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Exhibit 4.2.1
ADVANTA MORTGAGE HOLDING TRUST 1998-4
TRUST AGREEMENT
between
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
as Sponsor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of November 1, 1998
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TABLE OF CONTENTS
Page
ARTICLE I. Definitions....................................................................................... 1
SECTION 1.1 Capitalized Terms............................................................... 1
SECTION 1.2 Other Definitional Provisions................................................... 3
ARTICLE II. Organization..................................................................................... 4
SECTION 2.1 Name............................................................................ 4
SECTION 2.2 Office.......................................................................... 4
SECTION 2.3 Purposes and Powers............................................................. 4
SECTION 2.4 Appointment of Owner Trustee.................................................... 6
SECTION 2.5 Initial Capital Contribution of Trust Estate.................................... 6
SECTION 2.6 Declaration of Trust............................................................ 6
SECTION 2.7 Liability....................................................................... 6
SECTION 2.8 Title to Trust Property......................................................... 6
SECTION 2.9 Situs of Trust.................................................................. 6
SECTION 2.10 Representations and Warranties of the Sponsor................................... 7
SECTION 2.11 Covenants of the Sponsor........................................................ 7
SECTION 2.12 Covenants of the Certificateholders............................................. 8
SECTION 2.13 Investment Company.............................................................. 9
ARTICLE III. Certificates and Transfer of Interests.......................................................... 9
SECTION 3.1 Initial Ownership............................................................... 9
SECTION 3.2 The Certificates................................................................ 9
SECTION 3.3 Authentication of Certificates.................................................. 9
SECTION 3.4 Registration of Transfer and Exchange of Certificates........................... 10
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates............................... 10
SECTION 3.6 Persons Deemed Certificateholders............................................... 10
SECTION 3.7 Access to List of Certificateholders' Names and Addresses....................... 10
SECTION 3.8 Maintenance of Office or Agency................................................. 10
SECTION 3.9 ERISA........................................................................... 11
SECTION 3.10 Restrictions on Transfer of Certificates........................................ 11
SECTION 3.11 Acceptance of Obligations....................................................... 12
SECTION 3.12 Payments on Certificates........................................................ 12
ARTICLE IV. Voting Rights and Other Actions.................................................................. 12
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain Matters.............. 12
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters.................... 13
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy......................... 13
SECTION 4.4 Restrictions on Certificateholders' Power....................................... 13
SECTION 4.5 Majority Control................................................................ 14
SECTION 4.6 Rights of Note Insurer.......................................................... 14
ARTICLE V. Certain Duties.................................................................................... 14
SECTION 5.1 Accounting and Records to the Certificateholders, the Internal Revenue
Service and Others........................................................... 14
SECTION 5.2 Reserved........................................................................ 14
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ARTICLE VI. Authority and Duties of Owner Trustee............................................................ 15
SECTION 6.1 General Authority............................................................... 15
SECTION 6.2 General Duties.................................................................. 15
SECTION 6.3 Action upon Instruction......................................................... 15
SECTION 6.4 No Duties Except as Specified in this Agreement or in Instructions.............. 16
SECTION 6.5 No Action Except under Specified Documents or Instructions...................... 16
SECTION 6.6 Restrictions.................................................................... 16
ARTICLE VII. Concerning the Owner Trustee.................................................................... 16
SECTION 7.1 Acceptance of Trust and Duties.................................................. 16
SECTION 7.2 Furnishing of Documents......................................................... 17
SECTION 7.3 Representations and Warranties.................................................. 17
SECTION 7.4 Reliance; Advice of Counsel..................................................... 18
SECTION 7.5 Not Acting in Individual Capacity............................................... 18
SECTION 7.6 Owner Trustee Not Liable for Certificates or Mortgage Loans..................... 18
SECTION 7.7 Owner Trustee May Own Certificates.............................................. 19
SECTION 7.8 Payments from Owner Trust Estate................................................ 19
SECTION 7.9 Doing Business in Other Jurisdictions........................................... 19
ARTICLE VIII. Compensation of Owner Trustee.................................................................. 19
SECTION 8.1 Owner Trustee's Fees and Expenses............................................... 19
SECTION 8.2 Indemnification................................................................. 19
SECTION 8.3 Payments to the Owner Trustee................................................... 20
SECTION 8.4 Non-recourse Obligations........................................................ 20
ARTICLE IX. Termination of Trust Agreement................................................................... 20
SECTION 9.1 Termination of Trust Agreement.................................................. 20
ARTICLE X. Successor Owner Trustees and Additional Owner Trustees............................................ 21
SECTION 10.1 Eligibility Requirements for Owner Trustee...................................... 21
SECTION 10.2 Resignation or Removal of Owner Trustee......................................... 21
SECTION 10.3 Successor Owner Trustee......................................................... 22
SECTION 10.4 Merger or Consolidation of Owner Trustee........................................ 23
SECTION 10.5 Appointment of Co-Owner Trustee or Separate Owner Trustee....................... 23
ARTICLE XI. Miscellaneous.................................................................................... 24
SECTION 11.1 Supplements and Amendments...................................................... 24
SECTION 11.2 No Legal Title to Owner Trust Estate in Certificateholders...................... 25
SECTION 11.3 Limitations on Rights of Others................................................. 25
SECTION 11.4 Notices......................................................................... 25
SECTION 11.5 Severability.................................................................... 25
SECTION 11.6 Separate Counterparts........................................................... 25
SECTION 11.7 Assignments; Note Insurer....................................................... 25
SECTION 11.8 No Petition..................................................................... 26
SECTION 11.9 No Recourse..................................................................... 26
SECTION 11.10 Headings........................................................................ 26
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SECTION 11.11 GOVERNING LAW................................................................... 26
SECTION 11.12 Master Servicer................................................................. 26
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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TRUST AGREEMENT relating to Advanta Mortgage Holding Trust
1998-4 dated as of November 1, 1998 between ADVANTA MORTGAGE CONDUIT SERVICES,
INC., a Delaware corporation as Sponsor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation as Owner Trustee.
ARTICLE I.
Definitions
SECTION 1.1 Capitalized Terms. For the purposes of this Agreement, the following
terms shall have the meanings set forth below.
"Affiliate" shall mean with respect to any specified Person, a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, or owns, directly or
indirectly, 50% or more of, the Person specified.
"Agreement" shall mean this Holding Trust Trust Agreement, as
the same may be amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in
Section 3.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et. seq. as the same may be amended
from time to time.
"Certificate" means a trust certificate evidencing the
beneficial ownership interest of a Certificateholder in Holding Trust,
substantially in the form of Exhibit A attached hereto.
"Certificateholder" or "Holder" shall initially mean [the
Sponsor], until and unless [Sponsor] transfers any or all of its interest in the
Certificate to any other Person and thereafter "Certificateholder" shall also
mean or include such Person.
"Certificate of Trust" shall mean the Certificate of Trust in
the form of Exhibit B to be filed for Holding Trust pursuant to Section 3810(a)
of the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean
the register maintained and the registrar appointed pursuant to Section 3.4.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration, or at such other address as the Owner
Trustee may designate by notice to the Certificateholders, the Sponsor and
Holding Trust, or the principal corporate trust office of any successor Owner
Trustee (the address of which the successor owner trustee will notify the
Certificateholders and the Sponsor).
"Definitive Certificates" shall mean Certificates issued in
certificated, fully registered form.
"ERISA" shall have the meaning assigned to such term in
Section 3.9.
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"Expenses" shall have the meaning assigned to such term in
Section 8.2.
"Holding Trust" shall mean Advanta Mortgage Holding Trust
1998-4.
"Indemnification Agreement" shall mean the Indemnification
Agreement dated as of November 24, 1998 between the Note Insurer and Xxxxxx
Xxxxxxx & Co. Incorporated.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.2.
"Indenture Trustee" shall initially mean Bankers Trust Company
of California, N.A., in its capacity as indenture trustee, including its
successors in interest, until and unless a successor Person shall have become
the Indenture Trustee pursuant to the Trust A Sale and Servicing Agreement, the
Trust B Sale and Servicing Agreement or the Trust C Sale and Servicing Agreement
and thereafter "Indenture Trustee" shall mean such successor Person.
"Instructing Party" shall have the meaning assigned to such
term in Section 6.3.
"Insurance Agreement" shall mean the Insurance and Indemnity
Agreement dated as of November 24, 1998 among the Note Insurer, the Sponsor, the
Master Servicer, Trust A, Trust B, Trust C and the Indenture Trustee.
"Majority Certificateholders" shall mean more than 50% by
principal amount of the Certificateholders.
"Master Servicer" shall mean Advanta Mortgage Corp. USA, a
Delaware corporation, and its permitted successors and assigns.
"Note Insurer" shall mean AMBAC Assurance Corporation, or its
successor in interest.
"Operative Documents" shall mean this Agreement, the Trust A
Sale and Servicing Agreement, Trust B Sale and Servicing Agreement, the Trust C
Sale and Servicing Agreement, the Master Transfer Agreement, the Trust A Note
Policy, the Trust B Note Policy, the Trust C Note Policy, the Insurance
Agreement, the Indemnification Agreement, the Trust A Indenture, the Trust B
Indenture, the Trust C Indenture.
"Originators" shall mean any entity from which the Sponsor
has purchased (or, in the case of Subsequent Mortgage Loans, will purchase)
Mortgage Loans, or Advanta Mortgage Corp. USA, Advanta Mortgage Corp.
Midatlantic, Advanta Mortgage Corp. Midatlantic II, Advanta Mortgage Corp.
Midwest, Advanta Mortgage Corp. of New Jersey, Advanta Mortgage Corp. Northeast,
Advanta National Bank and Advanta Finance Corp.
"Owner Trust Estate" shall mean all right, title and interest
of Holding Trust in and to the Trust Certificates and related property and
rights held by Holding Trust from time to time pursuant to this Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor Owner Trustee hereunder.
"Record Date" shall mean with respect to any Payment Date, the
close of business on the last Business Day immediately preceding such Payment
Date, provided, that if the Certificates or Trust Notes are in definitive form,
the Record Date with respect to each Payment Date shall be the last Business Day
of the calendar month immediately preceding the calendar month in which such
Payment Date occurs.
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"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Sponsor" shall mean Advanta Mortgage Conduit Services, Inc.
in its capacity as Sponsor hereunder.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust A" shall mean the trust established by the Trust A
Trust Agreement.
"Trust A Sale and Servicing Agreement" shall mean the Trust A
Sale and Servicing Agreement relating to Trust A among Trust A, Advanta Mortgage
Conduit Services, Inc., as Sponsor, Advanta Mortgage Corp. USA, as Master
Servicer and the Indenture Trustee, dated as of November 1, 1998, as the same
may be amended and supplemented from time to time.
"Trust A Trust Agreement": The Trust Agreement relating to
Trust A dated as of November 1, 1998 between the Sponsor and the Owner Trustee.
"Trust B" shall have the meaning assigned to it in the Trust
B Sale and Servicing Agreement.
"Trust B Sale and Servicing Agreement": The Trust B Sale and
Servicing Agreement relating to Trust B among Trust B, the Sponsor, the Master
Servicer and the Indenture Trustee, dated as of November 1, 1998, as the same
may be amended and supplemented from time to time.
"Trust C" shall have the meaning assigned to it in the Trust
C Sale and Servicing Agreement.
"Trust C Sale and Servicing Agreement": The Trust C Sale and
Servicing Agreement relating to Trust C among Trust C, the Sponsor, the Master
Servicer and the Indenture Trustee, dated as of November 1, 1998, as the same
may be amended and supplemented from time to time.
"Trust Certificates" shall mean collectively, the
Certificates issued by Trust A, Trust B and Trust C.
"Trust Notes" shall mean collectively, the Class A Notes, the
Class B Notes and the Class C Notes.
SECTION 1.2 Other Definitional Provisions. (a) Capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Operative Documents.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect on the
date of this Agreement or any such certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of
such
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terms under generally accepted accounting principles, the definitions contained
in this Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
SECTION 2.1 Name. There is hereby formed a trust to be known
as "Advanta Mortgage Holding Trust 1998-4", in which name the Owner Trustee may
conduct the business of Holding Trust, make and execute contracts and other
instruments on behalf of Holding Trust and xxx and be sued.
SECTION 2.2 Office. The office of Holding Trust shall be in
care of the Owner Trustee at the Corporate Trust Office or at such other address
as the Owner Trustee may designate by written notice to the Certificateholders
and the Sponsor.
SECTION 2.3 Purposes and Powers(a). The purpose of Holding
Trust is, and Holding Trust shall have the power and authority, to
engage in the following activities:
(i) hold and transfer the Trust Certificates issued by Trust
A, Trust B and Trust C;
(ii) to assign, grant, transfer and convey to the
Certificateholders such distributions as the Holding Trust may receive
pursuant to its beneficial interest in the Trust Certificates;
(iii) to enter into and perform its obligations under the
Operative Documents to which it is a party;
(iv) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(v) subject to compliance with the Operative Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders.
Holding Trust is hereby authorized to engage in the foregoing activities.
(b) Holding Trust shall not engage in any activity other than
those described in Section 2.3(a) or other than as required or authorized by the
terms of this Agreement or the Operative Documents. In addition, Holding Trust
shall not:
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(i) incur any indebtedness;
(ii) engage in any dissolution, liquidation, consolidation,
merger or sale of assets;
(iii) engage in any business activity in which it is not
currently engaged;
(iv) take any action that might cause Holding Trust to become
insolvent; or
(v) form, or caused to be formed, any subsidiaries;
(c) Holding Trust shall:
(i) maintain books and records separate from any other person
or entity;
(ii) maintain its bank accounts separate from any other person
or entity;
(iii) not commingle its assets with those of any other person
or entity and will hold all of its assets in its own name;
(iv) conduct its own business in its own name;
(v) maintain separate financial statements, showing its assets
and liabilities separate and apart from those of any other person or
entity and not have its assets listed on the financial statement of any
other entity;
(vi) file its tax returns separate from those of any other
entity and not file a consolidated federal income tax return with any
other entity;
(vii) except as set forth herein, pay its own liabilities and
expenses only out of its own funds;
(viii) observe all organizational formalities;
(ix) enter into transactions with affiliates only where each
such transaction is intrinsically fair, commercially reasonable, and on
the same terms as would be available in an arm's-length transaction
with a person or entity that is not an affiliate;
(x) pay the salaries of its own employees from its own funds;
(xi) not guarantee or become obligated for the debts of any
other entity or person;
(xii) not hold out its credit as being available to satisfy
the obligation of any other person or entity;
(xiii) hold itself out as a separate entity;
(xiv) correct any known misunderstanding regarding its
separate entity;
(xv) not identify itself as a division of any other person or
entity; and
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(xvi) maintain adequate capital in light of its contemplated
business operations.
SECTION 2.4 Appointment of Owner Trustee. The Sponsor hereby
appoints the Owner Trustee as trustee of Holding Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Business Trust Statute.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The
Sponsor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Sponsor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate.
On or prior to the Closing Date, the Owner Trustee will also, upon receipt
thereof, acknowledge on behalf of Holding Trust, receipt of the Trust
Certificates. The Sponsor shall pay the organizational expenses of Holding Trust
as they may arise.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the
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. It is the
intention of the parties hereto that, solely for tax purposes the Holding Trust
shall elect on Internal Revenue Service Form 8832 within 75 days of its
formation to be classified as an association (and thus as a corporation pursuant
to Section 301.7701-2(b)(2) of the regulations promulgated under the Code). The
Holding Trust shall file or cause to be filed any additional forms or documents
as may be required to make such election under the applicable federal, state and
local law. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and to the extent not inconsistent
herewith, in the Business Trust Statute with respect to accomplishing the
purposes of the Holding Trust. The Owner Trustee shall file the Certificate of
Trust with the Secretary of State.
SECTION 2.7 Liability. No Holder shall have any personal
liability for any liability or obligation of Holding Trust.
SECTION 2.8 Title to Trust Property. (a) Legal title to all
of the Owner Trust Estate shall be vested at all times in Holding Trust as a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any
part of the Trust Property of any of Trust A, Trust B or Trust C. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial ownership interest therein only in accordance with
Article IX. No transfer, by operation of law or otherwise, of any right, title
or interest by any Certificateholder of its ownership interest in the Owner
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Property.
SECTION 2.9 Situs of Trust. Holding Trust will be located and
administered in the State of Delaware. All bank accounts, if any, maintained by
the Owner Trustee on behalf of Holding Trust shall be located in the State of
Delaware or the State of New York. Payments will be received by Holding Trust
only in Delaware or New York and payments will be made by Holding Trust only
from Delaware or New York. Holding Trust shall not have any employees in any
state other than Delaware; provided, however, that nothing herein shall restrict
or prohibit the Owner Trustee, the
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Master Servicer or any agent of Holding Trust from having employees within or
without the State of Delaware. The only office of Holding Trust will be at the
Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the Sponsor.
The Sponsor makes the following representations and warranties on which the
Owner Trustee relies in accepting the Owner Trust Estate in trust and issuing
the Certificates.
(a) The Sponsor is duly organized and validly existing as a
Delaware corporation with power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted and is proposed to be conducted pursuant to this Agreement
and the Operative Documents;
(b) It is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of its property,
the conduct of its business and the performance of its obligations under this
Agreement and the Operative Documents requires such qualification;
(c) The Sponsor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement has been duly authorized
by the Sponsor by all necessary corporate action. The Sponsor has duly executed
this Agreement and this Agreement constitutes a legal, valid and binding
obligation of the Sponsor enforceable against the Sponsor, in accordance with
its terms.
(d) To the best knowledge of the Sponsor, no consent,
license, approval or authorization or registration or declaration with, any
Person or with any governmental authority, bureau or agency is required in
connection with the execution, delivery or performance of this Agreement and the
Operative Documents, except for such as have been obtained, effected or made;
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Sponsor, or any material indenture, agreement or
other instrument to which the Sponsor is a party or by which it is bound; nor
result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Operative Documents); nor violate any law or, to the
best of the Sponsor's knowledge, any order, rule or regulation applicable to the
Sponsor of any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Sponsor or its properties; and
(f) There are no proceedings or investigations pending or, to
its knowledge threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (A) asserting the invalidity of this
Agreement or any of the Operative Documents, (B) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions contemplated
by this Agreement or any of the Operative Documents, (C) seeking any
determination or ruling that might materially and adversely affect its
performance of its obligations under, or the validity or enforceability of, this
Agreement or any of the Operative Documents, or (D) seeking to adversely affect
the federal income tax or other federal, state or local tax attributes of the
Certificates.
SECTION 2.11 Covenants of the Sponsor. The Sponsor agrees and
covenants for the benefit of each Certificateholder, the Note Insurer and the
Owner Trustee, during the term of this Agreement, and to the fullest extent
permitted by applicable law, that:
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(a) it shall not create, incur or suffer to exist any
indebtedness or engage in any business, except, in each case, as permitted by
its certificate of incorporation and the Operative Documents;
(b) it shall not, for any reason, institute proceedings for
Holding Trust to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against Holding Trust, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to the bankruptcy of Holding Trust, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of Holding Trust or a substantial part
of the property of Holding Trust or cause or permit Holding Trust to make any
assignment for the benefit of creditors, or admit in writing the inability of
Holding Trust to pay its debts generally as they become due, or declare or
effect a moratorium on the debt of Holding Trust or take any action in
furtherance of any such action;
(c) it shall obtain from each counterparty to each Operative
Document to which it or Holding Trust is a party and each other agreement
entered into on or after the date hereof to which it or Holding Trust is a
party, an agreement by each such counterparty that prior to the occurrence of
the event specified in Section 9.1(e) such counterparty shall not institute
against, or join any other Person in instituting against, it or Holding Trust,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United States or
any state of the United States; and
(d) it shall not, for any reason, withdraw or attempt to
withdraw from this Agreement, dissolve, institute proceedings for it to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against it, or file a petition seeking or consenting
to reorganization or relief under any applicable federal or state law relating
to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of it or a
substantial part of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debts generally as they
become due, or declare or effect a moratorium on its debt or take any action in
furtherance of any such action.
SECTION 2.12 Covenants of the Certificateholders. Each
Certificateholder agrees:
(a) to be bound by the terms and conditions of the
Certificates and of this Agreement, including any supplements or amendments
hereto and to perform the obligations of a Certificateholder as set forth
therein or herein, in all respects as if it were a signatory hereto. This
undertaking is made for the benefit of Holding Trust, the Owner Trustee, and all
other Certificateholders present and future;
(b) to hereby appoint the Sponsor as such Certificateholder's
agent and attorney-in-fact to sign all corporate, federal, state and local
income or franchise tax returns filed on behalf of Holding Trust, and agree
that, if requested by Holding Trust, it will sign such tax returns on behalf of
Holding Trust. Each Certificateholder also hereby agrees that in its tax returns
it will not take any position inconsistent with those taken in any tax returns
that may be filed by Holding Trust;
(c) if such Certificateholder is other than an individual or
other entity holding its Certificate through a broker who reports securities
sales on Form 1099-B, to notify the Owner Trustee of any transfer by it of a
Certificate in a taxable sale or exchange, within 30 days of the date of the
transfer; and
(d) until the completion of the events specified in Section
9.1(e), not to, for any reason, institute proceedings for Holding Trust or the
Sponsor to be adjudicated a bankrupt or insolvent, or consent to the institution
of bankruptcy or insolvency proceedings against Holding Trust, or file a
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petition seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Sponsor or Holding Trust or a substantial part of its property,
or cause or permit the Sponsor or Holding Trust to make any assignment for the
benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or declare or effect a moratorium on its debt or
take any action in furtherance of any such action.
Except as provided in this Section 2.12, and notwithstanding
any other provision to the contrary in this Agreement, no Certificateholder
shall be deemed to have adopted, be bound by, or succeed in any way to any
representation by, or duty of indemnification by or any other duty of, Holding
Trust, including those contained in Sections 2.10, 8.2 or elsewhere herein.
SECTION 2.13 Investment Company. Neither the Sponsor nor any
Certificateholders shall take any action that would cause the Trust to become an
"Investment Company" required to register under the Investment Company Act of
1940, as amended.
ARTICLE III.
Certificates and Transfer of Interests
SECTION 3.1 Initial Ownership. Upon the formation of Holding
Trust by the contribution by the Sponsor pursuant to Section 2.5, the Owner
Trustee, contemporaneously therewith, having full power, authority, and
authorization to do so, has executed, authenticated, dated, issued, and
delivered, in the name and on behalf of Holding Trust, to the Sponsor, one or
more Certificates representing in the aggregate a 100% interest in Holding
Trust, and the Sponsor shall direct that such Certificate(s) on the Certificate
Register be registered in the name of the Sponsor, initially. Accordingly, the
Sponsor shall initially be the sole beneficiary of Holding Trust. Such
Certificate(s) are duly authorized, validly issued, and entitled to the benefits
of this Agreement. For so long as the Sponsor shall own such 100% interest in
Holding Trust, the Sponsor shall be the sole beneficial owner of Holding Trust.
SECTION 3.2 The Certificates. The Certificates shall be
issued in denominations of $1,000 and integral multiples of $1,000 in excess
thereof. The Certificates shall be executed on behalf of Holding Trust by manual
or facsimile signature of an authorized officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of Holding Trust, shall be validly issued and entitled to the benefit of
this Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. Subject to Section 2.13(d), a transferee of a
Certificate shall become a Certificateholder, and shall be entitled to the
rights and subject to the obligations of a Certificateholder hereunder, upon due
registration of such Certificate in such transferee's name pursuant to Section
3.4.
SECTION 3.3 Authentication of Certificates. Concurrently with
the initial registration of the Trust Certificates in the name of the Holding
Trust the Owner Trustee shall cause each Certificate, to be executed on behalf
of Holding Trust, authenticated and delivered to or upon the written order of
the Sponsor, signed by its chairman of the board, its president or any vice
president, its treasurer or any assistant treasurer without further corporate
action by the Sponsor, in authorized denominations. No Certificate shall entitle
its holder to any benefit under this Agreement, or shall be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee, by manual signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
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SECTION 3.4 Registration of Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Owner Trustee shall be the
initial Certificate Registrar.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar, the Owner Trustee and the
Note Insurer such security or indemnity as may be required by them to save each
of them harmless, then in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, the Owner Trustee on behalf of Holding
Trust shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like class, tenor and denomination. In
connection with the issuance of any new Certificate under this Section, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in Holding Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.6 Persons Deemed Certificateholders. Except as
otherwise stated herein, every Person by virtue of becoming a Certificateholder
in accordance with this Agreement and the rules and regulations of the
Certificate Registrar shall be deemed to be bound by the terms of this
Agreement. Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar and the Note Insurer and
any agent of the Owner Trustee, the Certificate Registrar and the Note Insurer,
may treat the Person in whose name any Certificate shall be registered in the
Certificate Register as the owner of such Certificate for the purpose of
receiving any distributions and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar or the Note Insurer nor any agent
of the Owner Trustee, the Certificate Registrar or the Note Insurer shall be
bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Master Servicer, the Sponsor or the Note Insurer, within 15 days after receipt
by the Owner Trustee of a request therefor from such Person in writing, a list,
of the names and addresses of the Certificateholders as of the most recent
Record Date. If three or more Certificateholders or one or more
Certificateholders evidencing not less than 25% by Percentage Interest apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Sponsor, the Master Servicer, the Owner
Trustee or the Note Insurer or any agent thereof accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 Maintenance of Office or Agency. The Owner
Trustee shall maintain in Wilmington, Delaware an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificates and the Operative Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office for such purposes. The Owner
Trustee shall give
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prompt written notice to the Sponsor, the Certificateholders and the Note
Insurer of any change in the location of the Certificate Register or any such
office or agency.
SECTION 3.9 ERISA. The Certificates may not be acquired by or
for the account of (i) an employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that
is subject to the provisions of Title I of ERISA, (ii) a plan (as defined in
Section 4975(e)(1) of the Code) that is subject to Section 4975 of the Code, or
(iii) any entity whose underlying assets include assets of a plan described in
(i) or (ii) by reason of such plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding its beneficial ownership interest in its
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
SECTION 3.10 Restrictions on Transfer of Certificates. (a)
The Certificates shall be assigned, transferred, exchanged, pledged, financed,
hypothecated or otherwise conveyed (collectively, for purposes of this Section
3.10 and any other Section referring to the Certificates, "transferred" or a
"transfer") only in accordance with this Section 3.10.
(b) No transfer of a Certificate shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. Except for the initial issuance of the
Certificate to the Sponsor, the Owner Trustee shall require (i) the transferee
to execute an investment letter acceptable to and in form and substance
satisfactory to the Owner Trustee and the Note Insurer certifying to the Owner
Trustee and the Note Insurer the facts surrounding such transfer, which
investment letter shall not be an expense of the Owner Trustee or the Note
Insurer or (ii) if the investment letter is not delivered, a written Opinion of
Counsel acceptable to and in form and substance satisfactory to the Owner
Trustee, the Note Insurer and the Sponsor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor from said Act or is being made pursuant to said Act, which Opinion of
Counsel shall not be an expense of the Owner Trustee, the Note Insurer or the
Sponsor. The Certificateholder desiring to effect such transfer shall, and does
hereby agree to, indemnify the Sponsor and the Owner Trustee and the Note
Insurer 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.
(c) The Certificates and any interest therein shall not be
transferred except upon satisfaction of the following conditions precedent: (i)
the Person that acquires a Certificate shall (A) be organized and existing under
the laws of the United States of America or any state thereof or the District of
Columbia; (B) expressly assume, by an agreement supplemental hereto, executed
and delivered to the Owner Trustee, the performance of every covenant and
obligation of the Sponsor hereunder except for the covenants and obligations,
and Sections 2.10, 2.11 or 8.2 of this Agreement; (ii) the person that acquires
a Certificate shall deliver to the Owner Trustee and the Note Insurer an
Officer's Certificate stating that such transfer and such supplemental agreement
comply with this Section 3.10 and that all conditions precedent provided by this
subsection 3.10 have been complied with and an Opinion of Counsel stating that
such transfer and such supplemental agreement comply with this Section 3.10 and
that all conditions precedent provided by this Section 3.10 have been complied
with, and the Owner Trustee may conclusively rely on such Officer's Certificate,
shall have no duty to make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying; (iii) the person that
acquires a Certificate shall deliver to the Owner Trustee and the Note Insurer a
letter from each Rating Agency confirming that its rating of the Trust Notes,
after giving effect to such transfer, will not be reduced or withdrawn without
regard to the related Note Policy; (iv) the person that acquires a Certificate
shall deliver to the Owner Trustee and the Note Insurer an Opinion of Counsel to
the effect that (a) such transfer will not adversely affect the treatment of the
Trust Notes after such transfer as debt for federal and applicable state income
tax purposes, (b) such transfer will not result in Trust A, Trust B or Trust C
being subject to tax at the entity level for federal or applicable state tax
purposes, (c) such
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transfer will not have any material adverse impact on the federal or applicable
state income taxation of a Trust Noteholder and (d) such transfer will not
result in the arrangement created by this Agreement or any "portion" of any of
Trust A, Trust B, Trust C or the Holding Trust, being treated as a taxable
mortgage pool as defined in Section 7701(i) of the Code. Notwithstanding the
foregoing, the requirement set forth in subclause (i)(A) of this Section 3.10
shall not apply in the event the Owner Trustee and the Note Insurer shall have
received a letter from each Rating Agency confirming that its rating of the
Trust Notes, after giving effect to a proposed transfer to a Person that does
not meet the requirement set forth in subclause (i)(A), shall not be reduced or
withdrawn without regard to the related Note Policy. Notwithstanding the
foregoing, the requirements set forth in this paragraph (b) shall not apply to
the initial issuance of the Certificates to the Sponsor.
(d) Except for the initial issuance of the Certificates to
the Sponsor or the transfer to an affiliate of the Sponsor, no transfer of a
Certificate shall be made unless the Owner Trustee shall have received a
representation letter from the transferee of such Certificate, acceptable to and
in form and substance satisfactory to the Owner Trustee, to the effect that such
transferee is not a Benefit Plan and is not acting on behalf of or using the
assets of a Benefit Plan and is not acting on behalf of or using the assets of a
Benefit Plan, which representation letter shall not be an expense of the Owner
Trustee.
(e) No transfer or pledge of the Certificates shall result in
more than 98 other holders of Certificates.
SECTION 3.11 Acceptance of Obligations. The Sponsor agrees to
be bound by and to perform all the duties of the Sponsor set forth in this
Agreement.
SECTION 3.12 Payments on Certificates. The Certificateholders
will be entitled to distributions as beneficial owners of Trust A, Trust B and
Trust C.
ARTICLE IV.
Voting Rights and Other Actions
SECTION 4.1 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 election by Holding Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute or unless such amendment would not materially and
adversely affect the interests of the Holders);
(b) the amendment of the Trust A Indenture, the Trust B
Indenture, or the Trust C Indenture by a supplemental indenture in circumstances
where the consent of any related Noteholder is required;
(c) the amendment of the Trust A Indenture, the Trust B
Indenture, or the Trust C Indenture by a supplemental indenture in circumstances
where the consent of any related Noteholder is not required and such amendment
materially adversely affects the interest of the Certificateholders; or
(d) except pursuant to Section 7.14 of the Trust A Sale and
Servicing Agreement, the Trust B Sale and Servicing Agreement or the Trust C
Sale and Servicing Agreement, the
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amendment, change or modification of the related Sale and Servicing Agreement,
except to cure any ambiguity or defect or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Certificateholders.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Note Registrar, or Certificate Registrar within five
Business Days thereof.
SECTION 4.2 Action by Certificateholders with Respect to
Certain Matters
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. 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 Sponsor. 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 Agreement or applicable law.
SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy. Until one year and one day following the day on which the related
Trust Notes have been paid in full, the Owner Trustee shall not have the power
to, and shall not, commence any proceeding or other actions contemplated by
Section 2.12(b) relating to the Holding Trust without the prior written consent
of the Note Insurer (unless a Note Insurer Default shall have occurred and is
continuing) or upon a Note Insurer Default, the Majority Certificateholders.
Until one year and one day following the day on which the related Trust Notes
have been paid in full, all amounts due to the Note Insurer under the Insurance
Agreement have been paid in full, each Note Policy has terminated and the
Indenture Trustee has surrendered the Note Policies to the Note Insurer, the
Owner Trustee shall not have the power to, and shall not, commence any
proceeding or other actions contemplated by Section 2.12(b) relating to Holding
Trust without the prior written consent of all of the Certificateholders and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Holding
Trust is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. (a)
The Certificateholders shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Holding Trust or the Owner Trustee under this Agreement or any
of the Operative Documents or would be contrary to Section 2.3 or otherwise
contrary to law nor shall the Owner Trustee be obligated to follow any such
direction, if given.
(b) No Certificateholder (other than the Sponsor or its
initial transferee) shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement or any
Operative Document, unless the Certificateholders are the Instructing Party
pursuant to Section 6.3 and unless a Certificateholder previously shall have
given to the Owner Trustee a written notice of default and of the continuance
thereof, as provided in this Agreement, and also unless Certificateholders
evidencing not less than 25% by Percentage Interest shall have made written
request upon the Owner Trustee to institute such action, suit or proceeding in
its own name as Owner Trustee under this Agreement and shall have offered to the
Owner Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Owner
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding, and during such 30-day period no request or waiver inconsistent
with such written request has been given to the Owner Trustee pursuant to and in
compliance with this Section or Section 6.3; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Owner Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other
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of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner provided in this Agreement and for the equal, ratable, and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 4.4, each and every Certificateholder and the Owner
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 4.5 Majority Control. No Certificateholder shall have
any right to vote or in any manner otherwise control the operation and
management of Holding Trust except as expressly provided in this Agreement.
Except as otherwise expressly provided herein, any action that may be taken by
the Certificateholders under this Agreement may be taken by the Holders of
Certificates evidencing not less than a majority interest in Holding Trust.
Except as otherwise expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Certificateholders evidencing not less than a majority interest in
Holding Trust at the time of the delivery of such notice.
SECTION 4.6 Rights of Note Insurer. Notwithstanding anything
to the contrary in the Operative Documents, without the prior written consent of
the Note Insurer (or if a Note Insurer Default shall have occurred and is
continuing, the Majority Certificateholders) the Owner Trustee shall not (i)
initiate any claim, suit or proceeding by Holding Trust or compromise any claim,
suit or proceeding brought by or against Holding Trust, other than with respect
to the enforcement of any Mortgage Loan or any rights of Holding Trust
thereunder, (ii) authorize the merger or consolidation of Holding Trust with or
into any other business trust or other entity, (iii) amend the Certificate of
Trust or (iv) amend this Agreement in accordance with Section 11.1 of this
Agreement.
ARTICLE V.
Certain Duties
SECTION 5.1 Accounting and Records to the Certificateholders,
the Internal Revenue Service and Others. The Sponsor shall (a) maintain (or
cause to be maintained) the books of Holding Trust on a calendar year basis on
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) file
or cause to be filed, such tax returns relating to Holding Trust (including a
corporate return, Form 1120), and direct the Owner Trustee or the Master
Servicer, as the case may be, to make such elections and file such forms as may
from time to time be required or appropriate under any applicable state or
Federal statute or rule or regulation thereunder given the Trust's
characterization as a corporation, or if applicable, as a partnership, for
Federal income tax purposes. The Owner Trustee or the Master Servicer, as the
case may be, shall make all elections pursuant to this Section as directed in
writing by the Sponsor. The Owner Trustee shall sign all tax information returns
presented to it in final execution form, if any, filed pursuant to this Section
5.1 and any other returns as may be required by law, and in doing so shall rely
entirely upon, and shall have no liability for information provided by, or
calculations provided by, the Sponsor or the Master Servicer.
SECTION 5.2 Reserved.
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ARTICLE VI.
Authority and Duties of Owner Trustee
SECTION 6.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Operative Documents to which
Holding Trust is named as a party and each certificate or other document
attached as an exhibit to or contemplated by the Operative Documents to which
Holding Trust is named as a party and any amendment thereto, in each case, in
such form as the Sponsor shall approve 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 Holding
Trust pursuant to the Operative Documents. The Owner Trustee is further
authorized from time to time to take such action as the Instructing Party
recommends with respect to the Operative Documents so long as such activities
are consistent with the terms of the Operative Documents.
SECTION 6.2 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 Agreement and to administer Holding Trust in the
interest of the Holders, subject to the Operative Documents and in accordance
with the provisions of this Agreement.
SECTION 6.3 Action upon Instruction. (a) Subject to Article
IV, the Note Insurer (so long as a Note Insurer Default shall not have occurred
and be continuing) or the Certificateholders (if a Note Insurer Default shall
have occurred and be continuing) (the "Instructing Party") shall have the
exclusive right to direct the actions of the Owner Trustee in the management of
Holding Trust, so long as such instructions are not inconsistent with the
express terms set forth herein or in any Operative Document. The Instructing
Party shall not instruct the Owner Trustee in a manner inconsistent with this
Agreement or the Operative Documents.
(b) 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
Agreement or any Operative Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Instructing Party 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 Instructing Party received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Operative Documents, as it shall deem to
be in the best interests of the Certificateholders, and shall have no liability
to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any 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
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Instructing
Party requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have
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received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Operative Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement
or in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any 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 Commission filing for Holding Trust or to
record this 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 Owner Trust Estate
that result from actions by, or claims against, the Owner Trustee (solely in its
individual capacity) and that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Operative
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of Holding Trust set forth
in Section 2.3. The Certificateholders shall not direct the Owner Trustee to
take action that would violate the provisions of this Section.
ARTICLE VII.
Concerning the Owner Trustee
SECTION 7.1 Acceptance of Trust and Duties. The Owner Trustee
accepts the trust hereby created and agrees to perform its duties hereunder with
respect to such trust but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it constituting
part of the Owner Trust Estate upon the terms of the Operative Documents and
this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Operative Document under any circumstances, except (i)
for its own willful misconduct, bad faith or gross negligence, (ii) in the case
of the inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Owner Trustee in its individual capacity, (iii) for
liabilities arising from the failure of the Owner Trustee to perform obligations
expressly undertaken by it in the last sentence of Section 6.4 hereof, (iv) for
any investments issued by the Owner Trustee or any branch or affiliate thereof
in its commercial capacity or (v) for taxes, fees or other charges on, based on
or measured by, any fees, commissions or compensation received by the Owner
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
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(a) the Owner Trustee shall not be liable for any error of
judgment, not constituting gross negligence, made by a Responsible Officer of
the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it if such action or omission is in
accordance with the instructions of the Instructing Party, the Sponsor, the
Master Servicer or any Certificateholder pursuant to the terms hereof;
(c) no provision of this Agreement or any Operative Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Operative Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Operative Documents;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Sponsor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or in
respect of the validity or sufficiency of the Operative Documents, other than
the certificate of authentication on the Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty or obligation to the
Sponsor, the Note Insurer, Indenture Trustee, any Certificateholder, other than
as expressly provided for herein and in the Operative Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Sponsor, the Note Insurer, the Indenture Trustee, the Issuer,
or the Master Servicer under any of the Operative Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the obligations
under this Agreement or the Operative Documents that are required to be
performed by the Sponsor under this Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any Operative Document, at the request, order
or direction of the Instructing Party or any of the Certificateholders, unless
such Instructing Party or Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Operative Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence, bad faith
or willful misconduct in the performance of any such act.
SECTION 7.2 Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Operative Documents.
SECTION 7.3 Representations and Warranties. The Owner Trustee
hereby represents and warrants, in its individual capacity, to the Sponsor and
the Holders, that:
(a) It is a Delaware banking corporation, duly organized and
validly existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
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(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
SECTION 7.4 Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer, secretary or other authorized officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full protection
to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Operative Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
(ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and according to such opinion not contrary to this Agreement or any
Operative Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Operative Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6 Owner Trustee Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates (other
than the signature and countersignature of the Owner Trustee on the
Certificates) shall be taken as the statements of the Sponsor and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement, of
any Operative Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) or related documents.
The Owner Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Trust
Certificate, or the perfection and priority of any security interest created by
any Trust Certificate or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Trust Certificate; the existence and enforceability of any insurance
thereon; the existence and contents of any Trust Certificate on any computer or
other record thereof; the validity of the assignment of any Trust Certificate to
Holding Trust or of any intervening assignment; the completeness of any Mortgage
Loan; the performance or enforcement of any Mortgage
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Loan; the compliance by the Sponsor, the Master Servicer or any other Person
with any warranty or representation made under any Operative Document or in any
related document or the accuracy of any such warranty or representation or any
action of the Indenture Trustee or the Master Servicer or any Sub-Servicer taken
in the name of the Owner Trustee.
SECTION 7.7 Owner Trustee May Own Certificates. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates and may deal with the Sponsor, the Indenture Trustee and the
Master Servicer in banking transactions with the same rights as it would have if
it were not Owner Trustee.
SECTION 7.8 Payments from Owner Trust Estate. All payments to
be made by the Owner Trustee under this Agreement or any of the Operative
Documents to which Holding Trust or the Owner Trustee is a party shall be made
only from the income and proceeds of the Owner Trust Estate and only to the
extent that Holding Trust shall have received income or proceeds from the Owner
Trust Estate to make such payments in accordance with the terms hereof.
Wilmington Trust Company, or any successor thereto, in its individual capacity,
shall not be liable for any amounts payable under this Agreement or any of the
Operative Documents to which Holding Trust or the Owner Trustee is a party.
SECTION 7.9 Doing Business in Other Jurisdictions.
Notwithstanding anything contained to the contrary, neither Wilmington Trust
Company or any successor thereto, nor the Owner Trustee shall be required to
take any action in any jurisdiction other than in the State of Delaware if the
taking of such action will, even after the appointment of a co-trustee or
separate trustee in accordance with Section 10.5 hereof, (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the State
of Delaware ; (ii) result in any fee, tax or other governmental charge under the
laws of the State of Delaware becoming payable by Wilmington Trust Company (or
any successor thereto); or (iii) subject Wilmington Trust Company (or any
successor thereto) to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by Wilmington Trust Company (or any successor
thereto) or the Owner Trustee, as the case may be, contemplated hereby.
ARTICLE VIII.
Compensation of Owner Trustee
SECTION 8.1 Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Sponsor and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Sponsor for its other reasonable expenses hereunder, including 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 its duties
hereunder and under the Operative Documents.
SECTION 8.2 Indemnification. The Sponsor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee (in its individual
and trust capacities) and its officers, directors, successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may (in its trust or individual capacities) at
any time be imposed on, incurred by, or asserted against the Owner Trustee or
any Indemnified Party in
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any way relating to or arising out of this Agreement, the Operative Documents,
the Owner Trust Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee hereunder, except only that the Sponsor
shall not be liable for or required to indemnify the Owner Trustee from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.1. The indemnities contained in this Section and the
rights under Section 8.1 shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Sponsor which approval shall not be unreasonably withheld.
SECTION 8.3 Payments to the Owner Trustee. Any amounts paid
to the Owner Trustee pursuant to this Article VIII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
SECTION 8.4 Non-recourse Obligations. Notwithstanding
anything in this Agreement or any Operative Document, the Owner Trustee agrees
in its individual capacity and in its capacity as Owner Trustee for Holding
Trust that all obligations of Holding Trust to the Owner Trustee individually or
as Owner Trustee for Holding Trust shall be recourse to the Owner Trust Estate
only and specifically shall not be recourse to the assets of any
Certificateholder.
ARTICLE IX.
Termination of Trust Agreement
SECTION 9.1 Termination of Trust Agreement. (a) This
Agreement and Holding Trust shall terminate and be of no further force or effect
upon the payment to Certificateholders of all amounts required to be paid to
them pursuant to this Agreement and the payment to the Note Insurer of all
amounts payable or reimbursable to it pursuant to the Trust A Sale and Servicing
Agreement, the Trust B Sale and Servicing Agreement and the Trust C Sale and
Servicing Agreement and the Insurance Agreement; provided, however, that the
rights to indemnification under Section 8.2 and the rights under Section 8.1
shall survive the termination of the Holding Trust. The Master Servicer shall
promptly notify the Owner Trustee and the Note Insurer of any prospective
termination pursuant to this Section 9.1. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or Holding Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of Holding Trust or Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither the Sponsor nor
any other Certificateholder shall be entitled to revoke or terminate Holding
Trust.
(c) Notice of any termination of Holding Trust, specifying
the Payment Date upon which the Certificateholders shall surrender their
Certificates to the Indenture Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of all notices of
such redemption from the Master Servicer given pursuant to Section 10.1 of the
Trust A Sale and Servicing Agreement, the Trust B Sale and Servicing Agreement
and the Trust C Sale and Servicing Agreement, stating (i) the Payment Date upon
or with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Indenture
Trustee therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Indenture Trustee therein specified. The Owner
Trustee shall give such
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notice to the Certificate Registrar (if other than the Owner Trustee) and the
Indenture Trustee at the time such notice is given to Certificateholders.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in Holding Trust after
exhaustion of such remedies shall be distributed, subject to applicable escheat
laws, by the Owner Trustee to the Sponsor and Certificateholders shall look
solely to the Sponsor for payment.
(d) Any funds remaining in Holding Trust after funds for
final distribution have been distributed or set aside for distribution shall be
distributed by the Owner Trustee to the Sponsor.
(e) Upon the winding up of Holding Trust and its termination,
the Owner Trustee shall cause the Certificate of Trust to be canceled by filing
a certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
(f) The Sponsor shall take all necessary steps to qualify the
termination of the Holding Trust as a liquidation under Section 332 of the Code,
if applicable, including the adoption of a plan of liquidation.
ARTICLE X.
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.1 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation (i) satisfying the provisions
of Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; (iv) having (or having a parent which has) a rating of at least
Baa3 by Moody's or A-1 by Standard & Poors or being otherwise acceptable to the
Rating Agencies; and (v) acceptable to the Note Insurer in its sole discretion.
If such corporation shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Sponsor, the Note Insurer and
the Master Servicer. Upon receiving such notice of resignation, the Sponsor
shall promptly appoint a successor Owner Trustee, meeting the qualifications set
forth in Section 10.1 herein, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Owner Trustee and one copy
to the successor Owner Trustee, provided that the Sponsor shall have received
written confirmation from each of the Rating Agencies that the proposed
appointment will not result in an increased capital charge to the Note Insurer
by either of the Rating Agencies. If no successor Owner Trustee shall have been
so appointed and have accepted appointment
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within 30 days after the giving of such notice of resignation, the resigning
Owner Trustee or the Note Insurer may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Sponsor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then a majority of the Certificateholders with the consent of the
Note Insurer (so long as no Note Insurer Default shall have occurred and is
continuing) may remove the Owner Trustee. If a majority of the
Certificateholders shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Sponsor shall promptly appoint a successor
Owner Trustee, meeting the qualifications set forth in Section 10.1 herein, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed, one copy to the Note Insurer
and one copy to the successor Owner Trustee and the Sponsor shall pay all fees
owed to the outgoing Owner Trustee, if not previously paid by Holding Trust.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.3 and payment of all reasonable
fees and expenses owed to the outgoing Owner Trustee.
Notwithstanding any other provision of this Agreement, and in
addition to any other method of removal of the Owner Trustee contained herein,
upon a proposal made pursuant to Section 4.2(b) and the subsequent consent of
Certificateholders representing no less than a 66-2/3% interest in Holding
Trust, the Owner Trustee may be removed as Owner Trustee, which consent is not
to be unreasonably withheld. In the event the Owner Trustee is removed pursuant
to this paragraph, the provisions of this Agreement, including Article X herein,
shall apply as if the Owner Trustee had resigned hereunder.
SECTION 10.3 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Sponsor, the Master Servicer, the Note Insurer and to its
predecessor Owner Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Sponsor and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Master Servicer shall mail notice of the successor
of such Owner Trustee to all Certificateholders. If the Master Servicer shall
fail to mail such notice within 10 days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of the Master Servicer.
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The successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State reflecting the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
SECTION 10.4 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.5 Appointment of Co-Owner Trustee or Separate
Owner Trustee. Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Owner Trust Estate may at the time be located, the Master
Servicer and the Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Owner Trustee and the Note Insurer to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such title
to Holding Trust, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Owner Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, the Owner Trustee subject to the
approval of the Note Insurer (which approval shall not be unreasonably withheld)
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to Holding Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Master Servicer and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts
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conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a copy thereof
given to the Master Servicer and the Note Insurer.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI.
Miscellaneous
SECTION 11.1 Supplements and Amendments. (a) This Agreement
may be amended by the Sponsor and the Owner Trustee, with the prior written
consent of the Note Insurer (so long as no Note Insurer Default shall have
occurred and is continuing), without the consent of any of the
Certificateholders (i) to cure any ambiguity or defect or (ii) to correct,
supplement or modify any provisions in this Agreement; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel which may be based
upon a certificate of the Master Servicer, adversely affect in any material
respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time,
with the prior written consent of the Note Insurer which consent shall not be
unreasonably withheld (so long as no Note Insurer Default shall have occurred
and is continuing) by the Sponsor and the Owner Trustee, with prior written
notice to the Rating Agencies, and, the consent of the Certificateholders
evidencing not less than a majority interest in Holding Trust (which consent of
any Holder of a Certificate given pursuant to this Section or pursuant to any
other provision of this Agreement shall be conclusive and binding on such Holder
and on all future Holders of such Certificate and of any Certificate issued upon
the transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Certificate) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that, subject to the express rights of
the Note Insurer under the Operative Documents, no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, distributions that shall be required to be made for the benefit of
the Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Certificates, the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all the outstanding
Certificates.
Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Indenture Trustee.
It shall not be necessary for the consent of
Certificateholders, pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement or in
any other Operative Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe. Promptly after the execution of
any
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amendment to the Certificate of Trust, the Owner Trustee shall cause the filing
of such amendment with the Secretary of State.
Prior to the execution of any amendment to this Agreement or
the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their ownership interest therein only in
accordance with Article IX. No transfer, by operation of law or otherwise, of
any right, title or interest of the Certificateholders to and in their ownership
interest in the Owner Trust Estate shall operate to terminate this Agreement or
the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Owner Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for
Section 11.7, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Sponsor, the Certificateholders, the Master Servicer and, to
the extent expressly provided herein, the Note Insurer, the Indenture Trustee
and the Trust Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.4 Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing and
shall be deemed given upon receipt personally delivered, delivered by overnight
courier or mailed first class mail or certified mail, in each case return
receipt requested, and shall be deemed to have been duly given upon receipt, if
to the Owner Trustee, addressed to the Corporate Trust Office; if to the
Sponsor, addressed to Advanta Mortgage Conduit Services, Inc., 00000 Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000; if to the Note Insurer, addressed to, Ambac
Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx and Xxx Xxxxx, Telecopy No.: (000) 000-0000; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.5 Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdictional shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.7 Assignments; Note Insurer. (a) This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
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This Agreement shall also inure to the benefit of the Note Insurer for so long
as a Note Insurer Default shall not have occurred and be continuing. Without
limiting the generality of the foregoing, all covenants and agreements in this
Agreement which confer rights upon the Note Insurer shall be for the benefit of
and run directly to the Note Insurer, and the Note Insurer shall be entitled to
rely on and enforce such covenants, subject, however, to the limitations on such
rights provided in this Agreement and the Operative Documents. The Note Insurer
may disclaim any of its rights and powers under this Agreement upon delivery of
a written notice to the Owner Trustee.
SECTION 11.8 No Petition. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee), by entering into this
Agreement, each Certificateholder, by accepting a Certificate, hereby covenants
and agrees that they will not at any time institute against the Sponsor, or join
in any institution against the Sponsor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, this Agreement or any of the
Operative Documents.
SECTION 11.9 No Recourse. Each Certificateholder by accepting
a Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in Holding Trust only and do not represent interests in or
obligations of the Master Servicer, the Sponsor, the Owner Trustee, the
Indenture Trustee, the Note Insurer or any Affiliate thereof and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the Operative
Documents.
SECTION 11.10 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.12 Master Servicer. The Master Servicer is
authorized to prepare, or cause to be prepared, execute and deliver on behalf of
Holding Trust all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of Holding Trust or Owner Trustee to
prepare, file or deliver pursuant to the Operative Documents. Upon written
request, the Owner Trustee shall execute and deliver to the Master Servicer a
limited power of attorney appointing the Master Servicer the Holding Trust's
agent and attorney-in-fact to prepare, or cause to be prepared, execute and
deliver all such documents, reports, filings, instruments, certificates and
opinions.
26
31
IN WITNESS WHEREOF, the parties hereto have caused this 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, as Owner Trustee
By /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ADVANTA MORTGAGE CONDUIT SERVICES,
INC., as Sponsor
By /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
27
32
Exhibit A
CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE
EXTENT DESCRIBED HEREIN AND IN THE HOLDING TRUST TRUST AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.10 OF THE HOLDING
TRUST TRUST AGREEMENT REFERRED TO HEREIN.
EXCEPT WITH RESPECT TO THE INITIAL ISSUANCE HEREOF OR A TRANSFER TO AN
AFFILIATE OF THE SPONSOR, NO TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE OWNER TRUSTEE SHALL HAVE RECEIVED A REPRESENTATION LETTER
FROM THE TRANSFEREE OF SUCH CERTIFICATE, ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE, TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT A BENEFIT PLAN AND NOT ACTING ON BEHALF OF OR USING
THE ASSETS OF A BENEFIT PLAN, WHICH REPRESENTATION LETTER SHALL NOT BE
AN EXPENSE OF THE OWNER TRUSTEE.
NO TRANSFER OF A CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE
IN ACCORDANCE WITH SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE
OF THE CERTIFICATES TO THE SPONSOR, THE OWNER TRUSTEE SHALL REQUIRE (i)
THE TRANSFEREE TO EXECUTE AN INVESTMENT LETTER ACCEPTABLE TO AND IN
FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND THE NOTE
INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE NOTE INSURER THE FACTS
SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE OR THE NOTE INSURER OR (ii) IF THE
INVESTMENT LETTER IS NOT DELIVERED, A WRITTEN OPINION OF COUNSEL
ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE, THE NOTE INSURER AND THE SPONSOR THAT SUCH TRANSFER MAY BE
MADE PURSUANT TO AN EXEMPTION, DESCRIBING THE APPLICABLE EXEMPTION AND
THE BASIS THEREFOR, FROM SAID ACT OR IS BEING MADE PURSUANT TO SAID
ACT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE OWNER
TRUSTEE, THE NOTE INSURER OR THE SPONSOR. THE HOLDER OF A CERTIFICATE
DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES HEREBY AGREE TO,
INDEMNIFY THE SPONSOR AND THE NOTE INSURER AGAINST ANY LIABILITY
33
THAT MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN
ACCORDANCE WITH SUCH FEDERAL AND STATE LAWS.
THE CERTIFICATES AND ANY INTEREST THEREIN SHALL NOT BE TRANSFERRED
EXCEPT UPON SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT: (I) THE
PERSON THAT ACQUIRES A CERTIFICATE SHALL (A) BE ORGANIZED AND EXISTING
UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE OR THE
DISTRICT OF COLUMBIA THEREOF, (B) EXPRESSLY ASSUME, BY AN AGREEMENT
SUPPLEMENTAL HERETO, EXECUTED AND DELIVERED TO THE OWNER TRUSTEE, THE
PERFORMANCE OF EVERY COVENANT AND OBLIGATION OF THE SPONSOR UNDER THE
HOLDING TRUST TRUST AGREEMENT, EXCEPT FOR THE COVENANTS AND OBLIGATIONS
CONTAINED IN SECTIONS 2.10, 2.11 OR 8.2 OF THE HOLDING TRUST TRUST
AGREEMENT; (II) THE PERSON THAT ACQUIRES A CERTIFICATE SHALL DELIVER TO
THE OWNER TRUSTEE AND THE NOTE INSURER AN OFFICER'S CERTIFICATE STATING
THAT SUCH TRANSFER AND SUCH SUPPLEMENTAL AGREEMENT COMPLY WITH SECTION
3.10 OF THE HOLDING TRUST TRUST AGREEMENT AND THAT ALL CONDITIONS
PRECEDENT PROVIDED BY SECTION 3.10 OF THE HOLDING TRUST TRUST AGREEMENT
HAVE BEEN COMPLIED WITH AND AN OPINION OF COUNSEL STATING THAT SUCH
TRANSFER AND SUCH SUPPLEMENTAL AGREEMENT COMPLY WITH SECTION 3.10 AND
THAT ALL CONDITIONS PRECEDENT PROVIDED BY SECTION 3.10 HAVE BEEN
COMPLIED WITH, AND THE OWNER TRUSTEE MAY CONCLUSIVELY RELY ON SUCH
OFFICER'S CERTIFICATE, SHALL HAVE NO DUTY TO MAKE INQUIRIES WITH REGARD
TO THE MATTERS SET FORTH THEREIN AND SHALL INCUR NO LIABILITY IN SO
RELYING; (III) THE PERSON THAT ACQUIRES A CERTIFICATE SHALL DELIVER TO
THE OWNER TRUSTEE AND THE NOTE INSURER A LETTER FROM EACH RATING AGENCY
CONFIRMING THAT ITS RATING OF THE TRUST NOTES, AFTER GIVING EFFECT TO
SUCH TRANSFER, WILL NOT BE REDUCED OR WITHDRAWN WITHOUT REGARD TO THE
RELATED NOTE POLICY; (IV) THE PERSON THAT ACQUIRES A CERTIFICATE SHALL
DELIVER TO THE OWNER TRUSTEE AND THE NOTE INSURER AN OPINION OF COUNSEL
TO THE EFFECT THAT (A) SUCH TRANSFER WILL NOT ADVERSELY AFFECT THE
TREATMENT OF THE TRUST NOTES AFTER SUCH TRANSFER AS DEBT FOR FEDERAL
AND APPLICABLE STATE INCOME TAX PURPOSES, (B) SUCH TRANSFER WILL NOT
RESULT IN HOLDING TRUST BEING SUBJECT TO TAX AT THE ENTITY LEVEL FOR
FEDERAL OR APPLICABLE STATE TAX PURPOSES, (C) SUCH TRANSFER WILL NOT
HAVE ANY MATERIAL ADVERSE IMPACT ON THE FEDERAL OR APPLICABLE STATE
INCOME TAXATION OF A TRUST NOTEHOLDER AND (D) SUCH TRANSFER WILL NOT
RESULT IN THE ARRANGEMENT CREATED BY THE HOLDING TRUST TRUST AGREEMENT
OR ANY "PORTION" OF HOLDING TRUST, BEING TREATED AS A TAXABLE MORTGAGE
POOL AS DEFINED IN SECTION 7701(I) OF THE CODE; (V) ALL FILINGS AND
OTHER ACTIONS NECESSARY TO CONTINUE THE PERFECTION OF THE INTEREST OF
HOLDING TRUST IN THE MORTGAGE LOANS AND THE OTHER PROPERTY CONVEYED
UNDER THE HOLDING TRUST TRUST AGREEMENT SHALL HAVE BEEN TAKEN OR MADE.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
34
ADVANTA MORTGAGE HOLDING TRUST 1998-4
CERTIFICATE
Percentage Interest: [100%]
Date of Cut-Off Date:
November 1, 1998
First Payment Date: Issue Date: November 24, 1998
December 28, 1998
No. 1
---------------------------------
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY
not in its individual
capacity but solely as
Owner Trustee
by:
------------------------------------
Authenticating Agent
Holding Trust was created pursuant to a Holding Trust Trust
Agreement dated as of November 1, 1998 (the "Trust Agreement"), between the
Sponsor and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as Advanta Mortgage Holding Trust 1998-4 Certificates (herein called
the "Certificates"). These Certificates are issued under and are subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of Holding Trust
includes the Trust A, the Trust B and the Trust C Certificates.
Under the Trust Agreement, 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 (the "Payment Date"), commencing on December 28, 1998, to the
Person in whose name this Certificate is registered at the close of business on
the Business Day preceding such Payment Date (the "Record Date") such
Certificateholder's Percentage Interest in the amount to be distributed to
Certificateholders on such Payment Date.
35
It is the intent of the Sponsor, the Master Servicer, and the
Certificateholders that, for purposes of Federal income taxes, Holding Trust
will be treated as a corporation. The Sponsor and any other Certificateholders,
by acceptance of a Certificate, agree to treat, and to take no action
inconsistent with the treatment of the Certificates for such tax purposes as
equity interests in a corporation.
Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained for the purpose by the Owner Trustee in the Corporate Trust
Office.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
36
IN WITNESS WHEREOF, the Owner Trustee, on behalf of Holding
Trust and not in its individual capacity, has caused this Certificate to be duly
executed.
ADVANTA MORTGAGE HOLDING TRUST 1998-4
By: WILMINGTON TRUST COMPANY not in its individual
capacity but solely as Owner Trustee
Dated: November 24, 1998
By: ____________________________________
Name:
Title:
37
(Reverse of Certificate)
The Certificates do not represent an obligation of, or an
interest in, the Originators, the Sponsor, the Master Servicer, the Note
Insurer, the Owner Trustee or any Affiliates of any of them and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement or the Operative
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
distributions received by each of the Trust Certificates.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Sponsor and the rights of the Certificateholders under the
Trust Agreement at any time by the Sponsor and the Owner Trustee with the prior
written consent of the Note Insurer and with the consent of the holders of the
Certificates evidencing not less than a majority of the outstanding
Certificates. Any such consent by the holder of this Certificate shall be
conclusive and binding on such holder and on all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the holders of
any of the Certificates (other than the Sponsor or the Note Insurer).
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the Corporate Trust Office, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations evidencing the same aggregate interest in Holding
Trust will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Trust Agreement is Wilmington Trust Company.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 or integral multiples of $1,000 in
excess thereof. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates in 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 Registrar, the Note Insurer
and any agent of the Owner Trustee, the Certificate Registrar, the Note Insurer
or the Note Insurer may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar, the Note Insurer nor any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and Holding Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Certificate.
The recitals contained herein shall be taken as the statements
of the Sponsor or the Master Servicer, as the case may be, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Certificate or of
any Mortgage Loan or related document.
38
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual or
facsimile signature, this Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement be valid for any purpose.
39
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------- Attorney to transfer said
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
---------------------------------------------------
Signature Guaranteed:
*
---------------------------------------------------
---------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be determined
by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
40
EXHIBIT B
CERTIFICATE OF TRUST OF
ADVANTA MORTGAGE HOLDING TRUST 1998-4
This Certificate of Trust of Advanta Mortgage Holding Trust
1998-4 ("Holding Trust"), dated as of November 20, 1998, is being duly executed
and filed by Wilmington Trust Company, a Delaware banking corporation, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
Code, Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is
Advanta Mortgage Holding Trust 1998-4.
2. Delaware Trust. The name and business address of the Owner
Trustee of Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000. Attn:
Corporate Trust Administration.
3. This Certificate of Trust will be effective November 20,
1998.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
Holding Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY
not in its individual capacity but solely
as Owner Trustee of Holding Trust.
By:_________________________________
Name:
Title:
