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EXHIBIT 4.4
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DEPOSIT TRUST AGREEMENT
AMONG
UNION PLANTERS MORTGAGE FINANCE CORP,
AS DEPOSITOR,
__________________________,
AS OWNER TRUSTEE
____________________________________________
AS TRUST PAYING AGENT AND BOND ADMINISTRATOR,
AND
____________________________________________,
AS SERVICER
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UNION PLANTERS MORTGAGE FINANCE TRUST 199__-__
COLLATERAL MORTGAGE BONDS
SERIES 199__-__
DATED AS OF ____________ 1, 199__
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................................ 1
Section 1.1. Capitalized Terms................................. 1
Section 1.2. Other Definitional Provisions..................... 7
ARTICLE II ORGANIZATION............................................... 8
Section 2.1. Name.............................................. 8
Section 2.2. Office............................................ 9
Section 2.3. Purposes and Powers............................... 9
Section 2.4. Appointment of Owner Trustee......................10
Section 2.5. Initial Capital Contribution of Owner
Trust Estate..............................10
Section 2.6. Declaration of Trust..............................10
Section 2.7. Liability of the Holders..........................12
Section 2.8. Title to Trust Property...........................12
Section 2.9. Situs of Trust....................................12
Section 2.10 Representations and Warranties of the
Company; Covenant of the Company..........13
Section 2.11 Federal Income Tax Provisions.....................16
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.....................20
Section 3.1. Initial Ownership.................................20
Section 3.2. The Certificates..................................20
Section 3.3. Execution, Authentication and Delivery of
Trust Certificates........................21
Section 3.4. Registration of Transfer and Exchange of
Trust Certificates........................21
Section 3.5. Mutilated, Destroyed, Lost or Stolen
Certificates..............................23
Section 3.6. Persons Deemed Owners.............................24
Section 3.7. Access to List of Holders' Names and Addresses....24
Section 3.8. Maintenance of Office or Agency...................25
Section 3.9. Appointment of Trust Paying Agent.................25
Section 3.10 Restrictions on Transfer of Certificates..........27
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................29
Section 4.1. Prior Notice to Holders with Respect to
Certain Matters...........................29
Section 4.2. Action by Holders with Respect to Bankruptcy......32
Section 4.3. Restrictions on Holders' Power....................32
Section 4.4. Majority Control..................................32
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.................33
Section 5.1. Establishment of Certificate Distribution
Account...................................33
Section 5.2. Application of Trust Funds........................34
Section 5.3. Method of Payment.................................35
Section 5.4. Segregation of Moneys; No Interest................36
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ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................36
Section 6.1. General Authority.................................36
Section 6.2. General Duties....................................37
Section 6.3. Action upon Instruction...........................37
Section 6.4. No Duties Except as Specified in this
Agreement, the Basic Documents or Any
Instructions..............................39
Section 6.5. No Action Except Under Specified Documents
or Instructions...........................40
Section 6.6. Restrictions......................................40
ARTICLE VII CONCERNING THE OWNER TRUSTEE...............................40
Section 7.1. Acceptance of Trusts and Duties...................40
Section 7.2. Furnishing of Documents...........................42
Section 7.3. Representations and Warranties....................42
Section 7.4. Reliance; Advice of Counsel.......................44
Section 7.5. Not Acting in Individual Capacity.................44
Section 7.6. Owner Trustee Not Liable for Certificates
or Mortgage Loans.........................45
Section 7.7. Owner Trustee May Own Certificates and Bonds......46
Section 7.8. Licenses..........................................46
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE..............................46
Section 8.1. Owner Trustee's Fees and Expenses.................46
Section 8.2. Indemnification...................................47
Section 8.3. Payments to the Owner Trustee.....................49
Section 8.4. Servicer Liability................................49
ARTICLE IX TERMINATION OF TRUST AGREEMENT.............................49
Section 9.1. Termination of Trust Agreement....................49
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES...................................................51
Section 10.1. Eligibility Requirements for Owner Trustee........51
Section 10.2. Resignation or Removal of Owner Trustee...........51
Section 10.3. Successor Owner Trustee...........................53
Section 10.4. Merger or Consolidation of Owner Trustee..........54
Section 10.5. Appointment of Co-Trustee or Separate Trustee.....55
ARTICLE XI CONTRIBUTION OF MORTGAGE LOANS............................57
Section 11.1. Agreement to Contribute and Convey................57
Section 11.2. Conveyance of Mortgage Loans......................58
Section 11.3. Assignment of Related Rights and Remedies.........59
Section 11.4. Closing...........................................60
Section 11.5. Servicing.........................................61
Section 11.6. Grant of a Security Interest......................61
ARTICLE XII MANAGEMENT OF THE TRUST...................................63
Section 12.1. Powers and Duties of the Bond Administrator.......63
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Section 12.2. Compensation; Payment of Certain Expenses.......66
Section 12.3. Instruction of the Owner Trustee.................67
Section 12.4. Benefit of the Agreement.........................67
Section 12.5. Limitation of Responsibility of the Bond
Administrator............................68
Section 12.6. Termination of Bond Administrator................68
Section 12.7. Bankruptcy Matters...............................70
ARTICLE XIII MISCELLANEOUS............................................70
Section 13.1. Supplements and Amendments.......................70
Section 13.2. No Legal Title to Owner Trust Estate in
Holders..................................73
Section 13.3. Limitations on Rights of Others..................73
Section 13.4. Notices..........................................74
Section 13.5. Severability.....................................75
Section 13.6. Separate Counterparts............................75
Section 13.7. Successors and Assigns...........................75
Section 13.8. No Petition......................................75
Section 13.9. No Recourse......................................76
Section 13.10. Headings.........................................76
Section 13.11. GOVERNING LAW....................................76
Section 13.12. Grant of Certificateholder Rights to Bond
Insurer..................................77
Section 13.13. Third Party Beneficiary..........................77
Section 13.14. Suspension and Termination of Bond
Insurer's Rights.................................78
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DEPOSIT TRUST AGREEMENT
This DEPOSIT TRUST AGREEMENT, dated as of __________ 1, 199__,
among UNION PLANTERS MORTGAGE FINANCE CORP, a Delaware corporation, as Depositor
(the "Company"), __________________, a ___________________________, as Owner
Trustee (the "Owner Trustee") and ____________________________________________,
a __________________________, as Trust Paying Agent and Bond Administrator (in
each such capacity, the "Trust Paying Agent" or the "Bond Administrator"), and
_______________________________, as Servicer (the "Servicer"), is entered into
for the limited purposes set forth herein.
ARTICLE I
DEFINITIONS
Section 1.1. Capitalized Terms.
For all purposes of this Agreement, the following terms shall
have the meanings set forth below:
"ACCOUNTS" shall mean, collectively, the Collection Account
and the Bond Account.
"AGREEMENT" shall mean this Deposit Trust Agreement, as may be
amended and supplemented from time to time.
"ANNUAL TAX REPORTS" shall have the meaning assigned thereto
in Section 2.11(k).
"BASIC DOCUMENTS" shall mean this Agreement, the Servicing
Agreement, the Sales Agreement, [the Insurance Agreement,] and the Indenture.
"BOND ACCOUNT" shall have the meaning assigned thereto in the
Indenture.
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"BOND ADMINISTRATOR" shall mean ___________________, or any
successor thereto.
"BOND INSURER" shall mean _________________________.
"BOND INSURER DEFAULT" shall have the meaning assigned to such
term in the Indenture.
"BONDS" shall mean the Issuer's Collateralized Mortgage Bonds,
Series 199__-__.
"BUSINESS DAY" shall mean any day other than (i) a Saturday or
Sunday or (ii) a day that is either a legal holiday or a day on which banking
institutions in the State of New York, the State of Tennessee, the State of
Delaware, or the state in which the Trust Paying Agent's office from which
payments will be made to Certificateholders are authorized or obligated by law,
regulation or executive order to be closed.
"BUSINESS TRUST STATUTE" shall mean Chapter 38 of Title 12 of
I the Delaware Code, 12 Del. Code S 3801 et seq., as the same may be amended
from time to time.
"CAPITAL ACCOUNT" shall have the meaning assigned thereto in
Section 2.11(a).
"CERTIFICATE" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in the
form attached hereto as Exhibit A.
"CERTIFICATE DISTRIBUTION ACCOUNT" shall have the meaning
assigned to such term in Section 5.1.
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"CERTIFICATE OF TRUST" shall mean the Certificate of Trust in
the form of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4.
"CERTIFICATEHOLDER" or "HOLDER" shall mean a Person in whose
name a Certificate is registered.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended, and, where appropriate in context, Treasury Regulations promulgated
thereunder.
"COLLECTION ACCOUNT" shall have the meaning assigned thereto
in the Servicing Agreement.
"COMPANY" shall mean Union Planters Mortgage Finance Corp., a
Delaware corporation.
"CORPORATE TRUST OFFICE" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
_____________________________________________; or at such other address in the
State of Delaware as the Owner Trustee may designate by notice to the
Certificateholders and the Company, or the principal corporate trust office of
any successor Owner Trustee (the address (which shall be in the State of
Delaware) of which the successor owner trustee will notify the Certificateholder
and the Company).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
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"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"EXPENSES" shall have the meaning assigned to such term in
Section 8.2.
"HOLDER NONRECOURSE DEBT MINIMUM GAIN" shall have the meaning
set forth for "partner nonrecourse debt minimum gain" in Treasury Regulations
Section 1.704-2(i)(2). A Holder's share of Holder Nonrecourse Debt Minimum Gain
shall be determined in accordance with Treasury Regulations Section
1.704-2(i)(5).
"INDENTURE" shall mean the Indenture, dated as of ____________
1, 199___, by and between the Issuer and the Indenture Trustee.
"INDENTURE TRUSTEE" means ________________________, as
Indenture Trustee under the Indenture.
["INSURANCE AGREEMENT" means the Insurance Agreement, dated as
of ____________ 1, 199__, among ______________________, the Issuer,
_________________________, as Seller and Servicer, the
Company, and the Indenture Trustee.]
["INSURANCE POLICY" shall mean the policy issued by the Bond
Insurer for the benefit of the holders of the Bonds.]
"ISSUER" shall mean Union Planters Mortgage Finance Trust
199__-__, the Delaware business trust created pursuant to this Agreement.
"NON-U.S. PERSON" shall mean an individual, corporation,
partnership or other person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or
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organized in or under the laws of the United States or any political subdivision
thereof, an estate that is subject to U.S. federal income tax regardless of the
source of its income or a trust if (i) a court in the United States is able to
exercise primary supervision over the administration of the trust and (ii) one
or more United States fiduciaries have the authority to control all substantial
decisions of the trust.
"OWNER TRUST ESTATE" shall mean the Trust Estate (as defined
in the Indenture), including the contribution of $1 referred to in Section 2.5
hereof.
"OWNER TRUSTEE" shall mean _______________________, a
__________________________, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor owner trustee hereunder.
"PAYMENT DATE" shall mean the twenty-fifth day of each month
or, if such twenty-fifth day is not a Business Day, the next succeeding Business
Day, commencing _______________.
"PERCENTAGE INTEREST" shall mean with respect to any
Certificate the percentage portion of all of the Trust Interest evidenced
thereby as stated on the face of such Certificate.
"PERMITTED INVESTMENTS" shall have the meaning assigned to
such term in the Indenture.
"PROSPECTIVE HOLDER" shall have the meaning set forth in
Section 3.11(a).
"RATING AGENCY CONDITION" means, with respect to any action to
which a Rating Agency Condition applies, that each Rating Agency
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shall have been given 10 days (or such shorter period as is acceptable to each
Rating Agency) prior notice thereof and that each of the Rating Agencies shall
have notified the Company, the Servicer, the Bond Insurer, the Owner Trustee,
and the Issuer in writing that such action will not result in a reduction or
withdrawal of the then current "implied" rating of the Bonds that it maintains
[without taking into account the Bond Insurance].
"RECORD DATE" shall mean as to each Payment Date the last
Business Day of the month immediately preceding the month in which such Payment
Date occurs.
"SALES AGREEMENT" shall mean that certain Sales Agreement,
dated as of _____________ 1, _____, among ________________________, as Seller,
and the Company, as Purchaser.
"SERVICING AGREEMENT" shall mean the Servicing Agreement dated
as of _________________, among the Trust, as Issuer, the Indenture Trustee, and
_____________________, as Servicer.
"SECRETARY OF STATE" shall mean the Secretary of State of
the State of Delaware.
"TAXABLE YEAR" shall have the meaning assigned thereto in
Section 2.11(j).
"TAX MATTERS PARTNER" shall have the meaning assigned thereto
in Section 2.11(l).
"TREASURY REGULATIONS" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary
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regulations shall include analogous provisions of final Treasury Regulations or
other successor Treasury Regulations.
"TRUST" shall mean the trust established by this Agreement.
"TRUST INTEREST" shall mean the right to receive, on each
Payment Date, distributions of the amounts, if any, released to the Issuer
pursuant to Section 8.02(d) of the Indenture or pursuant to Section 2.05 of the
Servicing Agreement.
"TRUST MINIMUM GAIN" shall have the meaning set forth for
"partnership minimum gain" in Treasury Regulations 1.704-2(b)(2) and 1.704-2(d).
In accordance with Treasury Regulations Section 1.704- 2(d), the amount of Trust
Minimum Gain is determined by first computing, for each nonrecourse liability of
the Trust, any gain the Trust would realize if it disposed of the property
subject to that liability for no consideration other than full satisfaction of
the liability, and then aggregating the separately computed gains. A Holder's
share of Trust Minimum Gain shall be determined in accordance with Treasury
Regulations Section 1.704-2(g)(1).
"TRUST PAYING AGENT" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.9 and authorized by the Owner Trustee to
make payments to and distributions from the Certificate Distribution Account.
Section 1.2. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined herein have the meanings assigned to them in
the Servicing Agreement or, if not defined therein,
in the Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or
other
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document made or delivered pursuant hereto unless
otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or
thereto, accounting terms not defined in this
Agreement or in any such certificate or other
document, and accounting terms partly defined in this
Agreement or in any such certificate or other
document to the extent not defined, shall have the
respective meanings given to them under generally
accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement
or in any such certificate or other document are
inconsistent with the meanings of such terms under
generally accepted accounting principles, the
definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and words
of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are
references to Sections and Exhibits in or to this
Agreement unless otherwise specified; and the term
"including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural
forms of such terms and to the masculine as well as
to the feminine and neuter genders of such terms.
(f) Any agreement, instrument, or statute defined or
referred to herein or in any instrument or
certificate delivered in connection herewith means
such agreement, instrument, or statute as from time
to time amended, modified, or supplemented and
includes (in the case of agreements or instruments)
references to all attachments thereto and
instruments incorporated therein; references to a
Person are also to its permitted successors and
assigns.
ARTICLE II
ORGANIZATION
Section 2.1. Name.
The Trust created hereby shall be known as "Union Planters
Mortgage Finance Trust 199__-__," in which name the Owner Trustee may
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conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
Section 2.2. Office.
The office of the Trust shall be in care of the Owner Trustee
at the Corporate Trust Office or at such other address in Delaware as the Owner
Trustee may designate by written notice to the Certificateholders, the Bond
Insurer and the Company.
Section 2.3. Purposes and Powers.
The purpose of the Trust is to engage in the following
activities:
(i) to issue the Bonds pursuant to the Indenture and to
sell such Bonds;
(ii) with the proceeds of the sale of the Bonds, to pay
the organizational, start-up, and transactional
expenses of the Trust and to pay the balance to the
Company pursuant to Article XI.
(iii) to assign, grant, transfer, pledge, mortgage, and
convey the Owner Trust Estate pursuant to the
Indenture and to hold, manage, and distribute to the
Holders any portion of the Owner Trust Estate
released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is or is to be a party;
(v) 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;
(vi) 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 and payments
to the Holders and the Bondholders; and
(vii) to issue the Certificates pursuant to this Agreement.
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The Trust is hereby authorized by the initial Certificateholders to engage in
the foregoing activities. The Trust shall not engage in any activity other than
in connection with the foregoing or other than as required or authorized by the
terms of this Agreement or the Basic Documents.
Section 2.4. Appointment of Owner Trustee.
The Company 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 2.5. Initial Capital Contribution of Owner Trust Estate.
The Company hereby sells, assigns, transfers, conveys, and
sets over to the Owner Trustee, as of the date hereof, the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Company, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate Distribution Account. The
Certificateholders shall pay organizational expenses of the Trust as they may
arise or shall, upon the request of the Owner Trustee, promptly reimburse the
Owner Trustee for any such expenses paid by the Owner Trustee.
Section 2.6. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Owner
Trust Estate in trust upon and subject to the conditions set forth herein for
the use and benefit of the Holders, subject to the obligations of the Trust
under the Basic Documents. It is the intention of the parties hereto that the
Trust constitute a business
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trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that, solely for income and franchise tax purposes, after issuance of the
Certificates, the Trust shall be treated as a partnership, with the assets of
the partnership being the Mortgage Loans and other assets held by the Trust, the
partners of the partnership being the holders of the Certificates and the Bonds
being non-recourse debt of the partnership (or, if there is only one
Certificateholder, that the Trust shall be disregarded as an entity separate
from such Holder, with the assets held by the Trust being treated as assets of
the Holder and the Bonds being treated as non-recourse debt of the Holder). The
parties agree that, unless otherwise required by appropriate tax authorities or
unless the Trust is disregarded as an entity separate from its sole
Certificateholder for income and franchise tax purposes, the Owner Trustee will
file or cause to be filed annual or other necessary returns, reports, and other
forms consistent with the characterization of the Trust as a partnership for
such tax purposes pursuant to Section 2.11(k). The parties agree that no
election will be made to treat the Trust or the Owner Trust Estate as a real
estate mortgage investment conduit as defined in Section 860D of the Code.
Effective as of the date hereof, the Owner Trustee shall have all rights,
powers, and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. The Owner Trustee shall file
the Certificate of Trust with the Secretary of State.
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Section 2.7. Liability of the Holders.
No Holder shall have any personal liability for any liability
or obligation of the Trust. The Certificates shall be fully paid and
non-assessable.
Section 2.8. Title to Trust Property.
(a) Subject to the Indenture, legal title to all of 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 and/or a
separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to
any part of the Owner Trust Estate. No transfer by
operation of law or otherwise of any interest of the
Certificateholders shall operate to terminate this
Agreement or the trusts hereunder or entitle any
transferee to an Accounting or to the transfer to it
of any part of the Owner Trust Estate.
Section 2.9. Situs of Trust.
The Trust will be located and administered in the state of
Delaware. All accounts maintained at a bank by the Owner Trustee on behalf of
the Trust shall be located in the State of Delaware, the State of
_____________________, or the State of Tennessee. The Trust shall not have any
employees; provided however, nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware, New York, ____________________,
or Tennessee, and payments will be made by the Trust only from Delaware, New
York, _______________________, or Tennessee. The only office of the Trust will
be at the Corporate Trust Office in Delaware.
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Section 2.10. Representations and Warranties of the Company; Covenant
of the Company.
(a) The Company hereby represents and warrants to the
Owner Trustee and the Bond Insurer that:
(i) The Company 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 Company has the power and authority to
execute and deliver this Agreement and to
carry out its terms; the Company has full
power and authority to transfer and assign
the property to be transferred and assigned
to and deposited with the Trust and the
Company has duly authorized such transfer
and assignment and deposit to the Trust by
all necessary corporate action; and the
execution, delivery and performance of this
Agreement has been duly authorized by the
Company by all necessary corporate action.
(iii) The consummation of the transactions
contemplated by this 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 certificate of
incorporation or by-laws of the Company, or
any indenture, agreement, or other
instrument to which the Company 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 Company's knowledge, any order,
rule, or regulation applicable to the
Company of any court or of any Federal or
state regulatory body, administrative
agency, or other governmental
instrumentality having jurisdiction over the
Company or its properties.
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(iv) There are no proceedings or investigations
pending or notice of which has been received
in writing before any court, regulatory
body, administrative agency, or other
governmental instrumentality having
jurisdiction over the Company or its
properties: (x) asserting the invalidity of
this Agreement, (y) seeking to prevent the
consummation of any of the transactions
contemplated by this Agreement, or (z)
seeking any determination or ruling that
should reasonably be expected to materially
and adversely affect the performance by the
Company of its obligations under, or the
validity or enforceability of, this
Agreement.
(v) The Company is not in violation of, and its
execution and delivery of this Agreement and
its performance and compliance with the
terms of this Agreement will not constitute
a violation of, any law, any order, or
decree of any court or arbiter, or any
order, regulation, or demand of any federal,
state, or local governmental or regulatory
authority, which violation is likely to
affect materially and adversely either the
ability of the Company to perform its
obligations under this Agreement or the
financial condition of the Company.
(vi) The assignment of the Mortgage Loans to the
Trust as contemplated herein is not subject
to any bulk transfer or similar law in
effect in any applicable jurisdiction;
(vii) The Company has no knowledge of any recent
adverse financial condition or event with
respect to itself that is likely to
materially and adversely affect its ability
to perform its obligations under this
Agreement.
(viii) The Company has not failed to obtain any
consent, approval, authorization, or order
of, and has not failed to cause any
registration or qualification with, any
court or regulatory authority or other
governmental body having jurisdiction over
the Company, which consent, approval,
authorization, order, registration, or
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qualification is required for, and the
absence of which would materially and
adversely affect, the legal and valid
execution, delivery, and performance of this
Agreement by the Company. No consent or
approval of any other person or entity is
necessary for the Company to transfer the
Mortgage Loans to the Trust as contemplated
herein, or, if any such consent or approval
is necessary, such consent or approval has
previously been obtained.
(ix) Immediately prior to the transfer and
assignment herein contemplated, the Company
held good, marketable, and indefeasible
title to, and was the sole owner of, each
Mortgage Loan conveyed by the Company
subject to no liens, charges, mortgages,
encumbrances, or rights of others, except
with respect to liens that will be released
simultaneously with such transfer and
assignment; and immediately upon the
transfer and assignment herein contemplated,
the Trust will hold good, marketable, and
indefeasible title to, and be the sole owner
of, each Mortgage Loan subject to no liens,
charges, mortgages, encumbrances, or rights
of others and the assignment of the Mortgage
Loans contemplated hereby is valid and
effective.
(b) The representations and warranties of __________ with
respect to the Mortgage Loans set forth in the Sales
Agreement are hereby incorporated by reference in
their entirety and are assigned to the Trust in lieu
of any other representations and warranties of the
Company in respect of the Mortgage Loans. Nothing
herein shall be deemed to limit in any respect either
the representations and warranties of
_______________________ or the rights and remedies
assigned by the Company to the Trust against
_________________________ on account of a breach
thereof under the Sales Agreement.
(c) Except for the representations and warranties of the
Company in Section 2.10(a) hereof, the Company is
contributing and conveying the Mortgage Loans,
without recourse to the Company and without
representations or warranties of any kind, express,
or implied, by the Company, whether statutory or
otherwise, including, without limitation, any
warranties of transfer,
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merchantability, or fitness for a particular, or the
Trust's intended, use, or purposes.
(d) Each Certificateholder covenants with the Owner
Trustee [and the Bond Insurer] that during the
continuance of this Agreement, and while it holds
Certificates, it will comply in all respects with the
provisions of its certificate of incorporation in
effect from time to time.
Section 2.11. Federal Income Tax Provisions.
If the Trust is treated as a partnership (rather than
disregarded as a separate entity) for federal income tax purposes pursuant to
Section 2.6, the following provisions shall apply:
(a) A separate capital account (a "Capital Account")
shall be established and maintained for each
Certificateholder in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv). No
Certificateholder shall be entitled to interest on
its Capital Account or any capital contribution made
by such Holder to the Trust.
(b) Upon termination of the Trust pursuant to Article IX,
any amounts available for distribution to Holders
shall be distributed to the Holders with positive
Capital Account balances in accordance with such
balances. For purposes of this Section 2.11(b), the
Capital Account of each Holder shall be determined
after all adjustments made in accordance with this
Section 2.11 resulting from the Trust's operations
and from all sales and dispositions of all or any
part of the assets of the Trust. Any distributions
pursuant to this Section 2.11(b) shall be made by the
end of the Taxable Year in which the termination
occurs (or, if later, within 90 days after the date
of the termination).
(c) No Certificateholder shall be required to restore any
deficit balance in its Capital Account. Furthermore,
no Holder shall be liable for the return of the
Capital Account of, or of any capital contribution
made to the Trust by, another Holder.
(d) Profit and loss of the Trust for each Taxable Year
shall be allocated to the Certificateholders in
accordance with their respective Percentage
Interests.
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(e) Notwithstanding any provision to the contrary, (i)
any expense of the Trust that is a "nonrecourse
deduction" within the meaning of Treasury Regulations
Section 1.704-2(b)(1) shall be allocated in
accordance with the Holders' respective Percentage
Interests, (ii) any expense of the Trust that is a
"partner nonrecourse deduction" within the meaning of
Treasury Regulations Section 1.704-2(i)(2) shall be
allocated in accordance with Treasury Regulations
Section 1.704-2(i)(1), (iii) if there is a net
decrease in Trust Minimum Gain within the meaning of
Treasury Regulations Section 1.704-2(f)(1) for any
Taxable Year, items of gain and income shall be
allocated among the Holders in accordance with
Treasury Regulations Section 1.704- 2(f) and the
ordering rules contained in Treasury Regulations
Section 1.704-2(j), and (iv) if there is a net
decrease in Holder Nonrecourse Debt Minimum Gain
within the meaning of Treasury Regulations Section
1.704-2(i)(4) for any Taxable Year, items of gain and
income shall be allocated among the Holders in
accordance with Treasury Regulations Section 1.704-
2(i)(4) and the ordering rules contained in Treasury
Regulations Section 1.704-2(j). A Holder's "interest
in partnership profits" for purposes of determining
its share of the nonrecourse liabilities of the Trust
within the meaning of Treasury Regulations Section
1.752-3(a)(3) shall be such Holder's Percentage
Interest.
(f) If a Holder receives in any Taxable Year an
adjustment, allocation, or distribution described in
subparagraphs (4), (5), or (6) of Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) that causes
or increases a negative balance in such Holder's
Capital Account that exceeds the sum of such Holder's
shares of Trust Minimum Gain and Holder Nonrecourse
Debt Minimum Gain, as determined in accordance with
Treasury Regulations Sections 1.704-2(g) and
1.704-2(i), such Holder shall be allocated specially
for such Taxable Year (and, if necessary, later
Taxable Years) items of income and gain in an amount
and manner sufficient to eliminate such negative
Capital Account balance as quickly as possible as
provided in Treasury Regulations Section
1.704-1(b)(2)(ii)(d). After the occurrence of an
allocation of income or gain to a Holder in
accordance with this Section 2.11(f), to the extent
permitted by Regulations Section 1.704-1(b), items of
expense or loss shall be allocated to such Holder in
an amount necessary to offset the income or gain
previously allocated to such Holder under this
Section 2.11(f).
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(g) Loss shall not be allocated to a Holder to the extent
that such allocation would cause a deficit in such
Holder's Capital Account (after reduction to reflect
the items described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6)) to exceed the
sum of such Holder's shares of Trust Minimum Gain and
Holder Nonrecourse Debt Minimum Gain. Any loss in
excess of that limitation shall be allocated to all
the Holders in accordance with their respective
Percentage Interests. After the occurrence of an
allocation of loss to a Holder in accordance with
this Section 2.11(g), to the extent permitted by
Treasury Regulations Section 1.704-1(b), profit shall
be allocated to such Holder in an amount necessary to
offset the loss previously allocated to such Holder
under this Section 2.11(g).
(h) If a Holder transfers any part or all of its
Holdership Interest and the transferee is admitted as
provided herein (a "Transferee Holder"), the
distributive shares of the various items of profit
and loss allocable among the Holders during such
Taxable Year shall be allocated between the
transferor and the Transferee Holder (at the election
of the Holders (including the transferor, but
excluding the Transferee Holder)) either (i) as if
the Taxable Year had ended on the date of the
transfer or (ii) based on the number of days of such
Taxable Year that each was a Holder without regard to
the results of Trust activities in the respective
portions of such Taxable Year in which the transferor
and Transferee Holder were Holders.
(i) "Profit" and "loss" and any items of income, gain,
expense or loss referred to in this Section 2.11
shall be determined in accordance with federal income
tax accounting principles as modified by Treasury
Regulations Section 1.704-1(b)(2)(iv), except that
profits and losses shall not include items of income,
gain, and expense that are specially allocated
pursuant to Sections 2.11(e), 2.11(f) or 2.11(g)
hereof. All allocations of income, profits, gains,
expenses, and losses (and all items contained
therein) for federal income tax purposes shall be
identical to all allocations of such items set forth
in this Section 2.11, except as otherwise required by
Section 704(c) of the Code and Section 1.704-1(b)(4)
of the Treasury Regulations.
(j) The taxable year of the Trust (the "Taxable Year")
shall be the calendar year or such other taxable year
as may be required by Section 706(b) of the Code.
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(k) At the Trust's expense, the Owner Trustee shall (i)
prepare, or cause to be prepared, and file such tax
returns relating to the Trust (including a
partnership information return, IRS Form 1065) as
are required by applicable federal, state, and local
law, (ii) cause such returns to be signed in the
manner required by law, (iii) make such elections as
may from time to time be required or appropriate
under any applicable law so as to maintain the
Trust's classification as a partnership for tax
purposes, (iv) prepare and deliver, or cause to be
prepared and delivered, to the Holders, no later
than 75 days after the close of each Taxable Year, a
Schedule K-1, a copy of the Trust's informational
tax return (IRS Form 1065), and such other reports
(collectively, the "Annual Tax Reports") setting
forth in sufficient detail all such information and
data with respect to the transactions effected by or
involving the Trust during such Taxable Year as
shall enable the each Holder to prepare its federal,
state, and local income tax returns in accordance
with the laws then prevailing, and (v) collect, or
cause to be collected, any withholding tax as
described in Section 5.2(c) with respect to income
or distributions to Certificateholders.
(l) The Holders shall designate a Holder as the tax
matters partner for the Trust within the meaning of
Section 6231(a)(7) of the Code (the Tax Matters
Partner"), and shall notify the Indenture Trustee,
the Manager (as defined in Section 5.2(d)) and the
Owner Trustee in writing of the name and address of
such Tax Matters Partner. The Tax Matters Partner
shall have the right and obligation to take all
actions authorized and required, respectively, by
the Code for the Tax Matters Partner. The Tax
Matters Partner shall have the right to retain
professional assistance in respect of any audit or
controversy proceeding initiated with respect to the
Trust by the Internal Revenue Service or any state
or local taxing authority, and all expenses and fees
incurred by the Tax Matters Partner on behalf of the
Trust shall constitute expenses of the Trust. In
the event the Tax Matters Partner receives notice of
a final partnership adjustment under Section
6223(a)(2) of the Code, the Tax Matters Partner
shall either (i) file a court petition for judicial
review of such adjustment within the period provided
under Section 6226(a) of the Code, a copy of which
petition shall be mailed to all other Holders on the
date such petition is filed, or (ii) mail a written
notice to all other Holders, within such period,
that describes the Tax Matters
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Partner's reasons for determining not to file such a
petition.
(m) Except as otherwise provided in this Section 2.11,
the Holders shall instruct the Owner Trustee as to
whether to make any available election under the
Code or any applicable state or local tax law on
behalf of the Trust. Notwithstanding the foregoing,
any Holder may request that the Owner Trustee make
an election under section 754 of the Code; provided
that the requesting Holder shall agree to bear the
cost of preparing such election and any additional
accounting expenses of the Trust incurred as a
result of such election.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1. Initial Ownership.
Upon the formation of the Trust by the contribution by the
Company pursuant to Section 2.5 and until the issuance of the Certificates, the
Company shall be the sole beneficiary of the Trust.
Section 3.2. The Certificates.
The Certificates shall be issued without a principal amount
and shall evidence beneficial ownership interests in the Trust. The Certificates
shall be printed, lithographed, or engraved or may be produced in any other
manner as is reasonably acceptable to the Owner Trustee, as evidenced by its
execution thereof. The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of a Trust Officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be valid, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did
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not hold such offices at the date of authentication and delivery of
such Certificates.
A transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
Section 3.3. Execution, Authentication and Delivery of Trust
Certificates.
Concurrently with the initial transfer of the Mortgage Loans
to the Trust pursuant to Article XI hereof, the Owner Trustee shall cause the
Certificates, representing 100% of the Percentage Interests of the Trust
Interest, to be executed on behalf of the Trust, authenticated and delivered to
________________________, as the Company's designee. No Certificate shall
entitle its holder to any benefit under this Agreement, or shall 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 Owner Trustee's authenticating agent, by manual or
facsimile signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 3.4. Registration of Transfer and Exchange of Trust
Certificates.
The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a
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Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. The Owner
Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.8, the Owner Trustee
shall execute, authenticate and deliver (or shall cause its authenticating agent
to authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates of a like Percentage Interest dated
the date of authentication by the Owner Trustee or any authenticating agent. At
the option of a Certificateholder, Certificates may be exchanged for other
Certificates of a like Percentage Interest upon surrender of the Certificates to
be exchanged at the office or agency maintained pursuant to Section 3.8.
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 Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or his attorney duly authorized in writing. In
addition, each Certificate presented or surrendered for registration of transfer
and exchange must be accompanied by a letter from the Prospective Holder
certifying as to the representations set forth in Section 3.11(a), (b), and (c).
Each Certificate surrendered for registration of
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transfer or exchange shall be canceled and disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
The preceding provisions of this Section notwithstanding, the
Owner Trustee shall not make and the Certificate Registrar shall not register
transfer or exchanges of Certificates for a period of 15 days preceding the
Payment Date with respect to the Certificates.
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss, or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee, or the Owner Trustee'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 Percentage
Interest. In connection with the issuance of any new Certificate under this
Section, the Owner Trustee or the Certificate Registrar may require
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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 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 3.6. Persons Deemed Owners.
Each person by virtue of becoming a Certificateholder in
accordance with this Agreement shall be deemed to be bound by the terms of this
Agreement. Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee or the Certificate Registrar may treat the Person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.2 and for all other purposes whatsoever, and neither the
Owner Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
Section 3.7. Access to List of Holders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to
the Servicer, the Company and the Trust Paying Agent immediately prior to each
Payment Date, a list of the names and addresses of the Certificateholders as of
the most recent Record Date. If three or more Certificateholders or one or more
Holders of Certificates, together evidencing Percentage Interests totaling not
less than 25%, apply in writing to the Owner Trustee, and such application
states that the applicants desire to communicate with other
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Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Company, 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 3.8. Maintenance of Office or Agency.
The Owner Trustee shall maintain an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates ________________________ as its principal corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Company and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
Section 3.9. Appointment of Trust Paying Agent.
The Owner Trustee hereby appoints ___________________, as
Trust Paying Agent under this Agreement. The Trust Paying Agent shall make
distributions to Certificateholders from the Certificate
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Distribution Account pursuant to Section 5.2 and shall report to the Owner
Trustee on the Payment Date via facsimile transmission of a distribution
statement the amounts of such distributions to the Certificateholders. The Trust
Paying Agent shall have the revocable power to withdraw funds from the
Certificate Distribution Account for the purpose of making the distributions
referred to above. In the event that __________, shall no longer be the Trust
Paying Agent hereunder, the Owner Trustee shall appoint a successor to act as
Trust Paying Agent (which shall be a bank or trust company) acceptable to the
Certificateholders and the Bond Insurer. The Owner Trustee shall cause such
successor Trust Paying Agent or any additional Trust Paying Agent appointed by
the Owner Trustee to execute and deliver to the Owner Trustee an instrument in
which such successor Trust Paying Agent or additional Trust Paying Agent shall
agree with the Owner Trustee that as Trust Paying Agent, such successor Trust
Paying Agent or additional Trust Paying Agent will hold all sums, if any, held
by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. After one year from the date of receipt, the Trust Paying
Agent shall promptly return all unclaimed funds to the Owner Trustee, and upon
removal of a Trust Paying Agent, such Trust Paying Agent shall also return all
funds in its possession to the Owner Trustee. The provisions of Sections 7.1,
7.3(b), 7.4, 8.1, and 10.2 as to resignations, shall apply to the Trust Paying
Agent to the same extent as if it were named therein and, to the extent
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applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Trust Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 3.10. Restrictions on Transfer of Certificates.
(a) Each prospective purchaser and any subsequent
transferee of a Certificate (each, a "Prospective
Holder"), other than ____________________, shall
represent and warrant, in writing, to the Owner
Trustee and the Certificate Registrar and any of
their respective successors that:
(i) Such Person is (A) a "qualified
institutional buyer" as defined in Rule 144A
under the Securities Act of 1933, as amended
(the "Securities Act"), and is aware that
the seller of the Certificate may be relying
on the exemption from the registration
requirements of the Securities Act provided
by Rule 144A and is acquiring such
Certificate for its own account or for the
account of one or more qualified
institutional buyers for whom it is
authorized to act, or (B) a Person involved
in the organization or operation of the
Trust or an affiliate of such Person within
the meaning of Rule 3a-7 of the Investment
Company Act of 1940, as amended (including,
but not limited to, _____________________.
(ii) Such Person understands that the
Certificates have not been and will not be
registered under the Securities Act and may
be offered, sold, pledged, or otherwise
transferred only to a person whom the seller
reasonably believes is (C) a qualified
institutional buyer or (D) a Person involved
in the organization or operation of the
Trust or an affiliate of such Person, in a
transaction meeting the requirements of Rule
144A under the Securities Act and in
accordance with any applicable securities
laws of any state of the United States.
(iii) Such Person understands that the
Certificates bear a legend to the following
effect:
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"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING
PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN
A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON
INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN
AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT
NOT LIMITED TO, _______________________________ IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED
TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE
SECURITIES LAWS."
(b) By its acceptance of a Certificate, each Prospective Holder
agrees and acknowledges that no legal or beneficial
interest in all or any portion of any Certificate may be
transferred directly or indirectly to an entity that holds
residual securities as nominee to facilitate the clearance
and settlement of such securities through electronic book-
entry changes in Accounts of participating organizations (a
"Book-Entry Nominee") and any such purported transfer shall
be void and have no effect.
(c) No transfer of this certificate or any beneficial interest
therein shall be made to any person unless the Owner
Trustee has received a certificate from the Transferee to
the effect that such transferee (i) is not a person which
is an employee benefit plan, trust, or account subject to
Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Code or
a governmental plan, defined in Section 3(32) of ERISA
subject to any federal, state or local law which is, to a
material extent, similar to the foregoing provisions of
ERISA or the Code (any such person being a "plan") and (ii)
is not an entity, including an insurance company separate
account or general account, whose underlying assets include
plan assets by reason of a plan's investment in the entity.
(d) The Owner Trustee shall not execute, and shall not countersign
and deliver, a Certificate in connection with any transfer
thereof unless the transferor shall have
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provided to the Owner Trustee a certificate, substantially in
the form attached as Exhibit C to this Agreement, signed by
the transferee, which certificate shall contain the consent of
the transferee to any amendments of this Agreement as may be
required to effectuate further the foregoing restrictions on
transfer of the Certificates to Book-Entry Nominees, and an
agreement by the transferee that it will not transfer a
Certificate without providing to the Owner Trustee a
certificate substantially in the form attached as Exhibit C to
this Agreement.
(e) The Certificates shall bear an additional legend referring
to the restrictions contained in paragraph (b) above.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Prior Notice to Holders with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall
not take action, and the Certificateholders shall not direct the Owner Trustee
to take any action, unless at least 30 days before the taking of such action,
the Owner Trustee shall have notified the Certificateholders and the Bond
Insurer in writing of the proposed action and neither the Certificateholders nor
the Bond Insurer shall have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Certificateholders and/or the Bond
Insurer have withheld consent or the Certificateholders have provided
alternative direction (any direction by the Certificateholders shall require the
prior consent of the Bond Insurer):
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection
of the Mortgage Loans) and the compromise of any action, claim
or lawsuit brought by or against the Trust (except with
respect to the aforementioned claims or lawsuits for
collection of the Mortgage Loans);
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(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 Business Trust Statute);
(c) the amendment or other change to this Agreement or any Basic
Document in circumstances where the consent of any Holder or
the Bond Insurer is required;
(d) the amendment or other change to this Agreement or any Basic
Document in circumstances where the consent of any Holder or
the Bond Insurer is not required and such amendment materially
adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Bond
Registrar, Trust Paying Agent, or Indenture Trustee or
pursuant to this Agreement of a successor Certificate
Registrar or Trust Paying Agent, or the consent to the
assignment by the Bond Registrar, Paying Agent, or Indenture
Trustee or Certificate Registrar or Trust Paying Agent of its
obligations under the Indenture or this Agreement, as
applicable.
(f) the consent to the calling or waiver of any default of any
Basic Document;
(g) the consent to the assignment by the Indenture Trustee or
Servicer of their respective obligations under any Basic
Document;
(h) except as provided in Article IX hereof, dissolve, terminate
or liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other entity,
or convey or transfer all or substantially all of the Trust's
assets to any other entity;
(j) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the Basic
Documents;
(k) do any act that conflicts with any other Basic Document;
(l) do any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.3
hereof;
(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose;
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(o) cause the Trust to lend any funds to any entity; or
(p) change the Trust's purpose and powers from those set forth
in this Trust Agreement.
In addition the Trust shall not commingle its assets with
those of any other entity. The Trust shall maintain its financial and accounting
books and records separate from those of any other entity. Except as expressly
set forth herein, the Trust shall pay its indebtedness, operating expenses, and
liabilities from its own funds, and the Trust shall not pay the indebtedness,
operating expenses, and liabilities of any other entity. The Trust shall
maintain appropriate minutes or other records of all appropriate actions and
shall maintain its office separate from the offices of the Company and
________________.
The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders with the consent of the Bond Insurer, and to
the extent otherwise consistent with the Basic Documents, to (i) remove or
replace the Servicer or the Indenture Trustee, (ii) institute proceedings to
have the Trust declared or adjudicated a bankruptcy or insolvent, (iii) consent
to the institution of bankruptcy or insolvency proceedings against the Trust,
(iv) file a petition or consent to a petition seeking reorganization or relief
on behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (v) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator, or any similar official of the Trust or a substantial
portion of the property of the Trust, (vi) make any assignment for the benefit
of the Trust's creditors, (vii) cause the Trust to admit
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in writing its inability to pay its debts generally as they become due, and
(viii) take any action, or cause the Trust to take any action, in furtherance of
any of the foregoing (any of the above, a "Bankruptcy Action"). So long as the
Indenture and the Insurance Agreement remain in effect and no Bond Insurer
Default exists, no Certificateholder shall have the power to take, and shall not
take, any Bankruptcy Action with respect to the Trust or direct the Owner
Trustee to take any Bankruptcy Action with respect to the Trust.
Section 4.2. Action by Holders 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 consent and
approval of the Bond Insurer, the unanimous prior approval of all
Certificateholders and the Bond Insurer and the delivery to the Owner Trustee by
each such Certificateholder of a certification that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.3. Restrictions on Holders' Power.
The Certificateholders shall not direct the Owner Trustee to
take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee under this
Agreement or any of the Basic Documents or would be contrary to Section 2.3 nor
shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.4. Majority Control.
Except as expressly provided herein, any action that may be
taken by the Certificateholders under this Agreement may be taken by
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the Holders of Certificates evidencing more than 50% of the Percentage Interest
in the Trust Interest and such action shall be binding upon all
Certificateholders. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of Certificates evidencing more than 50% of the Percentage
Interest in the Trust Interest at the time of the delivery of such notice and
such action shall be binding upon all Certificateholders.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Establishment of Certificate Distribution Account.
The Owner Trustee shall cause the Trust Paying Agent, for the
benefit of the Certificateholders, to establish and maintain with
________________________, for the benefit of the Owner Trustee one or more
Accounts that while the Trust Paying Agent holds such Account shall be entitled
"Certificate Distribution Account, _________________________, as Trust Paying
Agent, in trust for the Holders of Certificates evidencing beneficial interests
in Union Planters Mortgage Finance Trust 199__-__." Funds shall be deposited in
the Certificate Distribution Account as required by the Indenture or, following
satisfaction and release of the Indenture, by the Servicing Agreement.
All of the right, title, and interest of the Owner Trustee in
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof shall be held for the benefit of the
Certificateholders, the Bond Insurer, and such
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other persons entitled to distributions therefrom. Except as otherwise expressly
provided herein, the Certificate Distribution Account shall be under the sole
dominion and control of the Owner Trustee for the benefit of the
Certificateholders and the Bond Insurer.
Section 5.2. Application of Trust Funds.
(a) On each Payment Date, the Trust Paying Agent shall distribute
to the Certificateholders, on the basis of their respective
Percentage Interests, all amounts then on deposit in the
Certificate Distribution Account.
(b) On each Payment Date, the Trust Paying Agent shall send to
Certificateholders the statement provided to the Owner
Trustee by the Indenture Trustee pursuant to Section
2.08(d) of the Indenture with respect to such Payment Date.
If the Trust Paying Agent is an entity other than the
Indenture Trustee, the Owner Trustee shall provide a copy
of such statement to the Trust Paying Agent to enable it to
perform its duties under this Section 5.2(b).
(c) In the event that any withholding tax is imposed under
federal, state, or local tax on the Trust's payment (or
allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to such
Certificateholder in accordance with this Section. The
Owner Trustee, and the Trust Paying Agent on its behalf, is
hereby authorized and directed to retain in the Certificate
Distribution Account 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 Certificate
Registrar will provide the Trust Paying Agent with a
statement indicating the amount of any such withholding
tax. The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate
taxing authority from the Certificate Distribution Account
at the direction of the Owner Trustee or the Trust Paying
Agent on its behalf. If there is a possibility that
withholding tax is payable with respect to a distribution
(such as a distribution to a Certificateholder who is a
Non-U.S. Person), the Trust Paying Agent may in its sole
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discretion withhold such amounts in accordance with this
paragraph (c). In the event that a Certificateholder wishes to
apply for a refund of any such withholding tax, the Owner
Trustee and the Trust Paying Agent shall reasonably cooperate
with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee
for any out-of-pocket expenses incurred.
(d) Notwithstanding anything to the contrary herein, at any time
after the Indenture is no longer in effect but while this
Agreement remains in effect, the Bond Administrator shall be
entitled to a fee on each Payment Date equal to the Indenture
Trustee Fee that would have been payable to the Indenture
Trustee on such Payment Date if the Indenture were still in
effect. Such fee shall be distributed to the Bond
Administrator from funds in the Certificate Distribution
Account prior to distribution of any such funds to
Certificateholders. Also, in such event, the Servicer shall
provide the same information to the Bond Administrator that it
would have provided to the Indenture Trustee pursuant to the
Servicing Agreement, as well as any other information
concerning the Mortgage Loans as may be reasonably requested
by the Bond Administrator to enable the Bond Administrator to
perform its obligations hereunder. On each such Payment Date,
the Trust Paying Agent shall mail to each Certificateholder a
statement detailing the amount remitted to the Trust Paying
Agent by the Servicer on the related Deposit Date and setting
forth the amount of the Monthly Servicing Fee and fees paid to
the Bond Administrator with respect to such Payment Date, and
the aggregate amount distributed to Certificateholders on such
Payment Date.
Section 5.3. Method of Payment.
Distributions required to be made to Certificateholders on any
Payment Date shall be made to each Certificateholder of record on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Trust Paying
Agent appropriate written instructions at least five Business Days prior to such
Payment Date, or, if not, by check mailed to such
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Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.4. Segregation of Moneys; No Interest.
Subject to Sections 5.1 and 5.2, moneys received by the Trust
Paying Agent hereunder and deposited into the Certificate Distribution Account
will be segregated except to the extent required otherwise by law and, if the
Holders of more than 50% of the Certificates so direct, shall be invested in
Permitted Investments maturing no later than one Business Day prior to the
related Payment Date at the direction of such Certificateholders. The Trust
Paying Agent shall not be liable for payment of any interest or losses in
respect of such moneys. Investment gains shall be for the account of and paid to
the Certificateholders.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. General Authority.
The Owner Trustee is authorized and directed to execute and
deliver or cause to be executed and delivered the Bonds, the Certificates, and
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 in Article III, in each case, in such form as the Owner
Trustee shall approve, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition, the Owner Trustee is authorized and directed, on
behalf of the Trust, to execute and deliver to the Authenticating Agent, the
Issuer Request and the Issuer Order referred to in Section
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2.11 of the Indenture, in such form as the Company shall approve, as evidenced
conclusively by the Owner Trustee's or the Company's execution thereof, directly
to the Authenticating Agent to authenticate and deliver Bonds in the aggregate
principal amount of $___________. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all actions required
of the Trust, pursuant to the Basic Documents.
Section 6.2. General Duties.
It shall be the duty of the Owner Trustee:
(a) To discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this
Agreement and the Basic Documents to which the Trust
is a party and to administer the Trust in the
interest of the Certificateholders, subject to the
Basic Documents and in accordance with the provisions
of this Agreement; the Owner Trustee shall not be
responsible for taking any action with respect to the
Indenture or any other of the Basic Documents unless
a Responsible Office of the Owner Trustee has actual
knowledge of the facts which require such action or
has received written notice of the need to take such
action; the Owner Trustee shall not be responsible
for any matter regarding the Investment Company Act
of 1940, as amended (or any successor statute) or the
rules or regulations thereunder; and
(b) To obtain and preserve the Issuer's qualification to
do business in each jurisdiction in which such
qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the
Bonds, the Mortgage Loans, and each other instrument
and agreement included in the Trust Estate.
Section 6.3. Action upon Instruction.
(a) Subject to Article IV and in accordance with the
terms of the Basic Documents, the Certificateholders
may by written instruction direct the Owner Trustee
in the management of the Trust but only to the extent
consistent with the limited purpose of the Trust.
Such direction may be exercised at anytime by written
instruction of the Certificateholders pursuant to
Article IV. Without limiting the generality of the
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foregoing, the Owner Trustee shall act as directed by
the Certificateholders in connection with Bond
redemptions requested by the Certificateholders, and
shall take all actions and deliver all documents that
the Trust is required to take and deliver in
accordance with Section 4.01 and Article X of the
Indenture in order to effect any redemption requested
by the Certificateholders.
(b) 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 unable to decide
between alternative courses of action permitted
or required by the terms of this Agreement or under
any Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders
and the Bond Insurer requesting instruction from the
Certificateholders as to the course of action to be
adopted, and to the extent the Owner Trustee acts in
good faith in accordance with any written
instruction of the Certificateholders received, 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 Agreement or the Basic Documents, as it
shall deem to be in the best interests of the
Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to
the application of any provision of this 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 Agreement permits any
determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner
Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders
requesting
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instruction and, to the extent that the Owner Trustee
acts or refrains from acting in good faith in
accordance with any such instruction received, the
Owner Trustee shall not be liable, on account of such
action or inaction, 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 Agreement or the Basic
Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have
no liability to any Person for such action or
inaction.
Section 6.4. No Duties Except as Specified in this Agreement, the Basic
Documents or Any Instructions.
The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement, any Basic Document, or in any document or written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Basic Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this 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
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Estate that result from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Owner Trust
Estate.
Section 6.5. No Action Except Under Specified Documents or
Instructions.
The Owner Trustee shall not manage, control, use, sell,
dispose of, or otherwise deal with any part of the Owner Trust Estate except (i)
in accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents, and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.3.
Section 6.6. Restrictions.
The Owner Trustee shall not take any action (a) that is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (b)
that, to the actual knowledge of the Owner Trustee, would result in the Trust's
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.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. 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 Agreement and the Basic Documents. The Owner Trustee also agrees
to disburse all moneys actually
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received by it constituting part of the Owner Trust Estate upon the terms of the
Basic Documents and this 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 or negligence or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 7.3
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) the Owner Trustee shall not be liable for any error of
judgment made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with
the instructions of the Certificateholders;
(c) no provision of this 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 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;
(d) 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
Bonds;
(e) the Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the
due execution hereof by the Company 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, other than the
certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Bondholder or to any
Certificateholder, other than as expressly provided for herein
and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Seller, the Company, the Indenture
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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
Agreement or the Basic Documents that are required to be
performed by the Indenture Trustee under the Indenture or the
Servicer under the Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct, or defend any litigation under this
Agreement or otherwise or in relation to this Agreement or any
Basic Document, at the request, order or direction of any of
the Certificateholders, unless such 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 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 gross
negligence or willful misconduct in the performance of any
such act.
Section 7.2. Furnishing of Documents.
The Owner Trustee shall furnish to the Certificateholders
promptly upon receipt of a written request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements, and any
other instruments furnished to the Owner Trustee under the Basic Documents. On
behalf of the Owner Trustee, the Company shall furnish to Bondholders promptly
upon written request therefor, copies of the Servicing Agreement and the
Indenture.
Section 7.3. Representations and Warranties.
(a) The Owner Trustee hereby represents and warrants to
the Company for the benefit of the Certificateholders,
that:
(i) It is a [banking corporation] duly organized and
validly existing in good standing under the laws of
________________. It has all requisite corporate
power and authority to execute,
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deliver and perform its obligations under
this Agreement.
(ii) It has taken all corporate action necessary
to authorize the execution and delivery by
it of this Agreement, and this Agreement
will be executed and delivered by one of its
officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it
of this 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
by-laws.
(b) The Trust Paying Agent hereby represents and warrants
to the Company and the Bond Insurer for the benefit
of the Certificateholders, that:
(i) It is a [banking association] duly organized
and validly existing in good standing under
the laws of the _______________. It has all
requisite corporate power and authority to
execute, deliver, and perform its
obligations under this Agreement.
(ii) It has taken all corporate action necessary
to authorize the execution and delivery by
it of this Agreement, and this Agreement
will be executed and delivered by one of its
officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it
of this 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 law, governmental rule, or
regulation governing the banking or trust
powers of the Trust Paying Agent or any
judgment or order binding on it, or
constitute any default under its charter
documents or by-laws.
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Section 7.4. 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 the 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 trusts
hereunder and in the performance of its duties and
obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys 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 or attorneys if such
agents or attorneys shall 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. The Owner Trustee shall not be
liable for anything done, suffered, or omitted in
good faith by it in accordance with the written
opinion or advice of any such counsel, Accountants,
or other such persons and not contrary to this
Agreement or any Basic Document.
Section 7.5. Not Acting in Individual Capacity.
Except as provided in this Article VII, 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
Agreement or any Basic Document
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shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section 7.6. Owner Trustee Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other
than the signature and countersignature of the Owner Trustee on the
Certificates) shall be taken as the statements of the Company, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement, of
any Basic Document, of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates and as specified in
Section 7.3), of the Bonds, or of any Mortgage Loans or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity, and enforceability of any Mortgage Loan, or
the perfection and priority of any security interest created by any Mortgage
Loan or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this Agreement or the
Bondholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Mortgaged Property, the existence and
enforceability of any insurance thereon, the existence and contents of any
Mortgage Loan on any computer or other record thereof, the validity of the
assignment of any Mortgage Loan to the Trust or of any intervening assignment,
the completeness of any Mortgage Loan, the performance or enforcement
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of any Mortgage Loan, the compliance by the Company or the Servicer 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 Indenture Trustee or the Servicer or any subservicer taken in the name of
the Owner Trustee.
Section 7.7. Owner Trustee May Own Certificates and Bonds.
The Owner Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates or Bonds and may deal with the
Company, the Indenture Trustee and the Servicer in banking transactions with the
same rights as it would have if it were not Owner Trustee.
Section 7.8. Licenses.
The Owner Trustee shall cause the Trust to use its best
efforts to obtain and maintain the effectiveness of any licenses required in
connection with this Agreement and the Basic Documents and the transactions
contemplated hereby and thereby until such time as the Trust shall terminate in
accordance with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. 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 between ____________________________ and the Owner Trustee, and the Owner
Trustee shall be entitled to be reimbursed by _______________________ for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts, and
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counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. Such fees and expenses are
as set forth on Exhibit D hereto. The Certificateholders shall be responsible
and liable for the payment of such fees and expenses, pro rata based upon their
respective Percentage Interests, and shall pay such fees and expenses promptly
after receipt of a written invoice therefor from the Owner Trustee.
Section 8.2. Indemnification.
The Certificateholders shall be liable as obligor for, and
shall indemnify the Owner Trustee and the Trust Paying Agent and their
respective successors, assigns, agents, and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions, and suits, and any and all reasonable
costs, expenses, and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, "Expenses") which may
at any time be imposed on, incurred by, or asserted against any Indemnified
Party in any way relating to or arising out of this Agreement, the Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust Estate,
or the action or inaction of the Owner Trustee or the Trust Paying Agent
hereunder, except only that the Certificateholders shall not be liable for or
required to indemnify an Indemnified Party from and against Expenses arising or
resulting from any of the matters described in the third sentence of Section
7.1. The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the Trust
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Paying Agent or the termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Certificateholders will be entitled to participate therein, with
counsel selected by such Holders and reasonably satisfactory to the Indemnified
Parties, and after notice from Certificateholders to the Indemnified Parties of
its election to assume the defense thereof, the Certificateholders shall not be
liable to the Indemnified Party under this Section 8.2 for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense of such action; provided, however, that this sentence shall not be in
effect if (1) the Certificateholders shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (2) the
Certificateholders shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Certificateholders. If the
Certificateholders assume the defense of any such proceeding, they shall be
entitled to settle such proceeding without any liability being assessed against
any Indemnified Party or, if such settlement provides for release of any such
Indemnified Party without any liability being assessed against any Indemnified
Party in connection with all matters relating to the proceeding which have been
asserted against such Indemnified Party in such proceeding by the other parties
to such settlement, without the consent of such Indemnified Party, but otherwise
only with the consent of such Indemnified Party. Certificateholders shall be
liable for this
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indemnification obligation pro rata, based upon their respective
Percentage Interests.
Section 8.3. Payments to the Owner Trustee.
Any amounts paid to the Owner Trustee or the Trust Paying
Agent pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
Section 8.4. Servicer Liability.
In the event the Certificateholders fail to pay all or any
portion of any fees, expenses, or indemnification amounts to the Owner Trustee
or the Trust Paying Agent for which they are liable under this Article VIII, the
Servicer shall pay such amounts to the Owner Trustee or the Trust Paying Agent,
as the case may be, promptly after receipt of an invoice therefor from the party
entitled thereto.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.1. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the
Trust shall terminate and be of no further force or
effect on the earlier of: (i) the final payment or
other liquidation of the [Mortgage Loans and the
disposition of all REO Properties] and the
remittance of all funds due hereunder with respect
to such [Mortgage Loans and REO Properties] or the
disposition of the [Mortgage Loans and REO
Properties] at the direction of a majority of the
Certificateholders, in either case after the
satisfaction and discharge of the Indenture pursuant
to Section 4.01 of the Indenture; and (ii) the
expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the
late ambassador of the United States to the Court of
St. James's). The bankruptcy, liquidation,
dissolution, death, or incapacity of any
Certificateholder or the Company shall not (x)
operate to terminate this Agreement or the Trust,
nor (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
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up of all or any part of the Trust or Owner Trust
Estate, nor (z) otherwise affect the rights,
obligations, and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a) above, none of
the Company, the Servicer, the Bond Insurer, nor any
Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying
the Payment Date upon which the Certificateholders
shall surrender their Certificates to the Owner
Trustee for payment of the final distributions and
cancellation, shall be given by the Owner Trustee to
the Certificateholders, the Bond Insurer, the Rating
Agencies and the Trust Paying Agent mailed within
five Business Days of receipt by the Owner Trustee
of notice of such termination pursuant to Section
9.1(a) above, which notice given by the Owner
Trustee shall state (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
Owner Trustee 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 Owner Trustee therein specified.
The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner
Trustee) and the Trust Paying Agent at the time such
notice is given to Certificateholders. The Owner
Trustee shall give notice to the Trust Paying Agent
of each presentation and surrender of Certificates
promptly, and the Trust Paying Agent shall promptly
cause to be distributed to the related
Certificateholders amounts distributable on such
Payment Date pursuant to Section 5.2(a).
(d) Upon the winding up of the Trust and its termination,
the Owner Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in
accordance with the provisions of Section 3820 of the
Business Trust Statute.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation
satisfying the provisions of Section 3807(a) of the Business Trust Statute;
authorized to exercise corporate powers; having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
state authorities; and having (or having a parent that has) a rating of at least
"Baa3" by ▇▇▇▇▇'▇ and "A-1" by Standard & Poor's [and being acceptable to the
Bond Insurer]. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.2.
Section 10.2. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged
from the trusts hereby created by giving written notice thereof to the Servicer,
the Indenture Trustee, and the Bond Insurer. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor Owner Trustee
(acceptable to the Bond Insurer) by written instrument, in duplicate, one copy
of which instrument shall
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be delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee or the Bond Insurer 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 10.1 and shall fail to resign after
written request therefor by the Certificateholders or the Servicer, 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 Bond Insurer, or the Certificateholders
or the Servicer with the consent of the Bond Insurer, may remove the Owner
Trustee. If the Certificateholders or the Servicer or the Bond Insurer shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Bond Insurer, or the Servicer with the consent of the Bond
Insurer, shall promptly appoint a successor Owner Trustee by written instrument
in duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee and payment
of all fees owed to the outgoing Owner Trustee.
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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 10.3 written approval by the Bond
Insurer and payment of all fees and expenses owed to the outgoing Owner Trustee.
The Servicer shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies, the Indenture Trustee, the Trust Paying
Agent and the Bond Insurer.
Section 10.3. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.2
shall execute, acknowledge, and deliver to the Company, the Indenture Trustee,
the Bond Insurer, and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
Trustee (if acceptable to the Bond Insurer), without any further act, deed, or
conveyance, shall become fully vested with all the rights, powers, duties, and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and moneys held by it under this Agreement; and the
Company 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
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successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Company shall mail notice of the successor of such
Owner Trustee to all Certificateholders, the Indenture Trustee, the Trust Paying
Agent, the Bondholders, the Bond Insurer and the Rating Agencies. If the Company
fails to mail such notice within 10 days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of the Company.
Section 10.4. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated or any corporation resulting from
any merger, conversion, or consolidation to which the Owner Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the successor of the
Owner Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 10.1, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided further that the Owner Trustee shall mail notice of
such merger or consolidation to the Rating Agencies.
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Section 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Owner Trust Estate or any Mortgaged Property may at the
time be located, and for the purpose of performing certain duties and
obligations of the Owner Trustee with respect to the Trust and the Certificates,
the Owner Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee and
acceptable to the Bond Insurer to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights, and trusts as the Bond
Insurer and the Owner Trustee may consider necessary or desirable. No co-trustee
or separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provision and
conditions:
(i) 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-
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trustee is not authorized to act separately
without the Owner Trustee joining in such
act), except to the extent that under any
law of any jurisdiction in which any
particular act or acts are to be performed,
the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in
which event such rights, powers, duties, and
obligations (including the holding of title
to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and
performed singly by such separate trustee or
co-trustee, but solely at the direction of
the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or
omission of any other trustee under this
Agreement; and
(iii) 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 the separate trustees and
co-trustees, as if given to each of them. Every instrument appointing any
separate trustee or co-trustee, other than this Agreement, shall refer to this
Agreement and to the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of appointment, shall be vested with the estates
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee.
Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its Agent or attorney-in-fact with full power
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and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its 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 trustee.
ARTICLE XI
CONTRIBUTION OF MORTGAGE LOANS
Section 11.1. Agreement to Contribute and Convey.
The Issuer will deliver the net proceeds from the sale of the
Bonds and issue the Certificates to the order of the Company or its designee in
consideration of the transfer of the Mortgage Loans and the related rights
thereunder and the rights pursuant to the Sales Agreement (collectively, the
"Consideration"). As and for the Consideration and subject to the terms and
conditions set forth herein, the Company agrees to contribute and convey, and
the Trust agrees to accept and acquire, all of the Company's right, title, and
interest in and to the Mortgage Loans identified on the schedule (the "Loan
Schedule") annexed hereto as Exhibit E. The Loan Schedule will set forth as to
each Mortgage Loan the items specified in the definition of "Loan Schedule" in
the Indenture.
The aggregate of the principal balances of the Mortgage Loans
being contributed and conveyed pursuant to this Agreement as of the close of
business on the applicable Cut-off Dates, after application of all payments of
principal received in respect of such Mortgage Loans before the applicable
Cut-off Dates (the "Initial Pool
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Balance"), is set forth on the Cross Receipt executed concurrently herewith in
the form of Exhibit F attached hereto (the "Cross Receipt"). Simultaneously with
and in consideration of the Company's contribution and conveyance of the
Mortgage Loans to the Trust, the Trust shall cause the Bonds to be issued and
delivered and shall transfer the net proceeds received from the sale of the
Bonds to be delivered to the Company and the Trust shall cause the Certificates
to be issued to the order of the Company or its designee. The Company shall be
deemed automatically and for all purposes to have made a contribution to the
capital of the Trust (which contribution shall be reflected in the value
assigned to the certificates evidencing equity interests in the Trust) in an
aggregate amount specified on the Cross Receipt. The transfer and conveyance of
the Mortgage Loans shall take place on the Closing Date.
Section 11.2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
delivery of the Mortgage Loan File (as defined in the
Sales Agreement) for each Mortgage Loan pursuant to
subsection (c) below, the Company does hereby
contribute, assign, transfer, and otherwise convey to
the Trust, without recourse, representation, or
warranty (other than as expressly set forth in
Section 2.10 (a) hereof), and the Trust does hereby
accept, assume, and acquire, all of the Company's
right, title, and interest in and to the Mortgage
Loans identified on the Loan Schedule, and the Trust
hereby assumes and agrees to perform and be bound by
each and all of the covenants, agreements, duties,
and obligations of the Company arising under or
relating to such Mortgage Loans.
(b) The Trust and its assignees shall be entitled to
receive all payments of principal and interest due on
or with respect to the Mortgage Loans after the
applicable Cut-off Date, and all other recoveries of
principal and interest collected on or after the
applicable Cut-off Date (other than in respect of
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interest that accrued on such Mortgage Loan during
periods prior to the applicable Cut-off Date), and
each of the rights of the Company pursuant to
representations, warranties, and indemnities in favor
of the Company contained in the Sales Agreement. All
payments of interest and principal due before the
applicable Cut-off Date, but collected after the
applicable Cut-off Date, and recoveries of principal
and interest collected before the applicable Cut-off
Date (other than amounts representing interest that
accrued on the Mortgage Loans during any period on or
after the applicable Cut-off Date), shall belong to,
and be promptly remitted to, _____________________.
(c) In connection with its contribution and conveyance of
the Mortgage Loans pursuant to subsection (a) above,
the terms of the Sales Agreement govern the delivery
of the Mortgage Loan Files to the Indenture Trustee,
as the Trust's designee, and the Company assigns all
of its rights under the Sales Agreement to the Trust.
(d) In connection with its conveyance of the Mortgage
Loans pursuant to subsection (a) above, the Company
shall deliver to the Trust or its designee in
respect of such Mortgage Loans, on or before the
Closing Date, all amounts, if any, received on each
Mortgage Loan on or after the applicable Cut-off
Date (other than amounts representing interest and
principal due on or prior to the applicable Cut-off
Date) held by or on behalf of the Company.
(e) The Company shall, at any time upon the request of
the Trust, without limiting the obligations of the
Company under this Agreement, execute, acknowledge,
and deliver all such additional documents and
instruments and all such further assurances and will
do or cause to be done all such further acts and
things as may be proper or reasonably necessary to
carry out the intent of this Agreement.
Section 11.3. Assignment of Related Rights and Remedies.
(a) Effective as of the Closing Date, subject only to
delivery of the Mortgage Loan File for each Mortgage
Loan pursuant to Section 11.2(c) hereof, the Company
does hereby assign, transfer, and otherwise convey to
Trust, without recourse, representation, or warranty
(other than as expressly set forth in Section 2.10(a)
hereof), and the Trust does hereby accept, assume,
and acquire, to be held jointly and severally with
the Company, all of the Company's rights and remedies
under the Sales Agreement and the Trust hereby
assumes
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and agrees to perform and be bound by each and all of
the covenants and agreements of the Company arising
under the Sales Agreement relating to such rights and
remedies and the exercise or enforcement thereof.
(b) Simultaneously with the exercise of any rights and
remedies or any notices given to ________________ by
the Trust under the Sales Agreement, the Trust shall
give the Company and the Bond Insurer notice thereof,
including, without limitation, copies of all notices
given to ________________________.
(c) This Section 11.3 provides the sole remedies
available to the Trust, its successors and assignees,
respecting any breach (i) of representations and
warranties with respect to the Mortgage Loans to
which reference is made in Section 2.10(c) or (ii) on
the part of the Company under Section 2(c) hereof.
Section 11.4. Closing.
The closing of the conveyance of the Mortgage Loans (the
"Closing") shall be held at the offices of _____________________________________
________________________________________, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All terms and conditions of this Agreement required
to be complied with on or before the Closing Date
shall have been complied with and the Company shall
have the ability to comply with all terms and
conditions and perform all duties and obligations
required to be complied with or performed after the
Closing Date.
(b) The Trust shall have paid all costs and expenses
payable by it to the Company or otherwise pursuant to
this Agreement.
Both parties shall use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Trust to
acquire the Mortgage Loans on the Closing Date. Notwithstanding the foregoing,
satisfaction by the Company or Trust
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of its respective obligations under the foregoing provisions of this Section
11.4 shall not be conditions precedent to the obligation of the Company or
Trust, respectively, to close the transactions contemplated by this Agreement.
Section 11.5. Servicing.
As of the applicable Cut-off Date, the Mortgage Loans will be
serviced by _________________________ (in such capacity, the "Servicer")
pursuant to the terms of a Servicing Agreement, to be dated as of __________ 1,
199__ (the "Servicing Agreement"), by and among the Trust, the Servicer and the
Indenture Trustee.
Section 11.6. Grant of a Security Interest.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Company to the Trust as provided in
Section 11.2(a) hereof be, and be construed as, a complete and absolute transfer
by the Company to the Trust of all of the Company's right, title, and interest
in and to the Mortgage Loans and not as a pledge of the Mortgage Loans by the
Company to the Trust to secure a debt or other obligation of the Company.
However, if, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Company, then (a) it is the
express intent of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Company to the Trust to secure a debt or other obligation
of the Company, and (b) (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Article 9 of the ______________ Uniform
Commercial Code; (ii) the conveyance provided for in Section 11.2(a) hereof
shall be deemed to
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be a grant by the Company to the Trust of a security interest in all of the
Company's right, title and interest in and to the Mortgage Loans, and all
amounts payable to the holder of the Mortgage Loans in accordance with the terms
thereof, and all proceeds of the conversion, voluntary, or involuntary, of the
foregoing into cash, instruments, securities, or other property, including
without limitation all such amounts, other than investment earnings from time to
time held or invested pursuant to and in accordance with the provisions of the
Servicing Agreement or the Indenture, as applicable, whether in the form of
cash, instruments, securities, or other property; (iii) the subsequent pledge of
the Mortgage Loans by the Trust to the Indenture Trustee as contemplated by the
preamble hereto shall be deemed to be an assignment of any security interest
created hereunder; (iv) the possession by the Company or the Trust or any of
their respective agents, including, without limitation, the Indenture Trustee or
its agent, of the notes or other instruments evidencing the indebtedness of the
mortgagors under the related Mortgage Loans (the "Mortgage Bonds") and such
other items of property relating to the Mortgage Loans as constitute
instruments, money, negotiable documents, or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the ____________ Uniform Commercial Code;
and (v) notifications to persons (other than the Indenture Trustee) holding such
property, and acknowledgments, receipts, or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts,
or
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confirmations from, financial intermediaries, bailees, or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Company and the Trust shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Indenture..
ARTICLE XII
MANAGEMENT OF THE TRUST
Section 12.1. Powers and Duties of the Bond Administrator.
(a) The Bond Administrator shall perform, on behalf of
the Trust acting through the Owner Trustee, the
duties of the Trust under the Indenture specified
below, and shall consult with the Owner Trustee
regarding such duties. The duties referred to above
are as follows (section references are to sections of
the Indenture):
(i) The determination of the form of the Bonds
(Section 2.01);
(ii) Directing the Owner Trustee to execute the Bonds
for the Trust and to return them to the
Indenture Trustee for authentication and
delivery (Section 2.05);
(iii) Direction of the Owner Trustee to execute and
deliver Bonds for registration of transfer and
exchange (Section 2.06);
(iv) Direction of the Owner Trustee as to actions
to be taken with respect to Bonds alleged to
have been lost, stolen, destroyed or
mutilated (Section 2.07);
(v) Maintenance of Bond Registrar's office and
designation of any offices where Bonds may be
presented or surrendered (Section 3.02);
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(vi) If an additional Trust Paying Agent is to be
appointed, the solicitation and review of bids,
examination of the qualifications of bidders,
and submission to the Owner Trustee of a list of
candidates from which such appointment may be
made by the Owner Trustee; preparation and
submission to each such Trust Paying Agent for
execution of an agreement to the effect that
such Trust Paying Agent holds funds in trust;
the direction of a Trust Paying Agent to remit
all funds it is holding to the Indenture
Trustee; the direction of the Indenture Trustee
to deposit moneys with such Trust Paying Agent;
and notifications to Holders of Bonds of
availability of their last payments (Section
3.03);
(vii) The monitoring of and compliance with the
Trust's obligations under Section 3.07(c)
(Section 3.07(c));
(viii) The monitoring of and compliance with the
Trust's obligations under Sections 3.12 (but
only to the extent of the Bond
Administrator's obligations under Section
(b)(i) hereof) and 3.13 of the Indenture
(Sections 3.11 and 3.13);
(ix) If necessary, the preparation and, upon
execution by the Owner Trustee, delivery and
(as necessary) filing of documents necessary
for the satisfaction and discharge of the
Indenture, except that, in the case of a
redemption, the party calling for the
redemption would be responsible for these
matters (Section 4.01);
(x) Direction of Owner Trustee in connection with
anything required of the Issuer relating to the
appointment of any co-Trustees (Section 6.13);
(xi) If an Authenticating Agent is to be
appointed, the solicitation and review of
bids, examination of the qualifications of
bidders, and submission to the Owner Trustee
of a list of qualified candidates from which
such appointment may be made by the Owner
Trustee (Section 6.14);
(xii) Furnishing to the Indenture Trustee the names
and addresses of Bondholders to the extent
required by Section 7.01 (Section 7.01);
(xiii) [Preparing for execution by the Owner Trustee,
direction to the Owner Trustee regarding
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execution, and filing reports with the
Securities and Exchange Commission (Section
7.04);]
(xiv) Direction of the Owner Trustee's execution
of documents, if any, as provided by the
Servicer as necessary to reconvey title to
repurchased Mortgage Loans to _____ (Section
8.05);
(xv) Appointment of any Custodian and ensuring
Custodian complies with all applicable
duties Section 8.13); and
(xvi) Notifying the Owner Trustee when the Bond
Administrator is of the opinion that a
Supplemental Indenture may be necessary or
appropriate and determining, based on advice
of counsel, whether notations of amendments
should be made on Bond Certificates
(Sections 9.01, 9.02, and 9.06).
(b) The Bond Administrator shall, subject at all times to
Section 12.5 of this Agreement, take all appropriate
action with respect to the following tasks, inter
alia:
(i) The preparation and delivery of the income
tax returns, tax elections, financial
statements, and such annual or other reports
of the Trust pursuant to Section 2.11 (k)
hereof; provided however, that the Bond
Administrator shall not be required to
compute the Trust's gross income except to
the extent it can do so without unreasonable
effort or expense based upon income
statements furnished to it; and
(ii) The review of documentation in connection
with transfers of the Bonds, in the
preparation and delivery of Bonds and the
determination of whether a proposed transfer
of a Bond is permissible under the terms of
the Indenture.
(c) The Bond Administrator shall carry out in timely
fashion, and in accordance with the provisions of the
Indenture, all duties which the Bond Administrator is
required to perform under the Indenture on behalf of
the Issuer pursuant to the terms of this Agreement.
The Bond Administrator shall have absolute discretion
in the performance of the function set forth in this
subsection (c) and shall have no obligation to notify
the Owner Trustee of its actions except as set forth
in the Indenture.
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(d) [In addition to the filings required under Section
12.1(a)(xiii) above, as soon as practicable, but not
later than eighteen months after ____________, 199__,
the Bond Administrator shall prepare, direct the
Owner Trustee as to the execution of, and file with
the Securities and Exchange Commission a report on
Form 8- K containing a copy of the annual Payment
Date Statement described in Section 2.08 of the
Indenture.]
(e) The Indenture Trustee hereby agrees that it will not
take any action that is not related to the
administration of the Trust Estate to (i) impair the
validity or effectiveness of the Indenture or the
Grant of the Trust Estate thereunder or release any
Person from any covenant or obligation under the
Indenture, except as expressly permitted thereby,
(ii) creating any lien, charge, security interest, or
similar encumbrance (other than the lien of the
Indenture or other permitted encumbrance or as
otherwise permitted under the provisions of the
Indenture) on the Trust Estate, or (iii) cause the
lien of the Indenture not to constitute a valid
perfected first priority security interest in the
Trust Estate, except as otherwise expressly permitted
under the Indenture. The Indenture Trustee shall, in
connection with its tax reporting obligations under
Section (b)(i) above, comply with the provisions of
Section 2.11 hereof and shall not take any action
that, to the actual knowledge of the Bond
Administrator, would result in the Issuer becoming
taxable as a corporation for federal income tax
purposes.
Section 12.2. Compensation; Payment of Certain Expenses.
The Bond Administrator will provide the services called for
under the enumerated subparagraphs of paragraphs 12.1(a), 12.1(b), and 12.1(d)
hereof above without any separate compensation therefor for so long as the
Indenture remains in effect and thereafter shall receive monthly compensation
equal to the Indenture Trustee Fee payable under the Indenture from amounts
otherwise payable to the Certificateholders as provided in the this Agreement.
The Bond Administrator shall perform any other services as may be agreed between
the Bond Administrator and the Owner Trustee for such
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compensation as may be agreed between the Bond Administrator and the Owner
Trustee; provided that such compensation shall be paid to the Bond Administrator
by the Owner Trustee solely from funds received by the Owner Trustee from the
Owners pursuant to the this Agreement. If the date of termination of this
Agreement is not a date on which the Bond Administrator is entitled to be paid
hereunder, the Bond Administrator shall be paid the amount due it pursuant to
this Sections and Section 12.5(a) as of such termination promptly after such
date of termination.
Section 12.3. Instruction of the Owner Trustee.
If in performing its duties under this Agreement, the Bond
Administrator is required to determine any matter or perform any function above
which is non-ministerial in nature, then the Bond Administrator shall properly
deliver notice to the Owner Trustee and the Certificateholders requesting
written instructions as to the course of action to be taken. The
Certificateholders shall instruct the Bond Administrator in writing as to the
action to be taken by the Bond Administrator. If the Bond Administrator does not
receive such instructions within ten days after it has delivered such notice, it
may, but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Agreement or the Indenture as it shall deem advisable in
the best interest of the holders of the Bonds and the Trust.
Section 12.4. Benefit of the Agreement.
It is expressly agreed that in performing its duties pursuant
to Section 12.1 of this Agreement the Bond Administrator
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will act for the benefit of holders of the Bonds and the Bond Insurer as well as
for the benefit of the Trust, and that such obligations on the part of the Bond
Administrator shall be enforceable at the instance of the Indenture Trustee and
the Trust.
Section 12.5. Limitation of Responsibility of the Bond Administrator.
(a) The Bond Administrator will have no responsibility
under this Agreement other than to render the
services provided for hereunder in good faith. The
Bond Administrator, its affiliates, its directors,
officers, shareholders, and employees will not be
liable to the Trust, the Owner Trustee, the Indenture
Trustee, the Bondholders, or others, except by reason
of acts constituting bad faith, willful misfeasance,
gross negligence, or reckless disregard of the duties
of the Bond Administrator hereunder. The Owner
Trustee will reimburse, indemnify, and hold harmless
the Bond Administrator and its affiliates,
shareholders, directors, officers, and employees with
respect to all expenses, losses, damages,
liabilities, demands, charges, and claims of any
nature in respect of any acts or omissions performed
or omitted by the Bond Administrator in good faith
and in accordance with the standard set forth above.
(b) The Trust undertakes to pay or cause to be paid any
amount due the Bond Administrator or its affiliates,
shareholders, directors, officers and employees,
under Section 12.2 or Section 12.5(a) and such
amounts shall be paid as provided for under the
Indenture or out of the assets of the Trust that are
free of the lien of the Indenture (and in no event by
_______________________ in its individual capacity).
Section 12.6. Termination of Bond Administrator.
(a) The Bond Administrator, at its election, may resign
as Bond Administrator hereunder and be discharged of
its duties hereunder upon at least 30 days' prior
notice to the Owner Trustee, the Bond Insurer, and
the Indenture Trustee; provided however, that at any
time while the Bonds are outstanding no such
resignation and discharge shall become effective
until a Person selected by the Bond Administrator in
its discretion and acceptable to the Owners, the Bond
Insurer, and the Rating Agencies shall have assumed
and agreed to perform the duties of the Bond
Administrator hereunder
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as evidenced by a written instrument to such effect
delivered to the Owner Trustee. Upon delivery of such
written instrument to the Owner Trustee, the Trust
shall promptly deliver to the successor Bond
Administrator a written instrument acknowledging and
accepting the assignment of the resigning Bond
Administrator's rights hereunder to the successor
Bond Administrator. Each such successor Bond
Administrator shall be deemed to be the Bond
Administrator for all purposes of this Agreement.
(b) If any of the following events shall occur and be
continuing:
(i) The Bond Administrator shall violate any
provision of this Agreement and such default
is not cured within ten days after notice
thereof is given to the Bond Administrator
by the Owner Trustee, [the Bond Insurer,] or
the Indenture Trustee;
(ii) A court having jurisdiction over the
premises shall enter a decree or order for
relief in respect of the Bond Administrator
in an involuntary case under any applicable
bankruptcy, insolvency, or other similar law
now or hereafter in effect, or appoint a
receiver, liquidation, assignee, custodian,
trustee, sequestrator (or other similar
official) of the Bond Administrator or for
any substantial part of its property, or
order the winding-up or liquidation of its
affairs; or
(iii) The Bond Administrator shall commence a
voluntary case under any applicable
bankruptcy, insolvency, or other similar law
now or hereafter in effect, or shall consent
to the entry of an order for relief in an
involuntary case under any such law, or
shall consent to the appointment of or
taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator
(or other similar official) of the Bond
Administrator or for any substantial part of
its property, or shall make any general
assignment for the benefit of creditors, or
shall fail generally to pay its debts as
they become due,
then in any such event this Agreement may be terminated by the Owner Trustee
upon notice to the Bond Administrator; provided however, that
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the Bond Administrator shall nevertheless be entitled to any amounts due to it
pursuant to Sections 12.2 and 12.5 accruing prior to the date of such
termination.
(c) Following receipt of instructions from [the Bond
Insurer or] the owners of the Bonds[, with the prior
consent of the Bond Insurer, and] upon 30 days'
written notice to the Bond Administrator, the Owner
Trustee may remove the Bond Administrator; provided
however, that the Bond Administrator shall
nevertheless be entitled to any amounts due to it
pursuant to Sections 12.2 and 12.5 accruing prior to
the date of such termination.
Section 12.7. Bankruptcy Matters.
The Bond Administrator shall not take any action to cause the
Trust to dissolve in whole or in part or file a voluntary petition or otherwise
initiate proceedings to have the Trust adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings against the
Trust, or file a petition seeking or consenting to reorganization or relief of
the Trust, as debtor, under any applicable federal or state law relating to
bankruptcy, insolvency, or other relief for debtors with respect to the Trust;
or seek or consent to the appointment of any trustee, receiver, conservator,
assignee, sequestrator, custodian, liquidator (or other similar official) of the
Trust or of all or any substantial part of the properties and assets of the
Trust, or cause the Trust to make any general assignment for the benefit of
creditors of the Trust, or take any action in furtherance of any of the above
actions.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Supplements and Amendments.
This Agreement may be amended by the Company and the Owner
Trustee, [with the prior consent of the Bond Insurer,] and with prior
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written notice to the Rating Agencies, but to cure any ambiguity, to correct or
supplement any provisions in this Agreement, or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement without the consent of any of the Bondholders or the
Certificateholders or the Indenture Trustee, or of modifying in any manner the
rights of the Bondholders or the Certificateholders; provided however, such
action shall not adversely affect in any material respect the interests of any
Bondholder or Certificateholder or the rights of the Bond Insurer. An amendment
described above shall be deemed not to adversely affect in any material respect
the interests of any Bondholder or Certificateholder if the party requesting the
amendment satisfies the Rating Agency Condition with respect to such amendment.
This Agreement may also be amended from time to time by the
Company and the Owner Trustee, with the prior written consent of the Rating
Agencies and with the prior written consent of the Indenture Trustee, [the Bond
Insurer,] the Holders (as defined in the Indenture) of Bonds evidencing more
than 50% of the Outstanding Amount of the Bonds, the Holders of Certificates
evidencing more than 50% of the Percentage Interests of the Trust Interest and
if the party requesting such amendment satisfies the Rating Agency Condition
with respect to such amendment, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Bondholders or the
Certificateholders; provided however, no such amendment shall (a) increase or
reduce in any manner the amount
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of, or accelerate or delay the timing of, collections of payments on the
Mortgage Loans or distributions that shall be required to be made for the
benefit of the Bondholders, the Certificateholders [or the Bond Insurer,] or (b)
reduce the aforesaid percentage of the Outstanding Amount of the Bonds or the
Percentage Interests required to consent to any such amendment, in either case
of clause (a) or (b) without the consent of the holders of all the outstanding
Bonds [and the Bond Insurer,] and in the case of clause (b) without the consent
of the Holders of all the outstanding Certificates.
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 each Certificateholder, the Indenture Trustee[, the Bond
Insurer] and each of the Rating Agencies.
It shall not be necessary for the consent of
Certificateholders, the Bondholders, or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
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Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
Prior to the execution of any amendment to this Agreement or
the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties, or immunities under this Agreement or otherwise.
Section 13.2. No Legal Title to Owner Trust Estate in Holders.
The Certificateholders shall not have legal title to any part
of the Owner Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the Trust 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 13.3. Limitations on Rights of Others.
Except for Section 2.7, the provisions of this Agreement are
solely for the benefit of the Owner Trustee, the Company, the
Certificateholders, [the Bond Insurer,] and to the extent expressly provided
herein, the Indenture Trustee and the Bondholders, and
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78
nothing in this Agreement (other than Section 2.7), 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
Agreement or any covenants, conditions, or provisions contained herein.
Section 13.4. Notices.
(a) Unless otherwise expressly specified or permitted by
the terms hereof, all communications provided for or
permitted hereunder shall be in writing and shall be
deemed to have been given if (1) personally
delivered, (2) upon receipt by the intended
recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except
that notice to the Owner Trustee shall be deemed
given only upon actual receipt by the Owner
Trustee), (3) sent by express courier delivery
service and received by the intended recipient, or
(4) except with respect to notices sent to the Owner
Trustee, transmitted by telex or facsimile
transmission (or any other type of electronic
transmission agreed upon by the parties and
confirmed by a writing delivered by any of the means
described in (1), (2) or (3), at the following
addresses: (i) if to the Owner Trustee, its
Corporate Trust Office; (ii) if to the Company,
____________________________________, Attention:
__________, Telecopy: ______; (iii) if to the Bond
Insurer, ____________________________________,
Attention: __________, Telecopy: ______; (iv) if to
the Trust Paying Agent, ___________________________,
Attention: __________, Telecopy: ______; (v) if to
_____________________, Attention: __________,
Telecopy: ______ or, as to each such 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 Agreement shall be conclusively
presumed to have been duly given, whether or not the
Certificateholder receives such notice.
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79
Section 13.5. Severability.
Any provision of this 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 13.6. Separate Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 13.7. Successors and Assigns.
All covenants and agreements contained herein shall be binding
upon, and inure to the benefit of, the Company, [the Bond Insurer,] the Owner
Trustee, and its successors and each owner and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent,
waiver, or other instrument or action by a Certificateholder shall bind the
successors and assigns of such Certificateholder.
Section 13.8. No Petition.
The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Bondholder by accepting the benefits of this Agreement, hereby covenant and
agree that they will not at any time
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80
institute against the Company or the Trust, or join in any institution against
the Company or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or law in connection with any obligations
relating to the Certificates, the Bonds, this Agreement, or any of the Basic
Documents.
Section 13.9. No Recourse.
Each Certificateholder by accepting a Certificate acknowledges
that such Certificateholder's Certificate represents a beneficial interest in
the Trust only and does not represent an interest in or an obligation of the
Servicer, the Company, the Owner 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 Agreement, the Certificates, or the
Basic Documents.
Section 13.10. 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 13.11. GOVERNING LAW.
THIS 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.
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81
[Section 13.12. Grant of Certificateholder Rights to Bond Insurer.
(a) In consideration for the issuance of the Certificates
and for the guarantee of the Bonds by the Bond
Insurer pursuant to the Insurance Policy, the
holders of the Certificates hereby grant to the Bond
Insurer the right to act as the holder of 100% of
the outstanding Certificates for the purpose of
exercising the rights of the Certificateholders
under this Agreement without the consent of the
Certificateholders, including the voting rights of
such holders hereunder, but excluding those rights
requiring the consent of all such holders under
Section 13.1 and any rights of such holders to
distributions under Section 5.2(a); provided that
the preceding grant of rights to the Bond Insurer by
the holders of the Trust Interest shall be subject
to Section 13.14.
(b) The rights of the Bond Insurer to direct certain
actions and consent to certain actions of the
Certificateholders hereunder will terminate at such
time as the Balance of the Bonds has been reduced to
zero and the Bond Insurer has been reimbursed for any
amounts owed under the Insurance Policy and the
Insurance Agreement and the Bond Insurer has no
further obligation under the Insurance Policy.]
[Section 13.13. Third Party Beneficiary.
The Bond Insurer is an intended third-party beneficiary of
this Agreement, and this Agreement shall be binding upon and inure to the
benefit of the Bond Insurer; provided that, notwithstanding the foregoing, for
so long as a Bond Insurer Default is continuing with respect to its obligations
under the Bond Insurance Policy, the Bondholders shall succeed to the Bond
Insurer's rights hereunder. Without limiting the generality of the foregoing,
all covenants and agreements in this Agreement that expressly confer rights upon
the Bond Insurer shall be for the benefit of and run directly to the Bond
Insurer, and the Bond Insurer shall be entitled to rely on and
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enforce such covenants to the same extent as if it were a party to
this Agreement.]
[Section 13.14. Suspension and Termination of Bond Insurer's Rights.
During the continuation of a Bond Insurer Default, rights
granted or reserved to the Bond Insurer hereunder shall vest instead in the
Owners; provided that the Bond Insurer shall be entitled to any distributions in
reimbursement of the Bond Insurer Reimbursement Amount, and the Bond Insurer
shall retain those rights under Section 13.1 to consent to any amendment of this
Agreement.
At such time as either (i) the Bond Balance of the Bonds has
been reduced to zero or (ii) the Insurance Policy has been terminated and in
either case of (i) or (ii) the Bond Insurer has been reimbursed for all amounts
owed under the Insurance Policy and the Insurance Agreement (and the Bond
Insurer no longer has any obligation under the Insurance Policy, except for
breach thereof by the Bond Insurer), then the rights and benefits granted or
reserved to the Bond Insurer hereunder (including the rights to direct certain
actions and receive certain notices) shall terminate and the Certificateholders
shall be entitled to the exercise of such rights and to receive such benefits of
the Bond Insurer following such termination to the extent that such rights and
benefits are applicable to the Certificateholders.]
[Signatures follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Deposit Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
UNION PLANTERS MORTGAGE FINANCE
CORP., as Depositor
By:
______________________________
Name:
______________________________
Title:
______________________________
______________________________, in
its individual capacity only as
specifically set forth herein and
otherwise not in its individual
capacity, but solely as Owner
Trustee
By:
_________________________________
Authorized Signatory
The Trust Paying Agent hereby acknowledges its appointment as
Trust Paying Agent under this Agreement and agrees to act in such capacity as
described herein and as Bond Administrator.
____________________________________
By:
______________________________
Name:
______________________________
Title:
______________________________
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The Servicer hereby acknowledges its obligations under this
Agreement and agrees to act in accordance therewith.
___________________________________
By:
_____________________________
Name:
_____________________________
Title:
_____________________________
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EXHIBIT A-1
TO THE TRUST AGREEMENT
(FORM OF CERTIFICATE)
A-1
86
THE EQUITY INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THIS EQUITY INTEREST MAY BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE
HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN
THE MEANING OF RULE 3A-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(INCLUDING, BUT NOT LIMITED TO, ________________________________) IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH
LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS EQUITY INTEREST UNDER THE ACT OR
ANY STATE SECURITIES LAWS.
NO TRANSFER OF THIS CERTIFICATE OR ANY BENEFICIAL INTEREST THEREIN SHALL BE MADE
TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS RECEIVED A CERTIFICATE FROM THE
TRANSFEREE TO THE EFFECT THAT SUCH TRANSFEREE (I) IS NOT A PERSON WHICH IS AN
EMPLOYEE BENEFIT PLAN, TRUST OR ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF
THE CODE OR A GOVERNMENTAL PLAN, DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (ANY SUCH PERSON BEING A "PLAN") AND
(II) IS NOT AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE ACCOUNT OR
GENERAL ACCOUNT, WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, OR OTHERWISE DISPOSED OF UNLESS,
PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER TRUSTEE
AND THE CERTIFICATE REGISTRAR A CERTIFICATE STATING THAT SUCH TRANSFEREE (A)
AGREES TO BE BOUND BY AND TO ABIDE BY THE TRANSFER RESTRICTIONS APPLICABLE TO
THIS CERTIFICATE; (B) IS NOT AN ENTITY THAT WILL HOLD THIS CERTIFICATE AS
NOMINEE TO FACILITATE THE CLEARANCE AND SETTLEMENT OF SUCH SECURITY THROUGH
ELECTRONIC BOOK-ENTRY CHANGES IN ACCOUNTS OF PARTICIPATING ORGANIZATIONS; AND
(C) UNDERSTANDS THAT IT MUST TAKE INTO ACCOUNT ITS PERCENTAGE INTEREST OF THE
TAXABLE INCOME RELATING TO THIS CERTIFICATE.
A-2
87
UNION PLANTERS MORTGAGE FINANCE 199 -
CERTIFICATE
No. 0001
THIS CERTIFIES THAT ______________________ (the "Owner") is
the registered owner of a 100% Percentage Interest of the Trust Interest in
Union Planters Mortgage Finance Trust 199__-____ (the "Trust") existing under
the laws of the State of Delaware and created pursuant to that certain Deposit
Trust Agreement, dated as of __________ 1, 199__ (the "Trust Agreement"), among
Union Planters Mortgage Finance Corp., as Depositor, ___________________________
__________________, in its individual capacity and in its fiduciary capacity as
Owner Trustee under the Trust Agreement (the "Owner Trustee"), _________________
________________________________________, as Trust Paying Agent and Bond
Administrator, and _________________ _____________________________, as Servicer.
Capitalized terms used but not otherwise defined herein have the meanings
assigned to such terms in the Trust Agreement. The Owner Trustee, on behalf of
the Issuer and not in its individual capacity, has executed this Certificate by
one of its duly authorized signatories as set forth below. This Certificate is
one of the Certificates referred to in the Trust Agreement and is issued under
and is subject to the terms, provisions, and conditions of the Trust Agreement
to which the holder of this Certificate by virtue of the acceptance hereof
agrees and by which the holder hereof is bound. Reference is hereby made to the
Trust Agreement for the rights of the holder of this Certificate, as
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well as for the terms and conditions of the Trust created by the Trust
Agreement.
The holder, by its acceptance hereof, agrees not to transfer
this Certificate except in accordance with terms and provisions of the
Agreement.
A-4
89
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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.
UNION PLANTERS MORTGAGE FINANCE
TRUST 199___-___
By: ________________________, not
in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:
____________________________________
Authorized Signatory
DATED: , 199
_________________ ___ __
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
____________________________________
as Authenticating Agent
By:
_______________________________
Authorized Signatory
A-5
90
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 Instrument, and all rights thereunder, hereby irrevocably
constituting and appointing __________ Attorney to transfer said Instrument on
the books of the Certificate Registrar, with full power of substitution in the
premises.
Dated:
____________________________
*/
________________________
Signature Guaranteed:
*/
________________________
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Instrument in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
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EXHIBIT B
TO THE TRUST AGREEMENT
CERTIFICATE OF TRUST OF
UNION PLANTERS MORTGAGE FINANCE TRUST 199___-___
THIS CERTIFICATE OF TRUST OF UNION PLANTERS MORTGAGE FINANCE
TRUST 199___-___ (the "Trust"), dated as of _____________ __, 199___, is being
duly executed and filed by ____________________, a _______________, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. Code, S
3801 et seq.).
1. Name. The name of the business trust formed hereby
is UNION PLANTERS MORTGAGE FINANCE TRUST 199___-___.
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware is _________________________
______________________________________________________________________________.
Attention:____________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
_______________________________, not
in its individual capacity but
solely as Owner Trustee under a
Deposit Trust Agreement, dated as of
________ 1, 199_
By:
______________________________________
Name:
_____________________________________
Title:
____________________________________
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EXHIBIT C
FORM OF INVESTMENT LETTER
___________, 1997
Union Planters Mortgage Finance Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[OWNER TRUSTEE]
[ADDRESS]
Re: Union Planters Mortgage Finance Trust 199__-__ (the
"Issuer") Collateralized Mortgage Bonds
Ladies and Gentlemen:
___________________________________________________ (the
"Holder") has purchased or acquired, or intends to purchase or acquire from
______________, the current Holder (the "Current Holder"), a Certificate
representing a ___% Percentage Interest (the "__% Certificate") in the Trust
Interest for the referenced Issuer, which represents an interest in the Issuer
created pursuant to that certain Deposit Trust Agreement, dated as of
______________ 1, 199__ (the "Trust Agreement"), among Union Planters Mortgage
Finance Corp., as Depositor, _______________, as Owner Trustee, _______________,
as Trust Paying Agent and Bond Administrator, and _______________, as Servicer.
Capitalized terms used and not otherwise defined herein have the meanings
assigned to such terms in the Trust Agreement.
CERTIFICATION
The undersigned, as an authorized officer or agent of the
Holder, hereby certifies, represents, warrants, and agrees on behalf of the
Holder as follows:
1. The Holder is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was formed and is
authorized to invest in the __% Certificate. The person executing this letter on
behalf of the Holder is duly authorized to do so on behalf of the Holder.
2. The Holder hereby acknowledges that no transfer of the __%
Certificate may be made unless such transfer is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and applicable state securities laws, or is made in accordance with the
Securities Act and such laws.
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3. The Holder understands that the __% Certificate has not
been and will not be registered under the Securities Act and may be offered,
sold, pledged or otherwise transferred only to a person whom the transferor
reasonably believes is (A) a qualified institutional buyer (as defined in Rule
144A under the Securities Act) or (B) a Person involved in the organization or
operation of the Trust or an affiliate of such Person, in a transaction meeting
the requirements of Rule 144A under the Securities Act and in accordance with
any applicable securities laws of any state of the United States. The Holder
understands that the __% Certificate bears a legend to the foregoing effect.
4. The Holder is acquiring the __% Certificate for its own
account or for accounts for which it exercises sole investment discretion, and
not with a view to or for sale or other transfer in connection with any
distribution of the __% Certificate in any manner that would violate Section 5
of the Securities Act or any applicable state securities laws, subject
nevertheless to any requirement of law that the disposition of the Holder's
property shall at all times be and remain within its control.
5. The Holder is (A) a "qualified institutional buyer" (a
"QIB") as defined in Rule 144A under the Securities Act, and is aware that the
transferor of the __% Certificate may be relying on the exemption from the
registration requirements of the Securities Act provided by Rule 144A and is
acquiring such __% Certificate for its own Account or for the Account of one or
more qualified institutional buyers for whom it is authorized to act, or (B) a
Person involved in the organization or operation of the Trust or an affiliate of
such Person within the meaning of Rule 3a-7 of the Investment Company Act of
1940, as amended (including, but not limited to, the Transferor). The Holder is
able to bear the economic risks of such an investment. The Holder is a QIB
because [STATE FACTUAL BASIS FOR QIB STATUS]
6. If the Holder sells or otherwise transfers the registered
ownership of such __% Certificate, the Holder will comply with the restrictions
and requirements with respect to the transfer of the ownership of the __%
Certificate under the Trust Agreement, and the Holder will obtain from any
subsequent purchaser or transferee substantially the same certifications,
representations, warranties and covenants as required under the Trust Agreement
in connection with such subsequent sale or transfer thereof.
7. The Holder is not an entity that will hold a __%
Certificate as nominee (a "Book Entry Nominee") to facilitate the clearance and
settlement of such security through electronic book-entry changes in Accounts or
participating organizations.
8. The Holder is not (i) is not a person which is an employee
benefit plan, trust or account subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code or
a governmental plan, defined in
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94
Section 3(32) of ERISA subject to any federal, state or local law which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (any
such person being a "plan") and (ii) is not an entity, including an insurance
company separate account or general account, whose underlying assets include
plan assets by reason of a plan's investment in the entity and is not directly
or indirectly purchasing such __% Certificate on behalf of, as investment
manager of, as named fiduciary of, as trustee of, or with assets of a Plan.
9. The Holder hereby agrees to indemnify each of the Issuer,
the Indenture Trustee and the Owner Trustee against any liability that may
result if the Holder's transfer of a __% Certificate (or any portion thereof) is
not exempt from the registration requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws. Such indemnification of the Issuer, the Owner Trustee shall
survive the termination of the related Trust Agreement.
IN WITNESS WHEREOF, the Holder has caused this instrument to
be executed on its behalf, pursuant to the authority of its Board of Directors,
by its duly authorized signatory this ___ day of _________, 199_.
[NAME OF HOLDER]
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
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EXHIBIT D
FEES AND EXPENSES OF OWNER TRUSTEE
D-1
96
EXHIBIT E
LOAN SCHEDULE
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ RECEIPT
[Attached]
F-1
98
UNION PLANTERS MORTGAGE FINANCE TRUST 199___-__
COLLATERALIZED MORTGAGE BONDS, SERIES 199___-__
CROSS RECEIPT BETWEEN UNION PLANTERS MORTGAGE FINANCE CO. AND UNION PLANTERS
MORTGAGE FINANCE TRUST 199___-__ ACKNOWLEDGING RECEIPT OF MORTGAGE BONDS
Reference is made to that certain Deposit Trust Agreement,
dated as of ______________ 1, 199__ (the "Trust Agreement"), among Union
Planters Mortgage Finance Co., as Depositor, ________________________, as Owner
Trustee, ___________________, as Trust Paying Agent and Bond Administrator, and
___________, as Servicer. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Trust Agreement.
The Trust hereby acknowledges receipt from the Company of the
Mortgage Bonds relating to the Mortgage Loans identified on the Loan Schedule
annexed as Exhibit E to the Trust Agreement (the "Mortgage Loans"). The Mortgage
Loans have an Initial Pool Balance of $_________________________.
UNION PLANTERS MORTGAGE FINANCE TRUST
199___-__
By: ________________________, not in
its individual capacity but solely as
Owner Trustee of the Trust
By: __________________________________
Authorized Signatory
The Company hereby acknowledges receipt of the Consideration for the
contribution of the Mortgage Loans by the Company to the Trust as specified in
the Trust Agreement. The Consideration consists of (a) $_______________________,
in immediately available funds, representing the aggregate net proceeds from the
sale of the Bonds delivered to the Placement Agent pursuant to the Placement
Agent Agreement, and (b) a Certificate, delivered to ____________________, a
____________________________, representing a 100% beneficial interest in the
Trust.
_________________________
By: ___________________________
Name:
Title:
Dated: ________ __ 199__
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