EXECUTION
AMERICAN RESIDENTIAL EAGLE BOND TRUST 1998-1
COLLATERALIZED CALLABLE MORTGAGE BONDS
DEPOSIT TRUST AGREEMENT
between
AMERICAN RESIDENTIAL EAGLE, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
dated as of June 1, 1998
American Residential Eagle Bond Trust 1998-1
Table of Contents
Page
ARTICLE I
DEFINITIONS
1.01. Definitions............................................................1
ARTICLE II
ORGANIZATION
2.01. Name...................................................................4
2.02. Office.................................................................4
2.03. Purpose and Powers.....................................................4
2.04. Appointment of the Owner Trustee.......................................5
2.05. Initial Capital Contribution; Declaration of Trust.....................5
2.06. Issuance of Initial Investor Certificate...............................5
2.07. Liability of the Holders of the Investor Certificates..................5
2.08. Situs of Trust.........................................................6
2.09. Title to Trust Property................................................6
2.10. Representations and Warranties of the Depositor........................6
2.11. Tax Treatment..........................................................6
2.12. Investment Company.....................................................7
ARTICLE III
THE INVESTOR CERTIFICATES
3.01. The Investor Certificates..............................................7
3.02. Authentication of Investor Certificates................................7
3.03. Registration of and Limitations on Transfer and Exchange of Investor
Certificates...........................................................7
3.04. Lost, Stolen, Mutilated or Destroyed Investor Certificates............10
3.05. Persons Deemed Certificateholders.....................................10
3.06. Access to List of Certificateholders' Names and Addresses.............10
3.07. Covenants of Certificateholders to Indemnify Indenture Trustee........11
3.08. Maintenance of Office or Agency.......................................11
3.09. Certificate Paying Agent..............................................11
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
4.01. Payments.12
4.02. Method of Payment.....................................................13
4.03. Tax Returns...........................................................14
4.04. Statements to Certificateholders......................................14
4.05. Reports to Internal Revenue Service and Others........................14
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE ACTION BY CERTIFICATEHOLDERS
5.01. General Authority.....................................................14
5.02. General Duties........................................................15
5.03. Action Upon Instruction...............................................15
5.04. No Duties Except as Specified under
Specified Documents or in Instructions................................15
5.05. Restrictions..........................................................16
5.06. Prior Notice to Certificateholders with Respect to Certain Matters....16
5.07. Action by Certificateholders with Respect to Certain Matters..........17
5.08. Action by Certificateholders with Respect to Bankruptcy...............17
5.09. Restrictions on Certificateholders' Power.............................17
5.10. Majority Control......................................................17
5.11. Optional Redemption...................................................18
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
6.01. Acceptance of Trusts and Duties.......................................18
6.02. Furnishing of Documents...............................................19
6.03. Books and Records.....................................................19
6.04. Representations and Warranties of the Bank............................19
6.05. Reliance; Advice of Counsel...........................................20
6.06. Not Acting in Individual Capacity.....................................21
ARTICLE VII
INDEMNIFICATION BY DEPOSITOR
7.01. Trust Expenses........................................................21
7.02. Indemnification.......................................................21
7.03. Compensation..........................................................22
7.04. Lien on Trust Estate..................................................22
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
8.01. Termination of Trust Agreement........................................22
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL TRUSTEES
9.01. Resignation of Owner Trustee; Appointment of Successor................23
9.02. Appointment of Additional Trustees....................................24
ARTICLE X
MISCELLANEOUS
10.01. Supplements and Amendments...........................................24
10.02. No Legal Title to Trust Estate in Certificateholders.................25
10.03. Pledge of Collateral by Owner Trustee Is Binding.....................25
10.04. Limitations on Rights of Others......................................25
10.05. Notices..............................................................25
10.06. Severability.........................................................25
10.07. Separate Counterparts................................................26
10.08. Successors and Assigns...............................................26
10.09. Headings.............................................................26
10.10. Governing Law........................................................26
10.11. No Petition..........................................................26
ARTICLE XI
OFFICERS
11.01. Appointment of Officers..............................................26
11.02. Officers to Provide Information to the Owner Trustee.................26
Exhibit A - Form of Investor Certificate
Exhibit B - Form of Management Agreement
Exhibit C - Form of Certificate of Trust
Exhibit D - Form of Rule 144A Investment Letter
Exhibit E - Certificate of Non-foreign Status
Exhibit F - Form of Investment Letter (Non-Rule 144A)
Exhibit G - Transfer Certificate
DEPOSIT TRUST AGREEMENT dated as of June 1, 1998, by and between American
Residential Eagle, Inc., a Delaware corporation, and Wilmington Trust Company,
a Delaware banking corporation.
WHEREAS, the Depositor and the Owner Trustee desire to enter into this
Trust Agreement.
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01. Definitions. For all purposes of this Agreement, the following terms
shall have the meanings set forth below:
"AGREEMENT" or "DEPOSIT TRUST AGREEMENT" means this Deposit Trust
Agreement and any amendments or modifications hereof.
"AMERICAN RESIDENTIAL" means American Residential Investment Trust, Inc.,
a Maryland corporation.
"AUTHORIZED OFFICER" means any officer of the Owner Trustee who is
authorized to act for the Owner Trustee and whose name appears on a list of
such authorized officers furnished by the Owner Trustee, as such list may be
amended or supplemented from time to time, and any Officer of the Trust who is
authorized to act pursuant to Section 11.01 of this Agreement and whose name
appears on a list furnished by the Depositor to the Owner Trustee and the Bond
Trustee, as such list may be amended or supplemented from time to time.
"BANK" means Wilmington Trust Company in its individual capacity and not
as Owner Trustee.
"BOND AGREEMENTS" mean the Indenture, the Master Servicing Agreement, the
Bonds and the Underwriting Agreement.
"BONDHOLDERS" mean the holders from time to time of the Bonds.
"BONDS" mean the American Residential Eagle Bond Trust 1998-1
Collateralized Callable Mortgage Bonds issued by the Trust under the Indenture.
"BUSINESS DAY" means any day that is not (i) a Saturday or a Sunday, or
(ii) a day on which banking institutions in the City of New York, the State of
California or the city of Wilmington, Delaware, are authorized or obligated by
law or executive order to be closed.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del.C. Section 3801 et seq, as the same may be amended from time to
time.
"CERTIFICATE DISTRIBUTION ACCOUNT" has the meaning specified in Section
3.09(c).
"CERTIFICATEHOLDER" or "HOLDER" means the Person in whose name an Investor
Certificate is registered in the Certificate Register except that, any Investor
Certificate registered in the name of the Issuer, the Owner Trustee or the
Indenture Trustee or any Affiliate of any of them shall be deemed not to be
outstanding and the registered Holder will not be considered a
Certificateholder or a Holder for purposes of giving any request, demand,
authorization, direction, notice, consent or waiver under the Indenture or the
Trust Agreement provided that, in determining whether the Indenture Trustee or
the Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Indenture Trustee or the Owner Trustee knows to be so owned shall be so
disregarded. Owners of Investor Certificates that have been pledged in
satisfaction of the Indenture Trustee or the Owner Trustee, as the case may be,
the pledgee's right so to act with respect to such Investor Certificates and
that the pledgee is not the Issuer, any other obligor upon the Investor
Certificates or any affiliate of any of the foregoing Persons.
"CERTIFICATE OF TRUST" means the Certificate of Trust to be filed by the
Owner Trustee for the Trust pursuant to Section 3810(a) of the Business Trust
Statute in the form of Exhibit C hereto.
"CERTIFICATE PAYING AGENT" means First Union National Bank.
"CERTIFICATE REGISTER" means the register maintained by the Certificate
Registrar in which the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges of Certificates.
"CERTIFICATE REGISTRAR" means, initially, the Bank, in its capacity as
Certificate Registrar, or any successor to the Bank in such capacity.
"CLOSING DATE" has the meaning specified in the Indenture.
"COLLATERAL" means all of the Trust Estate, including the Mortgage Loans,
rights to the Master Servicing Agreement, the Insurance Policies, the Bond
Account and the Distribution Account, that is from time to time pledged as
security for the Bonds under the Indenture.
"DEPOSITOR" means American Residential Eagle, Inc., a Delaware
corporation.
"EXPENSES" has the meaning specified in Section 7.02.
"FISCAL YEAR" means the period from each January 1 to and including the
following December 31.
"INDENTURE" means the indenture between the Trust and the Bond Trustee,
providing for the issuance of the Bonds.
"INDENTURE TRUSTEE" means First Union National Bank, a national banking
association, as the trustee designated under the Indenture.
"INVESTOR CERTIFICATES" means the equity certificates each representing
undivided beneficial interests in the Trust in substantially the form attached
hereto as Exhibit A.
"ISSUER" means the Trust created pursuant to this Agreement.
"MANAGEMENT AGREEMENT" means the agreement between the Trust and American
Residential, substantially in the form annexed as Exhibit B hereto, as such
agreement may be amended or supplemented.
"MANAGER" means the Person acting in such capacity pursuant to the
Management Agreement or its successors or assigns.
"MASTER SERVICER" means Norwest Bank Minnesota, National Association, a
national banking association, which shall manage and supervise the
administration and servicing of the Mortgage Loans securing the Bonds and the
Servicers of such Mortgage Loans, or its successors or assigns.
"MASTER SERVICING AGREEMENT" means the Master Servicing Agreement among
the Trust, the Indenture Trustee and the Master Servicer, pursuant to which the
Master Servicer will be obligated to manage and supervise the administration
and servicing of the Mortgage Loans by the Servicers, as such agreement may be
amended or supplemented from time to time as permitted thereby.
"MORTGAGE LOANS" means those floating rate, fully-amortizing conventional
mortgage loans secured by first liens on one- to four-family residences as are
Granted to the Indenture Trustee pursuant to the Indenture (including any REO
Property).
"NET PROCEEDS FROM THE BONDS" means the proceeds received by the Trust
from the issue and sale of the Bonds, less the costs and expenses incurred in
connection with the issue and sale of the Bonds.
"OFFICER" means those officers referred to in Article XI.
"OPERATIVE AGREEMENTS" mean this Agreement, the Indenture, the Management
Agreement, the Master Servicing Agreement, the Investor Certificate, the
Mortgage Loan Purchase Agreement and each other document contemplated by any of
the foregoing or this Agreement to which the Owner Trustee or the Trust is a
party.
"OWNER TRUSTEE" means Wilmington Trust Company, not in its individual
capacity but solely as trustee under this Agreement, and any successor trustee
hereunder.
"PERCENTAGE INTEREST" means, with respect to any Investor Certificate, the
percentage set forth on the face thereof.
"PERIODIC FILINGS" mean any filings or submissions that the Trust is
required to make with respect to the Bonds, including without limitation
filings pursuant to the Securities and Exchange Act of 1934, as amended, and
filings with any stock exchange or self-regulatory organization.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PROPOSER" means the Certificateholder making a written request pursuant
to Section 5.07.
"QUALIFIED REIT SUBSIDIARY" means any subsidiary of American Residential
which satisfies the requirements of Section 856(i)(2) of the Internal Revenue
Code of 1986, as amended.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"SERVICER" means any Person acting as a Servicer under a Servicing
Agreement for the servicing of all or a portion of the Mortgage Loans pursuant
to Section 3(b) of the Master Servicing Agreement.
"SERVICING AGREEMENT" means any servicing agreement between the Master
Servicer and the related Servicer relating to servicing and/or administration
of certain Mortgage Loans as provided in Section 3(b) of the Master Servicing
Agreement.
"SINGLE CERTIFICATE" means an Investor Certificate representing a 100%
Percentage Interest.
"TRUST" means the trust established by this Agreement.
"TRUST ESTATE" means all right, title and interest of the Trust, subject
to the lien of the Indenture, in and to the Collateral and any other property
contributed by the Depositor, including without limitation all distributions,
payments, proceeds, insurance proceeds or requisition and indemnity payments
with respect thereto. Notwithstanding the foregoing, "Trust Estate" shall not
include any amounts paid or payable as compensation or indemnity to the Bank.
ARTICLE II
ORGANIZATION
2.01. Name. The trust established under this Agreement shall be referred
to as "American Residential Eagle Bond Trust 1998-1" in which name the Owner
Trustee and the Officers may conduct the activities contemplated hereby.
2.02. Office. The office of the Trust shall be in care of the Owner
Trustee, at the address set forth in Section 10.05 or at such other address
within the State of Delaware as the Owner Trustee may designate by notice to
the Certificateholders.
2.03. Purpose and Powers. The purpose of the Trust is to issue and
administer the Bonds and the Investor Certificates, to receive and own the
Collateral, to maintain and administer the Collateral, to pledge the Collateral
to secure the Bonds pursuant to the Indenture and to distribute the Net
Proceeds from the Bonds to the Depositor, all for the benefit of the
Certificateholders. In furtherance of the foregoing, the Trust shall execute
each Operative Agreement to which it is a party. The Trust shall not have power
to perform any act or engage in any business whatsoever except for the
foregoing and any activity that is both necessary to the foregoing and within
the contemplation of the Indenture.
2.04. Appointment of the Owner Trustee. The Depositor hereby appoints the
Bank as trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein and in the Business Trust Statute.
The Owner Trustee is hereby authorized to execute the Bond Agreements and
the Management Agreement on behalf of the Trust. The Owner Trustee is hereby
authorized to take all actions required or permitted to be taken by it in
accordance with the terms of this Agreement. Effective as of the date of
execution, the Owner Trustee shall have all the rights, powers and duties set
forth herein and in the Business Trust Statute with respect to accomplishing
the purposes of the Trust.
2.05. Initial Capital Contribution; Declaration of Trust. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Trust, as of the
date hereof, the sum of $10. The Owner Trustee hereby acknowledges receipt in
trust from the Depositor, as of the date hereof, of the foregoing contribution,
which shall constitute the initial corpus of the Trust and shall be deposited
in the Certificate Distribution Account. The Owner Trustee also acknowledges on
behalf of the Trust receipt of the Mortgage Loans pursuant to Section 3 of the
Mortgage Loan Purchase Agreement, which shall constitute the Trust Estate. The
Owner Trustee hereby declares that it will hold the Trust Estate upon the
trusts set forth herein and for the use and benefit of the Certificateholders.
It is the intention of the parties hereto that the Trust constitute a business
trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. No later than the Closing Date,
the Owner Trustee shall cause the filing of the Certificate of Trust with the
Secretary of State. Except as otherwise provided in this Trust Agreement, the
rights of the Certificateholders will be those of equity owners of the Trust.
2.06. Issuance of Initial Investor Certificate. (a) Upon the formation of
the Trust by the contribution by the Depositor pursuant to Section 2.05 and
until the conveyance of the Mortgage Loans pursuant to Section 3 of the
Mortgage Loan Purchase Agreement and the issuance of the Investor Certificates,
and thereafter except as otherwise permitted hereunder, the Depositor shall be
the sole Certificateholder.
2.07. Liability of the Holders of the Investor Certificates. The Holders
of the Investor Certificates shall be jointly and severally liable directly to
and shall indemnify any injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including Expenses, to the extent not
paid out of the Trust Estate); provided however, that the Holders of the
Investor Certificates shall not be liable for payments required to be made on
the Bonds or the Investor Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Investor Certificates
or a Bondholder in the capacity of an investor in the Bonds. In addition, any
third party creditors of the Trust (other than in connection with the
obligations described in the following sentence for which the Holders of the
Investor Certificates shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The Holders of the Investor Certificates shall
be liable for any entity level taxes imposed on the Trust. The obligations of
the Holders of the Investor Certificates under this paragraph shall be
evidenced by the Investor Certificates.
2.08. Situs of Trust. The Trust will be located and administered in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware. The only office of the
Trust will be as described in Section 2.02 hereof.
2.09. Title to Trust Property. Title to all of the Trust Estate shall be
vested in the Trust as a separate legal entity until this Agreement terminates
pursuant to Article VII hereof; provided, however, that if the laws of any
jurisdiction require that title to any part of the Trust Estate be vested in
the trustee of the Trust, then title to that part of the Trust Estate shall be
deemed to be vested in the Owner Trustee or any co-trustee or separate trustee,
as the case may be, appointed pursuant to Article IX of this Agreement.
2.10. Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Owner Trustee as follows:
(a) Upon the receipt of the Trust Estate by the Owner Trustee on
behalf of the Trust under this Agreement, the Trust will own the Trust
Estate free and clear of any lien (other than the lien of the Indenture)
and the Owner Trustee will have the right on behalf of the Trust to grant
and deliver the Collateral to the Indenture Trustee in accordance with the
Indenture and Section 5.01 of this Agreement.
(b) The Depositor is duly incorporated and validly existing as a
corporation under the laws of the State of Delaware.
(c) This Agreement has been duly and validly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Depositor, enforceable in accordance with its terms, subject, as to
enforceability of remedies, to applicable bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally and to
general principles of equity and equitable remedies (regardless of whether
the enforceability of such remedies is considered in a proceeding at law
or in equity).
2.11. Tax Treatment. It is the intention of the parties hereto that, for
federal and state income and state and local franchise tax purposes, the Trust
shall not be treated as (i) an association subject separately to taxation as a
corporation (other than as a "qualified REIT subsidiary" as defined in Section
856(i) of the Code), (ii) a "publicly traded partnership" as defined in
Treasury Regulation Section 1.7704-1 or (iii) a "taxable mortgage pool" as
defined in Section 7701(i) of the code. It is also the intention of the parties
hereto that (i) the Bonds qualify under applicable tax laws as indebtedness
secured by the Trust Estate and (ii) the Trust formed hereby be disregarded as
an entity separate from the Depositor unless and until the date when either (a)
there is more than one Investor Certificateholder or (b) any Series of Bonds is
recharacterized as an equity interest in the Trust for federal income tax
purposes. In such event, the Trust is intended to be classified as a
partnership for federal income tax purposes. The Depositor, the Owner Trustee
and the Manager and any holder of an Investor Certificate agree to report the
transactions contemplated hereby in accordance with the above stated intentions
unless and until determined to the contrary by an applicable taxing authority,
and the provisions of this Agreement shall be interpreted to further the above
stated intentions.
2.12. Investment Company. Neither the Company nor any holder of an
Investor Certificate shall take any action which would cause the Trust to
become an "investment company" which would be required to register under the
Investment Company Act.
ARTICLE III
THE INVESTOR CERTIFICATES
3.01. The Investor Certificates. The Investor Certificates shall be issued
in the form of one or more Investor Certificates each representing not less
than a 10% Percentage Interest. The Investor Certificates shall initially be
registered in the name of the Depositor. The Investor Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee and authenticated in the manner
provided in Section 3.02. Investor Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly
issued and entitled to the benefit of this Trust Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized
prior to the authentication and delivery of such Investor Certificates or did
not hold such offices at the date of authentication and delivery of such
Investor Certificates. A Person shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such Person's acceptance of an Investor Certificate duly
registered in such Person's name pursuant to Section 3.03.
3.02. Authentication of Investor Certificates. The Owner Trustee shall
cause all Investor Certificates issued hereunder to be executed and
authenticated on behalf of the Trust, authenticated and delivered to or upon
the written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Depositor, in authorized denominations. No Investor Certificate shall entitle
its Holder to any benefit under this Trust Agreement or be valid for any
purpose unless there shall appear on such Investor Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by
the Owner Trustee or the Certificate Registrar by manual signature; such
authentication shall constitute conclusive evidence that such Investor
Certificate shall have been duly authenticated and delivered hereunder. All
Investor Certificates shall be dated the date of their authentication.
3.03. Registration of and Limitations on Transfer and Exchange of Investor
Certificates. The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Investor Certificates and of transfers and exchanges of Investor Certificates
as herein provided. The Bank shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Owner Trustee shall appoint a
successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with respect to
the Investor Certificate, upon surrender for registration of transfer of any
Investor Certificate at the office or agency maintained pursuant to Section
3.09, the Owner Trustee or the Certificate Registrar shall execute,
authenticate and deliver in the name of the designated transferee or
transferees, one or more new Investor Certificates in authorized denominations
of a like aggregate amount dated the date of authentication by the Owner
Trustee or the Certificate Registrar. At the option of a Holder, Investor
Certificates may be exchanged for other Investor Certificates of authorized
denominations of a like aggregate amount upon surrender of the Investor
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.08.
Every Investor Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Certificate Registrar duly executed by the Holder
or such Holder's attorney duly authorized in writing. Each Investor Certificate
surrendered for registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Certificate Registrar in accordance with its
customary practice.
No service charge shall be made for any registration of transfer or
exchange of Investor 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 Investor Certificates.
No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form
W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No transfer of an Investor Certificate shall be made unless such transfer
is exempt from the registration requirements of the Securities Act and any
applicable state securities laws or is made in accordance with said Act and
laws. In the event of any such transfer, the Certificate Registrar or the
Depositor shall prior to such transfer require the transferee to execute (i)
(a) an investment letter (in substantially the form attached hereto as Exhibit
C) in form and substance reasonably satisfactory to the Certificate Registrar
and the Depositor certifying to the Trust, the Owner Trustee, the Certificate
Registrar and the Depositor that such transferee is a "qualified institutional
buyer" under Rule 144A under the Securities Act, or (b) an investment letter
(in substantially the form attached hereto as Exhibit E), acceptable to and in
form and substance reasonably satisfactory to the Certificate Registrar and the
Depositor, which investment letters shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer or the Depositor,
or (c) a certificate (in substantially the form attached hereto as Exhibit F)
in form and substance reasonably satisfactory to the Certificate Registrar and
the Depositor certifying that such transferee is 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 the Company) and (ii) the Certificate of
Non-Foreign Status (in substantially the form attached hereto as Exhibit F)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. The Holder of an Investor Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws.
No transfer of an Investor Certificate shall be made unless the
Certificate Registrar shall have received either (i) a representation letter
from the proposed transferee of such Investor Certificate to the effect that
such proposed transferee is not an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA, or Section 4975 of the Code, or a
Person acting on behalf of any such plan or using the assets of any such plan,
which representation letter shall not be an expense of the Trust, Owner
Trustee, the Certificate Registrar, the Master Servicer or the Depositor or
(ii) in the case of any such certificate presented for registration in the name
of an employee benefit plan subject to the fiduciary responsibility provisions
of ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan, or any other Person who
is using the assets of any such plan to effect such acquisition, an Opinion of
Counsel, in form and substance reasonably satisfactory to, and addressed and
delivered to, the Trust, the Certificate Registrar and the Depositor, to the
effect that the purchase or holding of such Investor Certificate will not
result in the assets of the Trust Estate being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA or the prohibited
transaction provisions of the Code, will not constitute or result in a
prohibited transaction within the meaning of Section 406 or Section 407 of
ERISA or Section 4975 of the Code, and will not subject the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor to any obligation or
liability including obligations or liabilities under ERISA or Section 4975 of
the Code in addition to those explicitly undertaken in this Trust Agreement
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or Depositor.
As long as two or more Persons are holders of Investor Certificates, the
Investor Certificates may only be transferred in accordance with the following
provisions: before any Investor Certificates may be transferred to any Person,
the Certificate Registrar shall have received the consent to such transfer by
holder of Investor Certificates representing ownership of more than 50% of the
beneficial interest in the Trust, excluding for this purpose the beneficial
interest represented by the Investor Certificates owned by the transferor or
(unless the transferor and its Affiliates are the only holders of Investor
Certificates) any Affiliate thereof; provided, however, that no consent shall
be required to a transfer of Investor Certificates to the Depositor upon the
Closing Date.
No offer, sale, transfer or other disposition (including pledge) of any
Investor Certificate shall be made to any transferee unless such transferee
certifies to the Certificate Registrar and the Trust that the net worth of such
transferee equals or exceeds $500,000 other than its interest in the Investor
Certificates. The foregoing requirement shall not apply to the Depositor so
long as it is the Holder of 100% of the Investor Certificates, but shall apply
to the Depositor upon any sale of a portion of the Investor Certificates.
No offer, sale, transfer or other disposition (including any pledge or
sale under a repurchase transaction) of any Investor Certificate shall be made
to any transferee unless, prior to such disposition, the proposed transferor
delivers to the Certificate Registrar and the Trust an Opinion of Counsel,
rendered by a law firm generally recognized to be qualified to opine concerning
the tax aspects of asset securitization, to the effect that such transfer
(including any disposition permitted following any default under any pledge or
repurchase transaction) will not cause the Trust to be (i) treated as an
association taxable as a corporation for federal income tax purposes (other
than a Qualified REIT Subsidiary), (ii) taxable as a taxable mortgage pool as
defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded
partnership" as defined in Treasury Regulation section 1.7704-1.
Notwithstanding the foregoing, the provisions of this paragraph shall not apply
to the initial transfer of the Investor Certificates to the Depositor.
No offer, sale, transfer or other disposition (including pledge) of any
Investor Certificate shall be made to any affiliate of the Depositor or the
Issuer, other than the initial transfer of the Investor Certificate to the
Depositor.
3.04. Lost, Stolen, Mutilated or Destroyed Investor Certificates. If (a) a
mutilated Investor Certificate is surrendered to the Certificate Registrar, or
(b) the Certificate Registrar receives evidence to its satisfaction that the
Investor Certificate has been destroyed, lost or stolen, and there is delivered
to the Certificate Registrar proof of ownership satisfactory to the Certificate
Registrar, together with such security or indemnity as required by the
Certificate Registrar and the Owner Trustee to save each of them harmless, then
in the absence of notice to the Certificate Registrar or the Owner Trustee that
such Investor Certificate has been acquired by a bona fide purchaser, the Owner
Trustee shall execute on behalf of the Trust, and the Owner Trustee or the
Certificate Registrar shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Investor Certificates, a
new Investor Certificate of like tenor and denomination. In connection with the
issuance of any new Investor Certificate under this Section 3.04, the Owner
Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any expenses of the Owner Trustee or the Certificate
Registrar (including fees and expenses of counsel) and any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Investor Certificate issued pursuant to this Section 3.04 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Investor Certificate shall be found at any
time.
3.05. Persons Deemed Certificateholders. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Certificate Paying Agent may treat the Person in whose name
any Investor Certificate is registered in the Certificate Register as the owner
of such Investor Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Trust, the Owner Trustee, the Certificate Registrar or any Certificate Paying
Agent shall be bound by any notice to the contrary.
3.06. Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Depositor
or the Owner Trustee, within 15 days after receipt by the Certificate Registrar
of a written request therefor from the Depositor or the Owner Trustee, a list,
in such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. Each Holder, by receiving and holding an Investor
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
3.07. Covenants of Certificateholders to Indemnify Indenture Trustee. The
Certificateholders shall be liable to the Indenture Trustee for the payment of
the Indenture Trustee's fees, indemnity and expenses pursuant to Section 6.07
of the Indenture in the event that the Trust fails to pay such fees, indemnity
and expenses but only to the extent payable out of amounts actually received by
the Certificateholders from distributions of the Trust pursuant to Section 4.01
hereof made on or before the date of demand for such payment by the Indenture
Trustee.
3.08. Maintenance of Office or Agency. The Certificate Registrar on behalf
of the Trust, shall maintain an office or offices or agency or agencies where
Investor 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 Investor Certificates and the Operative Documents may be served. The
Certificate Registrar initially designates its office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ as its office for such purposes. The
Certificate Registrar shall give prompt written notice to the Depositor and the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
3.09. Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Certificate Distribution Account on behalf of
the Trust in accordance with the provisions of the Investor Certificates
and Section 4.01 hereof from payments remitted to the Certificate Paying
Agent by the Trustee Pursuant to Section 3.01 of the Indenture. The Trust
hereby appoints First Union National Bank as Certificate Paying Agent and
First Union National Bank hereby accepts such appointment and further
agrees that it will be bound by the provisions of this Trust Agreement
relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Investor Certificates in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust
of which it has actual knowledge in the making of any payment
required to be made with respect to the Investor Certificates;
(iii) at any time during the continuance of any such default,
upon the written request of the Owner Trustee forthwith pay to the
Owner Trustee on behalf of the Trust all sums so held in Trust by
such Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and
forthwith pay to the Owner Trustee on behalf of the Trust all sums
held by it in trust for the payment of Investor Certificates if at
any time it ceases to meet the standards under this Section 3.09
required to be met by the Certificate Paying Agent at the time of its
appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Investor Certificates
of any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith;
(vi) deliver to the Owner Trustee a copy of the report to
Bondholders prepared with respect to each Payment Date by the Master
Servicer pursuant to Section 8.06 of the Indenture; and
(vii) not institute bankruptcy proceedings against the Issuer in
connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying
Agent if it determines in its sole discretion that the Certificate Paying
Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. First Union National Bank shall be
permitted to resign as Certificate Paying Agent upon 30 days written
notice to the Owner Trustee; provided First Union National Bank is also
resigning as Paying Agent under the Indenture at such time. In the event
that First Union National Bank shall no longer be the Certificate Paying
Agent under this Trust Agreement and Paying Agent under the Indenture, the
Owner Trustee shall appoint a successor to act as Certificate Paying Agent
(which shall be a bank or trust company) and which shall also be the
successor Paying Agent under the Indenture. The Owner Trustee shall cause
such successor Certificate Paying Agent or any additional Certificate
Paying Agent appointed by the Owner Trustee to execute and deliver to the
Owner Trustee an instrument to the effect set forth in this Section 3.09
as it relates to the Certificate Paying Agent. The Certificate Paying
Agent shall return all unclaimed funds to the Trust and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return
all funds in its possession to the Trust. The provisions of Sections 6.01,
6.04, 6.06 and 7.01 shall apply to the Certificate Paying Agent to the
extent applicable. Any reference in this Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The Certificate Paying Agent shall establish and maintain with
itself a trust account (the "Certificate Distribution Account") in which
the Certificate Paying Agent shall deposit, on the same day as it is
received from the Trustee, each remittance received by the Certificate
Paying Agent with respect to payments made pursuant to the Indenture. The
Certificate Paying Agent shall make all distributions to Investor
Certificates, from moneys on deposit in the Certificate Distribution
Account.
(d) The Certificate Paying Agent shall be paid by the Indenture
Trustee.
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
4.01. Payments.
(a) Any amounts paid to the Owner Trustee by the Indenture Trustee
free and clear of the lien of the Indenture shall be applied in the
following order:
(i) to pay any amounts owing to the Owner Trustee or the Bank,
as the case may be, as then due under this Agreement;
(ii) to pay fees then due under the Management Agreement; and
(iii) to pay any operating expenses of the Trust.
Any sums remaining after such application shall be distributed monthly to
the Certificateholders pursuant to Section 3(h)(viii) of the Master Servicing
Agreement no later than the 25th day of each month or, if such day is not a
Business Day, on the next succeeding Business Day. All Net Proceeds From the
Bonds shall be distributed to, or at the direction of, the Depositor in
immediately available funds.
All payments to be made under this Agreement by the Owner Trustee shall be
made only from the income and proceeds, including Net Proceeds From the Bonds,
of the Trust Estate and only to the extent that the Owner Trustee has received
such income or proceeds. The Bank shall not be liable to the Owner, the
Indenture Trustee or the Manager for any amounts payable pursuant to this
Section 4.01 except to the extent that non-payment is due to the Owner
Trustee's acts or omissions amounting to willful misconduct or gross
negligence.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to the Certificateholders, such
tax shall reduce the amount otherwise distributable to the
Certificateholders in accordance with this Section 4.01. The Certificate
Paying Agent is hereby authorized and directed to retain or cause to be
retained from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Owner Trustee from
contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Certificate Paying
Agent and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution
(such as a distribution to a non-U.S. Certificateholder), the Certificate
Paying Agent may in its own discretion withhold such amounts in accordance
with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Bondholders.
4.02. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to the Certificateholders on any Payment Date as provided
in Section 4.01 shall be made to the Certificateholders of record on the
preceding Record Date either by, in the case of any Certificateholder owning
Certificates having a Percentage Interest of 100%, wire transfer, in
immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
4.03. Tax Returns. The Manager shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis using the accrual
method of accounting, (b) deliver (or cause to be delivered) to each
Certificateholder as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable each
Certificateholder to prepare its federal and state income tax returns, (c)
prepare and file or cause to be prepared and filed such tax returns relating to
the Trust as may be required by the Code and applicable Treasury Regulations
(making such elections as may from time to time be required or appropriate
under any applicable state or federal statutes, rules or regulations) and (d)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 4.01 of this Trust Agreement with respect to income or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto. The Owner Trustee shall sign all tax and
information returns prepared or caused to be prepared by the Manager pursuant
to this Section 4.03 at the request of the Manager, and in doing so shall rely
entirely upon, and shall have no liability for information or calculations
provided by, the Master Servicer or the Manager.
If the Trust is classified as a partnership for federal income tax
purposes, the Manager shall cause the Trust to (i) maintain capital accounts
and make partnership allocations in accordance with Section 704 of the code and
(ii) file Form 8832 with the Internal Revenue Service and make an election for
the Trust be classified as a partnership for federal income tax purposes. The
holder of the Investor Certificate shall be designated as the "tax matters
partner" of the Trust.
4.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall send to each Certificateholder the statement or
statements provided to the Owner Trustee and the Certificate Paying Agent by
the Master Servicer pursuant to Section 8.06 of the Indenture with respect to
such Payment Date.
4.05. Reports to Internal Revenue Service and Others. The Trust will (i)
cause to be prepared all Periodic Filings, (ii) make such elections and file
such tax returns relating to the Trust as the Depositor may direct in a notice
delivered to the Owner Trustee in accordance with Section 10.05, and (iii)
cause to be mailed to the Depositor any or all of such reports and tax returns
within 90 days of the end of the Fiscal Year; provided, however, that the Trust
shall be deemed to be in compliance with this provision by its execution of the
Management Agreement.
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS
5.01. General Authority. The Owner Trustee is authorized and directed to
execute and deliver the Operative 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 Operative Documents to which the Trust is to be a party and
any amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Operative Documents.
5.02. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Trust Agreement and to administer the Trust in the interest
of the Certificateholders, subject to the Operative Documents and in accordance
with the provisions of this Trust Agreement.
5.03. Action Upon Instruction.
(a) Subject to Article V and in accordance with the terms of the
Operative Documents, the Certificateholders may by written instruction
direct the Owner Trustee in the management of the Trust. Such direction
may be exercised at any time by written instruction of the
Certificateholders pursuant to Article V.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Operative 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
Operative 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
Trust Agreement or under any Operative Document, or in the event that the
Owner Trustee is unsure as to the application of any provision of this
Trust Agreement or any Operative Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Trust Agreement
permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders (with a copy to the Insurer)
requesting instruction as to the course of action to be adopted, and to
the extent the Owner Trustee acts in good faith in accordance with any
written instruction of the Certificateholders received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owners
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 Trust Agreement or the Operative
Documents, as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any
Person for such action or inaction.
5.04. No Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided (i)
in accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Trust Agreement, and (ii) in accordance with any
document or instruction delivered to the Owner Trustee pursuant to Section
5.03; and no implied duties or obligations shall be read into this Trust
Agreement or any Operative 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
prepare or file any Securities and Exchange Commission filing for the Trust or
to record this Trust Agreement or any Operative 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 Trust
Estate that result from actions by, or claims against the Bank that are not
related to the ownership or the administration of the Trust Estate.
5.05. Restrictions.
(a) The Owner Trustee shall not take any action (x) that is
inconsistent with the purposes of the Trust set forth in Section 2.03 or
(y) that, to the actual knowledge of the Owner Trustee, would result in
the Trust becoming taxable as a corporation (other than as a Qualified
REIT Subsidiary) for federal income tax purposes or (z) would result in
the amendment or modification of the Operative Documents or this Trust
Agreement without the prior written consent of the Insurer. The
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 5.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (a) it shall have received an Opinion of Counsel to the
effect that such transaction will not have any material adverse tax
consequence to the Trust or any Certificateholder and (b) such conveyance
or transfer shall not violate the provisions of Section 3.09(a) of the
Indenture.
5.06. Prior Notice to Certificateholders with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Certificateholders shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Certificateholders
have withheld consent or provided alternative direction:
(a) The initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of cash
distributions due and owning under 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
cash distributions due and owning under the Mortgage Loans);
(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 of the Indenture by a supplemental indenture in
circumstances where the consent of any Bondholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Bondholder is not required and such
amendment materially adversely affects the interests of the
Certificateholders; or
(e) the appointment pursuant to the Indenture of a successor Bond
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust
Agreement of a successor Certificate Registrar or Certificate Paying Agent
or the consent to the assignment by the Bond Registrar, Paying Agent,
Indenture Trustee, Certificate Registrar or Certificate Paying Agent of
its obligations under the Indenture or this Trust Agreement, as
applicable.
5.07. Action by Certificateholders with Respect to Certain Matters.
(a) The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders, to (i) remove the Master Servicer
under the Master Servicing Agreement pursuant to Sections 7(a) thereof or
(ii) except as expressly provided in the Operative Documents, sell the
Mortgage Loans after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholders and with the consent
of the Insurer.
(b) Upon the written request of any Certificateholder (a "Proposer"),
the Owner Trustee shall distribute promptly to all Certificateholders any
request for action or consent of Certificateholders submitted by such
Proposer, with a copy to the Manager. The Owner Trustee shall provide a
reasonable method for collecting responses to such request and shall
tabulate and report the results thereof to the Certificateholders and the
Manager. The Owner Trustee shall have no responsibility or duty to
determine if any such proposed action or consent is permitted under the
terms of this Trust Agreement or applicable law.
5.08. Action by Certificateholders with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of
Certificateholders and with the consent of the Bondholders and the Owner
Trustee and the delivery to the Owner Trustee by each such Certificateholder of
a certificate certifying that such Certificateholder reasonably believes that
the Trust is insolvent. This paragraph shall survive for one year and one day
following termination of this Trust Agreement.
5.09. Restrictions on Certificateholders' Power. The Certificateholders
shall not direct the Owner Trustee to take or to refrain from taking any action
if such action or inaction would be contrary to any obligation of the Trust or
the Owner Trustee under this Trust Agreement or any of the Operative Documents
or would be contrary to Section 2.03 nor shall the Owner Trustee be obligated
to follow any such direction, if given.
5.10. Majority Control. Except as expressly provided herein, any action
that may be taken by the Certificateholders under this Trust Agreement may be
taken by the Holders of Investor Certificates evidencing not less than a
majority of the outstanding Percentage Interests of the Investor Certificates.
Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be
effective if signed by Holders of Investor Certificates evidencing not less
than a majority of the outstanding Percentage Interests of the Investor
Certificates at the time of the delivery of such notice.
5.11. Optional Redemption. Upon receipt of written instructions provided
to the Owner Trustee by the Holder or Holders of 100% of the Investor
Certificates, the Owner Trustee shall cause the Issuer to redeem the Bonds in
accordance with Section 10.01 of the Indenture and shall provide all necessary
notices on behalf of the Issuer to effect the foregoing, provided that such
Holder or Holders shall deposit with the Indenture Trustee an amount equal to
the aggregate redemption price specified under Section 10.01 of the Indenture,
which shall be applied by the Indenture Trustee solely to make such redemption
payments. The Owner Trustee shall not have the power to exercise the right of
the Issuer to redeem the Bonds pursuant to Section 10.01 of the Indenture,
except as provided above.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform the same but only upon the terms of
this Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate upon the terms of this
Agreement. The Bank shall not be answerable or accountable under any
circumstances, except (i) for its own willful misconduct or gross negligence,
(ii) in the case of the inaccuracy of any representation or warranty contained
in Section 6.04, (iii) for liabilities arising from the failure by the Bank to
perform obligations expressly undertaken by it in the last sentence of Section
5.04(a), or (iv) for taxes, fees or other charges on based on or measured by
any fees, commissions or compensation received by the Bank in connection with
any of the transactions contemplated by this Agreement, the Operative
Agreements or the Bonds. In particular, but not by way of limitation:
(a) The Bank shall not be liable for any error of judgment, not
constituting gross negligence, made in good faith by a responsible officer
of the Owner Trustee;
(b) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Owner Trustee in good faith in accordance with
the instructions of the Certificateholders;
(c) No provision of this Agreement shall require the Bank to expend
or risk funds or otherwise incur any financial liability in the
performance of any of the Owner Trustee's rights or powers hereunder if
the Bank shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) Under no circumstance shall the Bank be liable for indebtedness
evidenced by any Bond;
(e) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Manager under the Management Agreement or the
Certificate Paying Agent under this Agreement and the Bank shall not be
obligated to perform any obligations or duties under this Agreement or the
Bond Agreements which are to be performed by the Manager under the
Management Agreement or the Certificate Paying Agent or the Certificate
Registrar under this Agreement;
(f) The Bank shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any Collateral or for or in
respect of the validity or sufficiency of the Indenture, and the Bank
shall in no event assume or incur any liability, duty or obligation to any
Bondholder, the Depositor or to the Certificateholders, other than as
expressly provided for herein; and
(g) Under no circumstances shall the Bank be responsible for the
action or inaction of the Officers, the Manager, the Certificate Paying
Agent or the Master Servicer, nor shall the Bank be responsible for
monitoring the performance of the Officers' duties hereunder, the
Manager's duties under the Management Agreement, the Certificate Paying
Agent's duties under this Agreement or the Master Servicer's duties under
the Master Servicing Agreement.
6.02. Furnishing of Documents. The Owner Trustee will furnish to the
Manager, promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee hereunder or under the Bond
Agreements unless the Certificate Registrar and the Manager shall have already
received the same.
6.03. Books and Records. The Owner Trustee shall keep or cause to be kept
proper books of record and account of all the transactions under this
Agreement, including a record of the name and address of the Holders of the
Investor Certificates. The Owner Trustee shall be deemed to have complied with
this Section 6.03 by the appointment of the Manager and the Certificate Paying
Agent.
6.04. Representations and Warranties of the Bank. The Bank represents and
warrants as follows:
(a) the Bank is a banking corporation duly created, validly existing
and in good standing under the laws of the State of Delaware and has the
full corporate power, authority and legal right to execute, deliver and
perform this Agreement, the Indenture and each of the other Operative
Agreements to which the Trust is a party; the execution and delivery by
the Bank of this Agreement, and by the Owner Trustee (on behalf of the
Trust) of the Indenture and each of the other Operative Agreements to
which it is a party and the performance by the Bank or the Owner Trustee,
as the case may be, of its obligations under this Agreement have been duly
authorized by all necessary corporate action on the part of the Bank and,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, this Agreement constitutes a legal, valid and
binding obligation of the Bank or the Owner Trustee, as the case may be,
enforceable against the Bank or the Owner Trustee, as the case may be, in
accordance with its terms, except that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(b) neither the Bank nor anyone authorized to act on its behalf has
offered any interest in and to the Trust for sale to, or solicited any
offer to acquire any of the same from, anyone;
(c) the execution and delivery by the Bank of, and the performance by
it and the Owner Trustee, as the case may be, of their obligations under
this Agreement are not in violation of any indenture, agreement or other
instrument, license, judgment or order applicable to the Bank;
(d) the execution and delivery by the Bank of, and its and the Owner
Trustee's performance of their obligations under, this Agreement do not
require the consent or approval of, the giving of notice to, or the
registration with, or the taking of any other action with respect to, any
governmental authority or agency of the State of Delaware (except as may
be required by the Delaware securities law or the Business Trust Statute
or as may be required to enforce the lien of the Indenture); and
(e) no litigation is pending or, to the best of the Bank's knowledge,
threatened against the Bank or the Owner Trustee, as the case may be, that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement, the Investor Certificates, the Bonds,
the Indenture or any of the other Operative Documents, or the ability of
the Bank or the Owner Trustee, as the case may be, to perform any of its
obligations thereunder in accordance with the terms thereof.
[Reserved]
6.05. 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 manner of ascertainment of which is not
specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice
president and by the treasurer or any assistant treasurer or the secretary
or any assistant secretary of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In its exercise or administration of the trusts and powers
hereunder, including its obligations under Section 5.02(b), the Owner
Trustee may employ agents and attorneys and enter into agreements
(including the Management Agreement and the Master Servicing Agreement)
with any of them, and the Owner Trustee shall not be answerable for the
default or misconduct of any such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with reasonable
care. If, and to the extent, the Depositor shall have failed to reimburse
the Trustee for all reasonable expenses incurred pursuant to this Section
6.06(b), as provided in Section 7.01, the Owner Trustee may seek
reimbursement therefor from the Trust Estate.
(c) In the administration of the trusts and performance of its duties
hereunder, the Owner Trustee may consult with counsel, accountants and
other skilled Persons to be selected and employed by it, and the Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the reasonable advice or opinion of any
such counsel, accountants or other skilled Persons. If, and to the extent,
the Depositor shall have failed to reimburse the Trustee for all
reasonable expenses incurred pursuant to this Section 6.06(c), as provided
in Section 7.01, the Owner Trustee may seek reimbursement therefor from
the Trust Estate.
6.06. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created the Owner Trustee acts
solely as trustee hereunder and not in its individual capacity, and all persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by the Bond Agreements shall look only to the Trust Estate for
payment or satisfaction thereof.
ARTICLE VII
INDEMNIFICATION BY DEPOSITOR
7.01. Trust Expenses. The Depositor shall pay (or reimburse the Bank for)
all reasonable expenses of the Owner Trustee hereunder, including, without
limitation, the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and duties under the
Bond Agreements.
7.02. Indemnification. The Depositor hereby agrees to assume liability
for, and indemnify the Bank and its successors, assigns, agents and servants,
against and from, any and all liabilities, obligations, losses, damages, taxes,
claims, actions, suits, costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may be imposed on, incurred by or asserted at any time
against the Bank (whether or not indemnified against by other parties) in any
way relating to or arising out of this Agreement, any Bond Agreement, the
Collateral, the administration of the Trust Estate or the action or inaction of
the Owner Trustee hereunder, except only that the Depositor shall not be
required to indemnify the Bank for Expenses arising or resulting from any of
the matters described in the third sentence of Section 6.01. The indemnities
contained in this Section 7.02 shall survive the termination of this Agreement.
7.03. Compensation. The Bank shall receive as compensation for the Owner
Trustee's services hereunder such ordinary fees as shall have been separately
agreed to by the Depositor and the Owner Trustee. The Bank shall be compensated
reasonably for any extraordinary services rendered by the Owner Trustee
hereunder.
7.04. Lien on Trust Estate. The Bank shall have a lien on the Trust Estate
for any compensation or indemnity due hereunder, such lien to be subject only
to prior liens of the Indenture. The Bank shall not bring any proceedings to
foreclose on such lien if and to the extent the Trust Estate is subject to the
lien of the Indenture.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
8.01. Termination of Trust Agreement.
(a) This Agreement and the trusts created hereby shall terminate and
the Trust Estate shall, subject to the Indenture and Section 4.01, be
distributed to the Certificateholders, and this Agreement shall be of no
further force or effect, upon the earlier of (i) the sale or other final
disposition by the Indenture Trustee or the Owner Trustee, as the case may
be, of all the Trust Estate and the final distribution by the Indenture
Trustee or the Owner Trustee, as the case may be, of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms of
the Indenture and Section 4.01, and (ii) the expiration of 21 years from
the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late ambassador of the United States to the Court of St. James's, living
on the date of this Agreement. The bankruptcy of any Certificateholder
shall not operate to terminate this Agreement, nor entitle such
Certificateholder's legal representatives to claim an accounting or to
take any action or proceeding in any court for a partition or winding up
of the Trust Estate, nor otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor
the Certificateholders shall be entitled to revoke the Trust established
hereunder.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which Certificateholders shall surrender their Investor
Certificates to the Certificate Paying Agent for payment of the final
distribution and cancellation, shall be given by the Certificate Paying
Agent by letter to Certificateholders mailed within five Business Days of
receipt of notice of the final payment on the Bonds from the Indenture
Trustee, stating (i) the Payment Date upon or with respect to which final
payment of the Investor Certificates shall be made upon presentation and
surrender of the Investor Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Payment Date
is not applicable, payments being made only upon presentation and
surrender of the Investor Certificates at the office of the Certificate
Payment Agent therein specified. The Certificate Paying Agent shall give
such notice to the Owner Trustee and the Certificate Registrar at the time
such notice is given to Certificateholders. Upon presentation and
surrender of the Investor Certificates, the Certificate Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on
such Payment Date pursuant to Section 4.01.
In the event that all of the Certificateholders shall not surrender
their Investor Certificates for cancellation within six months after the
date specified in the above mentioned written notice, the Certificate
Paying Agent shall give a second written notice to the remaining
Certificateholders to surrender their Investor Certificates for
cancellation and receive the final distribution with respect thereto.
Subject to applicable laws with respect to escheat of funds, if within one
year following the Payment Date on which final payment of the Investor
Certificates was to have been made pursuant to Section 3.03 of the
Indenture, all the Investor Certificates shall not have been surrendered
for cancellation, the Certificate Paying Agent may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Investor
Certificates, and the cost thereof shall be paid out of the funds and
other assets that shall remain subject to this Trust Agreement. Any funds
remaining in the Certificate Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the
Holders of the Investor Certificates.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL TRUSTEES
9.01. Resignation of Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign at any time without cause by giving
at least 60 days' prior written notice to the Owner, such resignation to
be effective on the acceptance of appointment by a successor Owner Trustee
under (b) below. In addition, the Owner Trustee may be removed (i) at any
time by the Depositor, without cause, by an instrument in writing
delivered to the Owner Trustee, such removal to be effective upon the
acceptance of appointment by a successor Owner Trustee under Section
9.01(b) or (ii) by action of the Certificateholders holding Percentage
Interests aggregating at least 66 2/3%. In case of the resignation or
removal of the Owner Trustee, the Depositor may appoint a successor Owner
Trustee by an instrument signed by the Depositor. If a successor Owner
Trustee shall not have been appointed within 30 days after the giving of
written notice of such resignation or the delivery of the written
instrument with respect to such removal, the Owner Trustee or the
Depositor may apply to any court of competent jurisdiction to appoint a
successor Owner Trustee to act until such time, if any, as a successor
shall have been appointed as above provided. Any successor Owner Trustee
so appointed by such court shall immediately and without further act be
superseded by any successor Owner Trustee appointed as above provided
within one year from the date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee an instrument accepting such
appointment, and thereupon such successor Owner Trustee, without further
act, shall become vested with all the estates, properties, rights, powers,
duties and trusts of the predecessor Owner Trustee in the trusts hereunder
with like effect as if originally named the Owner Trustee herein; but
nevertheless, upon the written request of such successor Owner Trustee,
such predecessor Owner Trustee shall execute and deliver an instrument
(presented to it in execution form) transferring to such successor Owner
Trustee, upon the trusts herein expressed, all the estates, properties,
rights, powers, duties and trusts of such predecessor Owner Trustee, and
such predecessor Owner Trustee shall duly assign, transfer, deliver and
pay over to such successor Owner Trustee all moneys or other property then
held or subsequently received by such predecessor Owner Trustee upon the
trusts herein expressed.
(c) Any successor Owner Trustee, however appointed, shall be a bank
or trust company satisfying the provisions of Section 3807(a) of the
Business Trust Statute and having a combined capital and surplus of at
least $50,000,000, if there be such an institution willing, able and
legally qualified to perform the duties of the Owner Trustee hereunder
upon reasonable or customary terms.
(d) 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 to which substantially all
the corporate trust business of the Owner Trustee may be transferred,
shall, subject to the terms of (c) above, be the Owner Trustee under this
Agreement without further act.
(e) Upon the happening of any of the events described in this Section
9.01, the successor Owner Trustee shall cause an amendment to the
Certificate of Trust to be filed with the Secretary of State, in
accordance with the provisions of Section 3810 of the Business Trust
Statute, indicating the change with respect to the Owner Trustee's
identity.
9.02. Appointment of Additional Trustees. At any time or times for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Owner Trustee, by an
instrument in writing, may appoint one or more individuals or corporations to
act as separate trustee or separate trustees of all or any part of the Trust
Estate to the full extent that a local law makes it necessary for such separate
trustee or separate trustees to act alone. No trustee shall be liable for the
acts or omissions of any other trustee appointed hereunder.
ARTICLE X
MISCELLANEOUS
10.01. Supplements and Amendments. At the written request of the
Depositor, this Agreement (other than Sections 8.01 and 10.02 and this Section
10.01) shall be amended by a written instrument signed by the Owner Trustee and
the Depositor, but if in the opinion of the Owner Trustee any instrument
required to be so executed adversely affects any right, duty or liability of,
or immunity or indemnity in favor of, the Owner Trustee under this Agreement or
any of the documents contemplated hereby to which the Owner Trustee is a party,
or would cause or result in any conflict with or breach of any terms,
conditions or provisions of, or default under, the charter documents or bylaws
of the Bank or any Operative Agreement, the Owner Trustee may in its sole
discretion decline to execute such instrument. Prior to executing any Amendment
to this Agreement, the Owner Trustee shall be entitled to an opinion of counsel
as to whether such Amendment is authorized and permitted by the terms of this
Agreement.
10.02. No Legal Title to Trust Estate in Certificateholders. The
Certificateholders shall not have legal title to any part of the Trust Estate
and shall only be entitled to receive distributions with respect to its
undivided beneficial interest therein pursuant to Section 4.01 once all amounts
then owing with respect to the Bonds have been paid in accordance with the
Indenture. No transfer, by operation of law of any right, title and interest of
the Certificateholders in and to its undivided beneficial interest in the Trust
Estate or hereunder shall operate to terminate this Agreement or the trusts
hereunder or entitle any successor transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Estate.
10.03. Pledge of Collateral by Owner Trustee Is Binding. The pledge of the
Collateral to the Indenture Trustee by the Trust made under the Indenture and
pursuant to the terms of this Agreement shall bind the Certificateholders and
shall be effective to transfer or convey the rights of the Trust and the
Certificateholders in and to such Collateral to the extent set forth in the
Indenture. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such pledge or as to the
application of any proceeds with respect thereto by the Owner Trustee.
10.04. Limitations on Rights of Others. Nothing in this Agreement, whether
express or implied (except for Section 7.04), shall be construed to give to any
Person other than the Trust and the Certificateholders any legal or equitable
right in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein; provided, however, that
the parties hereto acknowledge and agree that the Indenture Trustee is a
third-party beneficiary under Section 3.07 hereof.
10.05. Notices. Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and delivered by hand or mailed
by certified mail, postage prepaid, if to the Owner Trustee or the Trust,
addressed to it at c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Administration or to such other address as the Owner Trustee may have set
forth in a written notice to the Certificateholders and the Depositor addressed
to it at the address set forth for such Certificateholders in the register
maintained by the Owner Trustee. Whenever any notice in writing is required to
be given by the Owner Trustee or the Manager, such notice shall be deemed given
and such requirement satisfied if such notice is mailed by certified mail,
postage prepaid, addressed as provided above.
10.06. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.07. 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.
10.08. Successors and Assigns. All representations, warranties, covenants
and agreements contained herein shall be binding upon, and inure to the benefit
of, the Owner Trustee and its successors and assigns and the Depositor and each
Certificateholder and its respective successors, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by
any Certificateholder shall bind the successors of such Certificateholder.
10.09. 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.
10.10. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Delaware without
reference to the conflict of laws provisions thereof, including all matters of
construction, validity and performance.
10.11. No Petition. The Owner Trustee, by entering into this Agreement,
the Certificateholders, by accepting the Investor Certificates, 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 institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Investor Certificate, the Bonds, this Agreement or any of the
Operative Agreements.
ARTICLE XI
OFFICERS
11.01. Appointment of Officers. The Trust may have one or more Officers
who are hereby empowered to take and are responsible for performing all
ministerial duties on behalf of the Trust pursuant to this Agreement and the
Operative Agreements, including, without limitation, the execution of the
Officers' Certificate (as defined in the Indenture), the Issuer Order (as
defined in the Indenture), the Issuer Request (as defined in the Indenture),
the annual compliance report required under Section 3.10 of the Indenture, and
annual reports, documents and other reports which the Trust is required to file
with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended. Each of the Chairman of the
Board, the Chief Executive Officer, the President, each Senior Vice President
and each Vice President of the Depositor is hereby appointed as an Officer of
the Trust. The Depositor shall promptly deliver to the Owner Trustee and the
Indenture Trustee a list of its officers who shall become the Officers of the
Trust pursuant to this Section 11.01.
11.02. Officers to Provide Information to the Owner Trustee. It shall be
the duty of each Officer to keep the Owner Trustee reasonably informed as to
material events relating to the Trust, including, without limitation, all
claims pending or threatened against the Trust, the purchase and sale of any
material portion of the Trust Estate and the execution by such Officer on
behalf of the Trust of any material agreements or instruments.
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.
WILMINGTON TRUST COMPANY
By:_____________________________________
Its:____________________________________
AMERICAN RESIDENTIAL
EAGLE, INC.
By:_____________________________________
Its:____________________________________
EXHIBIT A
[Form of Investor Certificate]
[Face]
THIS INVESTOR CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.03 OF THE TRUST AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS INVESTOR CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER
FROM THE TRANSFEREE OF THIS INVESTOR CERTIFICATE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (II) IF THIS INVESTOR CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, OR SECTION 4975 OF THE CODE (OR COMPARABLE
PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY
OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING
OF THIS INVESTOR CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST ESTATE
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE, WILL
NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT
SUBJECT THE OWNER TRUSTEE OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY.
NO TRANSFER OF THIS INVESTOR CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER
U.S. LAW.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST
AGREEMENT OR THE OPERATIVE DOCUMENTS.
Certificate No. 1
Percentage Interest: 100
Cut-Off Date: May 1, 1998
First Payment Date: June 25, 1998
AMERICAN RESIDENTIAL EAGLE BOND TRUST 1998-1
Evidencing a fractional undivided equity interest in the Trust Estate, the
property of which consists primarily of the Mortgage Collateral in American
Residential Eagle Bond Trust 1998-1 (the "Trust"), a Delaware business trust
formed by AMERICAN RESIDENTIAL EAGLE, INC., AS DEPOSITOR, pursuant to the Trust
Agreement referred to below.
This certifies that [name of Holder] is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Deposit Trust Agreement dated as of
June 1, 1998 (as amended and supplemented from time to time, the "Trust
Agreement") between the Depositor and Wilmington Trust Company, as owner
trustee (as amended and supplemented from time to time, the "Owner Trustee",
which term includes any successor entity under the Trust Agreement), a summary
of certain of the pertinent provisions of which is set forth hereinafter. This
Investor Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Investor Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Investor Certificate is one of a duly authorized issue of investor
certificates (herein called the "Investor Certificates") issued under the Trust
Agreement to which reference is hereby made for a statement of the respective
rights thereunder of the Depositor, the Owner Trustee and the Holders of the
Investor Certificates and the terms upon which the Investor Certificates are
executed and delivered. All terms used in this Investor Certificate which are
defined in the Trust Agreement shall have the meanings assigned to them in the
Trust Agreement. The Trust Estate consists of the Mortgage Collateral in the
American Residential Eagle Bond Trust 1998-1. The rights of the Holders of the
Investor Certificates are subordinated to the rights of the Holders of the
Bonds, as set forth in the Indenture.
There will be distributed on the 25th day of each month or, if such 25th
day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing in June, 1998, to the Person in whose name this Investor Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such Payment Date (the "Record Date"), such
Certificateholder's Percentage Interest (obtained by dividing the Denomination
of this Investor Certificate by the aggregate Denominations of all Investor
Certificates) in the amount to be distributed to Certificateholders on such
Payment Date.
The Certificateholder, by its acceptance of this Investor Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Distribution Account that have been released from the Lien of the Indenture for
payment hereunder and that neither the Owner Trustee in its individual capacity
nor the Depositor is personally liable to the Certificateholders for any amount
payable under this Investor Certificate or the Trust Agreement or, except as
expressly provided in the Trust Agreement, subject to any liability under the
Trust Agreement.
The Holder of this Investor Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Investor Certificate are
subordinated to the rights of the Bondholders as described in the Indenture,
dated as of June 1, 1998, between the Trust and First Union National Bank, as
Indenture Trustee (the "Indenture").
The Depositor and each Certificateholder, by acceptance of an Investor
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Investor Certificates for federal, state and local income tax
purposes as an equity interest in the Trust.
Each Certificateholder, by its acceptance of an Investor Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Depositor, or join in any institution against the Depositor or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to the Investor Certificates, the Bonds, the Trust Agreement or any of the
Operative Documents.
Distributions on this Investor Certificate will be made as provided in the
Trust Agreement by the Certificate Paying Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Investor Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Investor Certificate
will be made after due notice by the Certificate Paying Agent of the pendency
of such distribution and only upon presentation and surrender of this Investor
Certificate at the office or agency maintained by the Certificate Registrar for
that purpose by the Trust in the State of Delaware.
Reference is hereby made to the further provisions of this Investor
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Investor Certificate shall not entitle the Holder hereof
to any benefit under the Trust Agreement or be valid for any purpose.
THIS INVESTOR 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 Investor Certificate to be duly
executed.
AMERICAN RESIDENTIAL EAGLE BOND TRUST 1998-1
By: Wilmington Trust Company
________________________________________________
not in its individual capacity
but solely as Owner Trustee
Dated:__________________________________________
By:_____________________________________________
Authorized Signatory
[REVERSE OF INVESTOR CERTIFICATE]
The Investor Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Indenture Trustee, the
Owner Trustee or any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as expressly set forth or
contemplated herein or in the Trust Agreement or the Operative Documents. In
addition, this Investor Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Mortgage Collateral, all as more
specifically set forth herein. A copy of the Trust Agreement may be examined by
any Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by the consent of the Insurer and an
Opinion of Counsel to the effect that such amendment complies with the
provisions of the Trust Agreement and, if the Depositor was not the holder of
100% of the Investor Certificates, would not cause the Trust to be subject to
an entity level tax. If the purpose of the amendment is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered, it shall not be necessary to obtain the consent of any Holder, but the
Owner Trustee shall be furnished with a letter from the Rating Agencies that
the amendment will not result in the downgrading or withdrawal of the rating
then assigned to any Bond. If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that any Bond or Investor
Certificate is outstanding, it shall not be necessary to obtain the consent of
the any Holder, but the Owner Trustee shall be furnished with an Opinion of
Counsel that such amendment is necessary or helpful to prevent the imposition
of such taxes and is not materially adverse to any Holder. If the purpose of
the amendment is to add or eliminate or change any provision of the Trust
Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Bond or (b) the consent of Holders of the Investor Certificates
evidencing a majority of the Percentage Interests of the Investor Certificates
and the Indenture Trustee; PROVIDED, HOWEVER, that no such amendment shall (i)
reduce in any manner the amount of, or delay the time of, payments received
that are required to be distributed on any Investor Certificate without the
consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Investor Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Investor Certificates then outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Investor Certificate is registerable in
the Certificate Register upon surrender of this Investor Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trust in the State of Delaware, accompanied by a
written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Investor Certificates of
authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is the Owner Trustee.
Except as provided in the Trust Agreement, the Investor Certificates are
issuable only in a minimum Percentage Interest of 10%. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Investor
Certificates are exchangeable for new Investor Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar
and any agent of the Owner Trustee, the Certificate Paying Agent, or the
Certificate Registrar may treat the Person in whose name this Investor
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any
such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
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 Investor Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________________________
to transfer said Investor Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
____________________________________*/
Signature Guaranteed:
____________________________________*/
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Investor Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
__________________ to for the account of ______________________________,
account number _______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to _______________________________.
_________________________________________
Signature of assignee or agent
(for authorization of wire transfer only)
EXHIBIT B
FORM OF MANAGEMENT AGREEMENT
EXHIBIT C
FORM OF CERTIFICATE OF TRUST OF
AMERICAN RESIDENTIAL EAGLE BOND TRUST 1998-1
THIS Certificate of Trust of American Residential Eagle Bond Trust 1998-1
(the "Trust"), is being duly executed and filed by the Undersigned, a Delaware
banking corporation, as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. CODE, Sections 3801 ET SEQ.) (the "Act")
1. NAME. The name of the business trust formed hereby is American
Residential Eagle Bond Trust 1998-1.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate Trust shall be effective June 17,
1998.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust in accordance with Section 3811(a) of
the Act.
Wilmington Trust Company
By:_______________________________________
Name:
Title:
EXHIBIT D
FORM OF RULE 144A INVESTMENT LETTER
Description of Rule 144A Securities, including numbers:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner,
or made any general solicitation by means of general advertising or in any
other manner, or taken any other action that would constitute a distribution of
the Rule 144A Securities under the Securities Act of 1933, as amended (the
"1933 Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act to require registration pursuant
thereto, and that the Seller has not offered the Rule 144A Securities to any
person other than the Buyer or another "qualified institutional buyer" as
defined in Rule 144A under the ▇▇▇▇ ▇▇▇.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee and the Depositor (as defined in the Trust Agreement (the "Agreement"),
dated as of ______, ___ between American Residential Eagle, Inc., as Depositor
and ____________, as Owner Trustee pursuant to Section 3.03 of the Agreement as
follows:
a. The Buyer understands that Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding the
Rule 144A Securities that it has requested from the Seller, the Trustee,
the Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security from, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under the
1933 Act or that would render the disposition of the Rule 144A Securities
a violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any
person to act, in such manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. The Buyer is aware that the sale to it is being made in reliance on
Rule 144A. The Buyer is acquiring the Rule 144A Securities for its own
account or the accounts of other qualified institutional buyers,
understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the Seller,
the Trustee, Owner Trustee, Master Servicer and the Depositor that either (1)
the Buyer is (A) not an employee benefit plan (within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), or a plan (within the meaning of Section 4975(e)(1) of the Internal
Revenue Code of 1986 ("Code"), which (in either case) is subject to ERISA or
Section 4975 of the Code (both a "Plan"), and (B) is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of, as
named fiduciary of, a trustee of, or with "plan assets" of a Plan, or (2) the
Buyer understands that registration of transfer of any Rule 144A Securities to
any Plan, or to any Person acting on behalf of any Plan, will not be made
unless such Plan delivers an opinion of its counsel, addressed and satisfactory
to the Certificate Registrar and the Depositor, to the effect that the purchase
and holding of the Rule 144A Securities by, on behalf of or with "plan assets"
of any Plan would not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, and would not subject the
Depositor, the Master Servicer, the Trustee or the Trust to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in the Agreement or any other liability.]
4. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of
the date set forth below.
____________________________________ _______________________________________
Print Name of Seller Print Name of Buyer
By:_________________________________ By:____________________________________
Name: Name:
Title: Title:
Taxpayer Identification Taxpayer Identification
No._________________________________ No.____________________________________
Date:_______________________________ Date:__________________________________
ANNEX 1 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $_____________1 in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described
in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking and
is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, A COPY OF WHICH IS ATTACHED HERETO.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a
State or Federal authority having supervision over any such institutions
or is a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated units
latest annual financial statements.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State or territory or the District of Columbia.
___________________________
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless buyer is a dealer, and, in that case, buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
___ STATE OR LOCAL PLAN. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISOR. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act of
1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the meaning
of Title I of the Employee Retirement Income Security Act of 1974, but is
not a trust fund that includes as participants individual retirement
accounts of H.R. 10 plans.
3. The term "Securities" as used herein DOES NOT INCLUDE (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities and Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
Will the Buyer be purchasing the Rule 144A Securities
____ ____ only for the Buyer's own account?
Yes No
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will not only purchase for the account of a third party that at the time
is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
____________________________________
Print Name of Buyer
By:_________________________________
Name:
Title:
Date:_______________________________
ANNEX 2 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR BUYERS THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows in connection with the Rule
144A investment representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a family of investment
companies (as defined below), is such an officer of the adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and
(ii) as marked below, the Buyer alone, or the Buyer's family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year. For purposes of determining the amount of securities owned by the Buyer
of the Buyer's family of Investment Companies, the cost of such securities was
used.
____ The Buyer owned $__________ in securities (other that the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $__________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment advisor or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "Securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
_______________________________________
PRINT NAME OF BUYER
BY:____________________________________
NAME:
TITLE:
IF AN ADVISER:
______________________________________
PRINT NAME OF BUYER
DATE:_________________________________
EXHIBIT E
CERTIFICATE OF NON-FOREIGN STATUS
This certificate of Non-Foreign status ("certificate") is delivered
pursuant to Section 3.03 of the Trust Agreement, dated as of _________ __,
19____ (the "Trust Agreement") between American Residential Eagle, Inc., as
depositor and ___________________, as owner trustee, in connection with the
acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner (the "Beneficial Owner"), or nominee on behalf of the
Beneficial Owner of the Investor Certificates, (the "Investor Certificate").
Capitalized terms used but not defined in this certificate have the respective
meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III. In addition, each holder
shall submit with the certificate an IRS Form W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446
of the Internal Revenue Code (relating to withholding tax on foreign partners)
do not apply in respect of the Investor Certificate held by the undersigned,
the undersigned hereby certifies:
PART I - COMPLETE EITHER A OR B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is) not an Non-resident alien for
purposes of U.S. Income Taxation;
2. My (The Beneficial Owner's) name and home address are:
______________________________________________________________
______________________________________________________________
_________________________________________________________; and
3. My (The Beneficial Owner's) U.S. Taxpayer Identification
Number (Social Security Number) is _________________.
B. Corporate, Partnership or other entity as Beneficial Owner
1. (Name of the Beneficial Owner) is not a foreign corporation,
foreign partnership, foreign trust or foreign estate (as
those terms are defined in the Code and Treasury Regulations)
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is ___________________________;
and
3. The Beneficial Owner's U.S. employer identification number is
_____________.
PART II - NOMINEES
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
_____ an IRS Form W-9
_____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
PART III - DECLARATION
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
________________________________
Name
________________________________
Title (if applicable)
________________________________
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney
must accompany this certificate.
EXHIBIT F
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
[CERTIFICATE REGISTRAR]
RE: AMERICAN RESIDENTIAL EAGLE BOND TRUST [199__-__]
INVESTOR CERTIFICATES
(THE "INVESTOR CERTIFICATES")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned certificates, we
certify that (a) we understand that the Investor Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the Investor
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the depositor concerning the purchase of the Investor Certificates
and all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Investor Certificates, (d) we are not an
employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan, (e) we are acquiring the Investor Certificates for investment
for our own account and not with a view to any distribution of such Investor
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Investor Certificates in accordance with clause (g)
below), (f) we have not offered or sold any Investor Certificates to, or
solicited offers to buy any Investor Certificates from, any person, or
otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Investor
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt from
such registration requirements, and if requested, we will at our expense
provide an opinion of counsel satisfactory to the addressees of this Investment
Letter that such sale, transfer or other disposition may be made pursuant to an
exemption from the Act, (2) the purchaser or transferee of such Investor
Certificate has executed and delivered to you an Investment Letter to
substantially the same effect as this Investment Letter, and (3) the purchaser
or transferee has otherwise complied with any conditions for transfer set forth
in the Trust Agreement.
Very truly yours,
[TRANSFEREE]
By:_________________________________
Authorized Officer
EXHIBIT G
TRANSFER CERTIFICATE
[Owner Trustee]
[Certificate Paying Agent]
Re: PROPOSED TRANSFER OF INVESTOR CERTIFICATES
Ladies and Gentlemen:
This certification is being made by __________________ (the "Proposed
Transferee") in connection with the proposed transfer to the Proposed
Transferee of an investor certificate (the "Investor Certificate") representing
__% fractional undivided interest in American Residential Eagle Bond Trust
[199__-__] (the "Trust") created pursuant to a Deposit Trust Agreement, dated
as of ___________ __, 199_ (such agreement, as amended, being referred to
herein as the "Deposit Trust Agreement") between American Residential Eagle,
Inc. and ____________________, as Owner Trustee. Initially capitalized terms
used but not defined herein have the meanings assigned to them in the Deposit
Trust Agreement. The Proposed Transferee hereby certifies as follows:
1. The undersigned is 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.
2. The Proposed Transferee understands that (a) the Investor Certificates
have not been and will not be registered or qualified under the Securities Act,
or the securities laws of any state, (b) neither the Trust nor the Owner
Trustee is required, and neither intends, to so register or qualify the
Investor Certificates, and (c) the Investor Certificates cannot be resold
unless (i) they are registered and qualified under the Securities Act and the
applicable state securities laws or (ii) an exemption from registration and
qualification is available.
3. The Proposed Transferee is acquiring the Investor Certificate for its
own account for investment only and not with a view to or for sale or other
transfer in connection with any distribution of the Investor Certificate in any
manner that would violate the Securities Act or any applicable state securities
laws.
4. The Proposed Transferee (a) is an accredited investor having such
knowledge and experience in financial and business matters, and in particular
in such matters related to securities similar to the Investor Certificate, such
that it is capable of evaluating the merits and risks of investment in the
Investor Certificate and (b) is able to bear the economic risks of such an
investment.
5. The Proposed Transferee will not authorize nor has it authorized any
person (a) to offer, pledge, sell, dispose of or otherwise transfer any
Investor Certificate, any interest in any Investor Certificate or any other
similar security to any person in any manner, (b) to solicit any offer to buy
or to accept a pledge, disposition or other transfer of any Investor
Certificate, any interest in any Investor Certificate or any other similar
security from any person in any manner, (c) otherwise to approach or negotiate
with respect to any Investor Certificate, any interest in any Investor
Certificate or any other similar security with any person in any manner, (d) to
make any general solicitation by means of general advertising or in any other
manner, or (e) to take any other action that would constitute a distribution of
any Investor Certificate under the Securities Act, that would render the
disposition of any Investor Certificate a violation of Section 5 of the
Securities Act or any state securities law, or that could require registration
or qualification pursuant thereto. Neither the Proposed Transferee nor anyone
acting on its behalf has offered any Investor Certificate for sale or made any
general solicitation by means of general advertising or in any other manner
with respect to the Investor Certificate. The Proposed Transferee will not sell
or otherwise transfer any Investor Certificates, except in compliance with the
provisions of the Deposit Trust Agreement.
Date:_____________________________. _______________________________________
Name of Proposed Transferee
_______________________________________
Signature
_______________________________________
Name
_______________________________________
Title