture Trustee;
provided, however, that no such amendment shall reduce in any
manner the amount of, or delay the timing of, payments received
that are required to be distributed on the Certificates without
the consent of the Certificateholders.
(e) If the purpose of the amendment is to provide for the
holding of the Certificates in book-entry form, it shall require
the consent of the Certificateholders; 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
Securityholder, but the Owner Trustee shall be furnished with (A)
an Opinion of Counsel to the effect that such action will not
adversely affect in any material respect the interests of any
Securityholder and (B) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the
rating then assigned to of the Notes.
29
(g) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of
the substance of such amendment or consent to the
Certificateholders, the Indenture Trustee and each of the Rating
Agencies. It shall not be necessary for the consent of the
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 consent of the Certificateholders
provided for in this Owner Trust Agreement or in any other Basic
Document) and of evidencing the authorization of the execution
thereof by the 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 Owner
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.
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. The Certificateholder shall be entitled to
receive distributions with respect to their undivided beneficial
interest therein only in accordance with Articles V and VII. No
transfer, by operation of law or otherwise, of any right, title
or interest of the Certificateholders to and in their beneficial
interest in the Owner Trust Estate shall operate to terminate
this Owner 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. The provisions
---------------------------------
of this Owner Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders, and, to the
extent expressly provided herein, the Seller, the Indenture
Trustee and the Noteholders, and nothing in this Owner Trust
Agreement, 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 Owner
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, if to the Owner Trustee, addressed to
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, with a copy to U.S. Bank
National Association, Structured Finance, 000 Xxxx Xxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000; if to the Depositor, addressed to
Credit Suisse First Boston Mortgage Acceptance Corp., 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; if to the
Rating Agencies, addressed to Xxxxx'x Investors Service, Inc., 99
Church
00
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and to
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
00 Xxxxx Xxxxxx, Xxx Xxxx, XX 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 Certificateholder as shown in the
Certificate Register. Any notice so mailed within the time
prescribed in this Owner Trust Agreement shall be conclusively
presumed to have been duly given, whether or not such
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 Owner 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 Owner 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 the Certificateholders
and their respective 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 Owner Trust Agreement and each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that they
will not, prior to the day that is one year and one day after the
date this Owner Trust Agreement terminates, 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 under the Certificates, the
Notes, this Owner Trust Agreement or any of the Basic Documents.
Section 10.09. No Recourse. Each Certificateholder by accepting
-----------
a Certificate acknowledges that the Certificates represent
beneficial interests in the Trust only and do not represent
interests in or obligations of the Depositor, the Seller, the
Owner Trustee, the Indenture Trustee or any Affiliate thereof and
no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this
Owner Trust Agreement, the Certificates or the Basic Documents.
31
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 OWNER 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 Owner Trust Agreement
-----------
constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior
agreements and understanding pertaining thereto.
Section 10.13. Intention of the Parties. (a) It is the express
--------------------------
intent of the parties hereto that the conveyance by the Depositor
to the Trust pursuant to this Owner Trust Agreement of the Owner
Trust Estate be, and be construed as, an absolute sale and
assignment by the Depositor to the Trust. Further, it is not
intended that the conveyance be deemed to be the grant of a
security interest in the Loans by the Depositor to the Trust to
secure a debt or other obligation. However, in the event that
the Loans are held to be property of the Depositor, or if for any
reason this Owner Trust Agreement is held or deemed to create a
security interest in the Loans, then (i) this Owner Trust
Agreement shall be a security agreement within the meaning of
Article 9 of the UCC; (ii) the conveyances provided for in
Section 3.01 shall be deemed to be a grant by the Depositor to
the Trust of, and the Depositor hereby grants to the Trust, a
security interest in all of the Depositor's right, title and
interest, whether now owned or hereafter acquired, in and to
(A) the Owner Trust Estate; (B) all accounts, chattel paper,
deposit accounts, documents, general intangibles, goods,
instruments, investment property, letter-of-credit rights,
letters of credit, money, and oil, gas, and other minerals,
consisting of, arising from, or relating to, any of the
foregoing; and (C) all proceeds of any of the foregoing; (iii)
the possession or control by the Trust or any other agent of the
Trust of any of the foregoing property shall be deemed to be
possession or control by the secured party, or possession or
control by a purchaser, for purposes of perfecting the security
interest pursuant to the UCC (including, without limitation,
Sections 9-104, 9-106, 9-313 or 9-314 thereof); and (iv)
notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for, the
Trust, as applicable, for the purpose of perfecting such security
interest under applicable law.
(b) The parties hereto, shall, to the extent consistent with
this Owner Trust Agreement, take such reasonable actions as may
be necessary to ensure that, if this Owner Trust Agreement were
deemed to create a security interest in the Loans, such security
interest would be deemed to be a perfected security interest of
first priority.
32
IN WITNESS WHEREOF, the Depositor 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.
CREDIT SUISSE FIRST BOSTON MORTGAGE
ACCEPTANCE CORP., as Depositor
By:____________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:____________________________
Name:
Title:
Acknowledged and Agreed:
US BANK NATIONAL ASSOCIATION,
as Certificate Registrar and Certificate
Paying Agent
By:_______________________
Name:
Title:
DLJ MORTGAGE CAPITAL INC.,
as Seller
By:_______________________
Name:
Title:
EXHIBIT A
---------
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE NOTES AS DESCRIBED IN THE OWNER TRUST AGREEMENT DATED AS OF
FEBRUARY 12, 2003, BETWEEN CREDIT SUISSE FIRST BOSTON MORTGAGE
ACCEPTANCE CORP. AND WILMINGTON TRUST COMPANY (THE "AGREEMENT").
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT UPON
SATISFACTION OF THE CONDITIONS IN SECTION 3.05 OF THE AGREEMENT.
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 STATE LAWS OR IS
SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER SUCH STATE LAWS AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS
THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (i) A
REPRESENTATION LETTER IN THE FORM OF EXHIBIT F TO THE AGREEMENT
FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO
THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY
RESPONSIBILITY REQUIREMENTS OF 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"), ANY
PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN
OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE
DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE
THIS CERTIFICATE (COLLECTIVELY A "PLAN INVESTOR"), OR (ii) IF
THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PLAN INVESTOR, AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM
AND SUBSTANCE SATISFACTORY TO THE DEPOSITOR, THE OWNER TRUSTEE,
THE SERVICER AND THE CERTIFICATE REGISTRAR, OR A CERTIFICATION IN
THE FORM OF EXHIBIT F TO THE AGREEMENT, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE 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) AND
WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
A-1
THE TRANSFEREE OF THIS CERTIFICATE SHALL BE SUBJECT TO
UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE
REGISTRAR SHALL RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR
CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF THE SELLER, THE DEPOSITOR, THE SERVICER, THE
INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES.
A-2
Certificate No. ___
Cut-off Date: Assumed Final Payment Date:
February 1, 2003 [____________________]
First Payment Date: Certificate Percentage Interest
March 25, 2003 of this Certificate: 100%
Xxxxx Whole Loan Home Equity Trust 2003-A,
Home Equity Loan-Backed Certificate, Series 2003-A, Class CE
evidencing a 100% beneficial ownership interest in the Trust, the
property of which consists primarily of the Loans, created by
CREDIT SUISSE FIRST BOSTON MORTGAGE ACCEPTANCE CORP. (hereinafter
called the "Depositor" which term includes any successor entity
under the Agreement referred to below).
This Certificate is payable solely from the assets of
the Owner Trust Estate, and does not represent an obligation of
or interest in the Depositor, the Seller, the Servicer, the
Indenture Trustee, the Owner Trustee or any of their affiliates.
Neither this Certificate nor any of the Loans is guaranteed or
insured by any governmental agency or instrumentality or by the
Depositor, the Seller, the Servicer, the Indenture Trustee, the
Owner Trustee or any of their affiliates. None of the Depositor,
the Seller, the Servicer, the Indenture Trustee, the Owner
Trustee, or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that [NAME OF CERTIFICATEHOLDER] is the
registered owner of the Certificate Percentage Interest evidenced
by this Certificate (as set forth on the face hereof) in certain
distributions with respect to the Owner Trust Estate, consisting
primarily of the Loans conveyed by the Depositor. The Trust (as
defined herein) was created pursuant to a Owner Trust Agreement
dated as specified above (as amended and supplemented from time
to time, the "Agreement") between the Depositor and Wilmington
Trust Company, as owner trustee (the "Owner Trustee," which term
includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement
the holder of this Certificate by virtue of the acceptance hereof
assents and by which the such holder is bound.
Pursuant to the terms of the Agreement, a distribution
will be made on the 25th day of each month or, if such 25th day
is not a Business Day, the Business Day immediately following
(the "Payment Date"), commencing on the first Payment Date
specified above, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately
preceding such last day)
A-3
of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount
equal to the pro rata portion evidenced by this Certificate
(based on the Certificate Percentage Interest stated on the face
hereof) of the Certificate Distribution Amount required to be
distributed to the registered holder of this Certificate on such
Payment Date. Distributions on this Certificate will be made as
provided in the Agreement by the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholders 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 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
in the City and State of New York.
No transfer of this Certificate will be made unless
such transfer is exempt from the registration requirements of the
Securities Act of 1933, as amended, and any applicable state
securities laws or is made in accordance with said Act and laws.
In the event that such a transfer is to be made, (i) the
Certificate Registrar or the Depositor may require an opinion of
counsel acceptable to and in form and substance satisfactory to
the Certificate Registrar and the Depositor that such transfer is
exempt (describing the applicable exemption and the basis
therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of
any applicable statute of any state and (ii) the transferee shall
execute an investment letter in the form described in the
Agreement and (iii) the Certificate Registrar shall require the
transferee to execute an investment letter in the form described
by the Agreement, which investment letter shall not be at the
expense of the Trust, the Owner Trustee, the Certificate
Registrar or the Depositor. If a Certificateholder desires to
effect such transfer, it shall, and does hereby agree to,
indemnify the Trust, the Owner Trustee, the Depositor, the
Servicer and the Certificate Registrar 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. In connection with
any such transfer, the Certificate Registrar (unless otherwise
directed by the Depositor) will also require either (i) a
representation letter, in the form of Exhibit F to the Agreement,
stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction restrictions or the
fiduciary responsibility requirements of ERISA or Section 4975 of
the Code ("Plan"), any person acting, directly or indirectly, on
behalf of any such plan or any person using the "plan assets,"
within the meaning of the Department of Labor regulations at 29
C.F.R.ss.2510.3-101, to effect such acquisition (collectively, a
"Plan Investor") or (ii) if such transferee is a Plan Investor, an
opinion of counsel acceptable to and in form and substance
satisfactory to the Depositor, the Owner Trustee, the Servicer
and the Certificate Registrar to the effect that the purchase or
holding of this Certificate 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) and will not subject the
Depositor, the Owner Trustee, the Servicer or the Certificate
Registrar to any obligation or liability in addition to those
undertaken in the Agreement.
This Certificate is one of a duly authorized
Certificate designated as Xxxxx Whole Loan Home Equity Trust
2003-A, Home Equity Loan-Backed Certificates, Class CE, of the
A-4
Series specified hereon. All terms used in this Certificate
which are defined in the Agreement shall have the meanings
assigned to them in the Agreement.
The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds on
deposit in the Certificate Distribution 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 Agreement or, except
as expressly provided in the Agreement, subject to any liability
under the Agreement.
The Certificateholder 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 February 12, 2003, between Xxxxx Whole
Loan Home Equity Trust 2003-A (the "Trust") and US Bank National
Association, as Indenture Trustee (the "Indenture").
The Certificateholder, by its acceptance of this
Certificate, covenants and agrees that such Certificateholder
will not, prior to the day one year and one day after the date
this Owner Trust Agreement terminates, institute against the
Depositor or the Trust, 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 Agreement or any of the Basic
Documents.
The 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 Agreement and will
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
Securityholder, 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 of the Notes. 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 Securityholder, 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 Securityholder.
If the purpose of the amendment is to add or eliminate or change
any provision of the 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 of the Notes or (b) the consent of the
Certificateholders 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 the Certificates without the consent of the
Certificateholders, or (ii) reduce the aforesaid Certificate
Percentage Interest required to consent to any such amendment
without the consent of 100% of the Certificate Percentage
Interest.
A-5
As provided in the 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 in the City of
and State of New York, accompanied by a written instrument of
transfer in form satisfactory to the Certificate Registrar duly
executed by the registered holder of this Certificate or the such
holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of authorized denominations evidencing
the same aggregate Certificate Percentage Interest will be issued
to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Indenture Trustee.
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.
This Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
The obligations created by the Agreement in respect of
the Certificates and the Trust created thereby shall terminate
upon the earlier 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 the Agreement or
(ii) the Final Maturity Date.
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 be entitled to any benefit under the Agreement or be
valid for any purpose.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the
Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
XXXXX WHOLE LOAN HOME EQUITY TRUST
2003-A
by WILMINGTON TRUST COMPANY, not
in its individual capacity
but solely as Owner Trustee
Dated: February 12, 2003 _______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one the Certificates referred to in the within mentioned
Agreement.
WILMINGTON TRUST COMPANY,
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
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 of the registered owner as it appears on the face of the
within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements
include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
A-8
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-9
EXHIBIT B
---------
FORM OF CERTIFICATE OF TRUST
OF
[------------------------------------]
THIS Certificate of Trust of
[___________________________] (the "Trust"), is being duly
executed and filed by the undersigned, as trustee, to form a
statutory trust under the Delaware Statutory Trust Act (12 Del.
-----
C. ss.3801 et seq.) (the "Act").
-- ---
1. Name. The name of the statutory trust formed
----
hereby is [______________________________________].
2. Delaware Trustee. The name and business address
----------------
of the trustee of the Trust in the State of Delaware is
[___________________________________________], Attention:
[------------------------].
3. Effective Date. This Certificate of Trust shall
--------------
be effective [________________________].
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate of Trust in accordance with Section 3811(a) of
the Act.
[_______________________________],
as trustee
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, pursuant to Section 3.05 of the
Agreement, warrants and represents to, and covenants with the
Owner Trustee, the Depositor and the Indenture Trustee (as such
terms are defined in the Owner Trust Agreement (the "Agreement"),
dated as of February 12, 2003 between Credit Suisse First Boston
Mortgage Acceptance Corp., as Depositor, and Wilmington Trust
Company, as Owner 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.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.
C-1
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 represents that:
(i) either (a) or (b) is satisfied, as marked below:
____ a. The Buyer is not any employee
benefit or other 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"), 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.ss.2510.3-101; or
____ b. The Buyer has provided 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 Buyer 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) 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 Owner Trust Agreement, which opinion of counsel shall
not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; and
C-2
(ii) the Buyer 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 3.
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.
____ QIB. An entity, all of the equity owners of which are
---
"qualified institutional buyers."
____ 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.
_____________
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
____ 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 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
C-5
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 Rule 144A Securities 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.
____ ____ 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
---------
FORM OF INVESTOR REPRESENTATION LETTER
________, 20_
Credit Suisse First Boston
Mortgage Acceptance Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
XX Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
Re: Xxxxx Whole Loan Home Equity Trust 2003-A, Home Equity
Loan-Backed
Certificates, Series 2003-A., Class CE
-------------------------------------------------------
Ladies and Gentlemen:
_____________ (the "Purchaser") intends to purchase
from_________(the "Seller") _____% Certificate Percentage
Interest of the Xxxxx Whole Loan Home Equity Trust 2003-A, Home
Equity Loan-Backed Certificates, Series 2003-A, Class CE (the
"Certificate"), issued pursuant to the Owner Trust Agreement (the
"Owner Trust Agreement"), dated as of February 12, 2003 between
Credit Suisse First Boston Mortgage Acceptance Corp. (the
"Depositor") and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"), as acknowledged and agreed by US Bank National
Association, as Certificate Registrar. All terms used herein and
not otherwise defined shall have the meanings set forth in the
Owner Trust Agreement. The Purchaser hereby certifies,
represents and warrants to, and covenants with, the Depositor and
the Certificate Registrar that:
1. The Purchaser understands that (a) the
Certificate has not been and will not be registered or
qualified under the Securities Act of 1933, as amended
(the "Act") or any state securities law, (b) the
Depositor is not required to so register or qualify the
Certificate, (c) the Certificate may be resold only if
registered and qualified pursuant to the provisions of
the Act or any state securities law, or if an exemption
from such registration and qualification is available,
(d) the Owner
D-1
Trust Agreement contains restrictions
regarding the transfer of the Certificate and (e) the
Certificate will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificate for
its own account for investment only and not with a view
to or for sale in connection with any distribution
thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial,
sophisticated institutional investor having such
knowledge and experience in financial and business
matters, and, in particular, in such matters related to
securities similar to the Certificate, such that it is
capable of evaluating the merits and risks of
investment in the Certificate, (b) able to bear the
economic risks of such an investment and (c) an
"accredited investor" within the meaning of Rule 501
(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has
had an opportunity to review (a) a copy of the Owner
Trust Agreement and (b) such other information
concerning the Certificate, the Loans and the Depositor
as has been requested by the Purchaser from the
Depositor or the Seller and is relevant to the
Purchaser's decision to purchase the Certificate. The
Purchaser has had any questions arising from such
review answered by the Depositor or the Seller to the
satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to (a)
offer, pledge, sell, dispose of or otherwise transfer
any Certificate, any interest in the Certificates or
any other similar security to any person in any manner,
(b) solicit any offer to buy or to accept a pledge,
disposition of other transfer of the Certificates, any
interest in the Certificates or any other similar
security from any person in any manner, (c) otherwise
approach or negotiate with respect to any Certificate,
any interest in any Certificate or any other similar
security with any person in any manner, (d) make any
general solicitation by means of general advertising or
in any other manner or (e) take any other action, that
(as to any of (a) through (e) above) would constitute a
distribution of the Certificates under the Act, that
would render the disposition of the Certificates a
violation of Section 5 of the Act or any state
securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not
sell or otherwise transfer the Certificates, except in
compliance with the provisions of the Owner Trust
Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
____ a. The Purchaser is not any employee benefit
or other 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"), a Person acting, directly or indirectly, on behalf
of any such plan or any Person acquiring the
D-2
Certificate
with "plan assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R.
ss.2510.3-101; or
____ b. The Purchaser has provided 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
the Certificate by or on behalf of the Purchaser 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) 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 Owner 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 Purchaser 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 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
________________________________
By:_________________________________
Name:_______________________________
Title:______________________________
D-3
EXHIBIT E
---------
FORM OF TRANSFEROR REPRESENTATION LETTER
_________, 20__
Credit Suisse First Boston
Mortgage Acceptance Corp.
00 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
XX Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
Re: Xxxxx Whole Loan Home Equity Trust 2003-A, Home Equity
Loan-Backed
Certificates, Series 2003-A, Class CE
--------------------------------------------------------
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase
from ________ (the "Seller") _____% Certificate Percentage
Interest of the Xxxxx Whole Loan Home Equity Trust 2003-A,
Home-Equity Loan-Backed Certificates, Series 2003-A, Class CE
(the "Certificate"), issued pursuant to the Owner Trust Agreement
(the "Owner Trust Agreement"), dated as of February 12, 2003
between Credit Suisse First Boston Mortgage Acceptance Corp., as
depositor (the "Depositor") and Wilmington Trust Company, as
owner trustee (the "Owner Trustee"), as acknowledged and agreed
by US Bank National Association, as certificate registrar (the
"Certificate Registrar"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Owner Trust
Agreement. The Seller hereby certifies, represents and warrants
to, and covenants with, the Depositor and the Certificate
Registrar that:
Neither the Seller nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred
the Certificate, any interest in the 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 Certificate, any interest in the Certificate or
any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to the
Certificate, any interest in the Certificate or any other similar
security with any
E-1
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
Certificate under the Securities Act of 1933 (the "Act"), that
would render the disposition of the Certificate a violation of
Section 5 of the Act or any state securities law, or that would
require registration or qualification pursuant thereto. The
Seller will not act, in any manner set forth in the foregoing
sentence with respect to the Certificate. The Seller has not and
will not sell or otherwise transfer any of the Certificate,
except in compliance with the provisions of the Owner Trust
Agreement.
Very truly yours,
____________________________________
By:_________________________________
Name:_______________________________
Title:______________________________
E-2
EXHIBIT F
---------
FORM OF ERISA REPRESENTATION LETTER
____________, 20__
Credit Suisse First Boston
Mortgage Acceptance Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Union Bank and Trust Company
c/x Xxxxx Home Equity Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
XX Bank National Association,
as Certificate Registrar
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: Xxxxx Whole Loan Home Equity Trust 2003-A, Home Equity
Loan-Backed
Certificates, Series 2003-A, Class CE
-------------------------------------------------------------------
Dear Sirs:
____________________________ (the "Transferee") intends
to acquire from ______________(the "Transferor") $_______ of
Xxxxx Whole Loan Home Equity Trust 2003-A, Home Equity
Loan-Backed Certificates, Series 2003-A, Class CE (the
"Certificates"), issued pursuant to a Owner Trust Agreement (the
"Owner Trust Agreement") dated February 12, 2003 among Credit
Suisse First Boston Mortgage Acceptance Corp., as depositor (the
"Depositor") and Wilmington Trust Company, as trustee (the "Owner
Trustee"). Capitalized terms used herein and not otherwise
defined shall have the meanings assigned thereto in the Owner
Trust Agreement.
The Transferee hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer that the
Certificate (i) is not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of
section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or other retirement arrangement,
including individual retirement accounts and
F-1
annuities, Xxxxx
plans and bank collective investment funds and insurance company
general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of
ERISA or Section 4975 of the Internal Revenue Code of 1986 (the
"Code") (any of the foregoing, a "Plan"), (ii) are not being
acquired with "plan assets" of a Plan within the meaning of the
Department of Labor ("DOL") regulation, 29 X.X.X.xx. 2510.3-101,
and (iii) will not be transferred to any entity that is deemed to
be investing in plan assets within the meaning of the DOL
regulation, 29 C.F.R.ss.2510.3-101; and
(2) 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 herein.
Very truly yours,
____________________________________
By:_________________________________
Name:
Title:______________________________
F-2
EXHIBIT G
---------
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant
to Section 3.05 of the Owner Trust Agreement dated as of February
12, 2003 (the "Owner Trust Agreement"), between Credit Suisse
First Boston Mortgage Acceptance Corp., as depositor (the
"Depositor"), and Wilmington Trust Company, as owner trustee, in
connection with the acquisition of, transfer to or possession by
the undersigned, whether as beneficial owner (the "Beneficial
Owner"), or nominee on behalf of the Beneficial Owner of Xxxxx
Whole Loan Home Equity Trust 2003-A, Home Equity Loan-Backed
Certificates, Series 2003-A, Class CE (the "Certificates").
Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Owner 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
Certificates 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;
2.. The Beneficial Owner's office address and
place of incorporation (if applicable) is
G-1
_________________________
_________________________; 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.
G-2
EXHIBIT H
---------
FORM OF REPRESENTATION LETTER
____________________, _____
Credit Suisse First Boston
Mortgage Acceptance Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Union Bank and Trust Company
c/x Xxxxx Home Equity Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
XX Bank National Association,
as Certificate Registrar
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: Xxxxx Whole Loan Home Equity Trust 2003-A, Home Equity
Loan-Backed
Certificates, Series 2003-A, Class CE
-------------------------------------------------------------------
Dear Sirs:
______________________________________________________ (the
"Transferee") intends to acquire from
____________________________________________ (the "Transferor") a
_____ % Percentage Interest of Xxxxx Whole Loan Home Equity Trust
2003-A, Home Equity Loan-Backed Certificates, Series 2003-A,
Class CE (the "Certificates"), issued pursuant to an owner trust
agreement dated as of February 12, 2003 (the "Owner Trust
Agreement") between Credit Suisse First Boston Mortgage
Acceptance Corp., as depositor (the "Depositor"), and Wilmington
Trust Company, as owner trustee (the "Owner Trustee").
Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Owner Trust
Agreement.
The Transferee hereby certifies, represents and warrants to,
and covenants with, the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer that:
(1) the Transferee is acquiring the Certificate for
its own behalf and is not acting as agent or custodian for
any other person or entity in connection with such
acquisition; and
H-1
(2) the Transferee is not a partnership, grantor trust
or S corporation for federal income tax purposes, or, if the
Transferee is a partnership, grantor trust or S corporation
for federal income tax purposes, the Certificate is not more
than 50% of the assets of the partnership, grantor trust or
S corporation.
Very truly yours,
____________________________
By:______________________________
Name:
Title: