================================================================================
SUPERIOR BANK FSB,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
-----------------------------------------
TRUST AGREEMENT
Dated as of September 1, 1999
------------------------------------------
AFC Trust Series 1999-3
AFC Trust Certificates,
Series 1999-3
================================================================================
Table of Contents
Section Page
------- ----
ARTICLE I
Definitions..............................................................................................1
1.01. Definitions................................................................................1
1.02. Other Definitional Provisions..............................................................1
ARTICLE II
Organization............................................................................................ 3
2.01. Name.......................................................................................3
2.02. Office.....................................................................................3
2.03. Purposes and Powers........................................................................3
2.04. Appointment of Owner Trustee...............................................................4
2.05. Initial Capital Contribution of Owner Trust Estate.........................................4
2.06. Declaration of Trust.......................................................................4
2.07. Liability of the Holders of the Certificates...............................................4
2.08. Title to Trust Property....................................................................5
2.09. Situs of Trust.............................................................................5
2.10. Representations and Warranties of the Depositor............................................5
2.11. Reserved...................................................................................6
2.12. Investment Company.........................................................................6
ARTICLE III
Conveyance of the Mortgage Loans; Certificates...........................................................7
3.01. Reserved...................................................................................7
3.02. Initial Ownership..........................................................................7
3.03. The Certificates...........................................................................7
3.04. Authentication of Certificates.............................................................7
3.05. Registration of and Limitations on Transfer and Exchange of Certificates...................7
3.06. Mutilated, Destroyed, Lost or Stolen Certificates.........................................10
3.07. Persons Deemed Certificateholders.........................................................10
3.08. Access to List of Certificateholders' Names and Addresses.................................11
3.09. Maintenance of Office or Agency...........................................................11
3.10. Certificate Paying Agent..................................................................11
ARTICLE IV
Authority and Duties of Owner Trustee...................................................................13
4.01. General Authority.........................................................................13
4.02. General Duties............................................................................13
4.03. Action upon Instruction...................................................................13
4.04. No Duties Except as Specified under Specified Documents or in Instructions................14
4.05. Restrictions..............................................................................14
4.06. Prior Notice to Certificateholders with Respect to Certain Matters........................15
4.07. Action by Certificateholders with Respect to Certain Matters..............................15
4.08. Action by Certificateholders with Respect to Bankruptcy...................................15
4.09. Restrictions on Certificateholders' Power.................................................15
4.10. Majority Control..........................................................................16
ARTICLE V
Application of Trust Funds..............................................................................17
5.01. Distributions.............................................................................17
5.02. Method of Payment.........................................................................17
5.03. Tax Returns...............................................................................18
5.04. Statements to Certificateholders..........................................................18
ARTICLE VI
Concerning the Owner Trustee............................................................................19
6.01. Acceptance of Trusts and Duties...........................................................19
6.02. Furnishing of Documents...................................................................20
6.03. Representations and Warranties............................................................20
6.04. Reliance; Advice of Counsel...............................................................21
6.05. Not Acting in Individual Capacity.........................................................21
6.06. Owner Trustee Not Liable for Certificates or Related Documents............................22
6.07. Owner Trustee May Own Certificates and Notes..............................................22
6.08. Payments from Owner Trust Estate..........................................................22
6.09. Doing Business in Other Jurisdictions.....................................................22
6.10. Liability of Certificate Registrar and Certificate Paying Agent...........................23
ARTICLE VII
Compensation of Owner Trustee...........................................................................24
7.01. Owner Trustee's Fees and Expenses.........................................................24
7.02. Indemnification...........................................................................24
ARTICLE VIII
Termination of Trust Agreement..........................................................................26
8.01. Termination of Trust Agreement............................................................26
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees..................................................28
9.01. Eligibility Requirements for Owner Trustee................................................28
9.02. Replacement of Owner Trustee..............................................................28
9.03. Successor Owner Trustee...................................................................28
9.04. Merger or Consolidation of Owner Trustee..................................................29
9.05. Appointment of Co-Trustee or Separate Trustee.............................................29
ARTICLE X
Miscellaneous...........................................................................................31
10.01. Amendments................................................................................31
10.02. No Legal Title to Owner Trust Estate......................................................32
10.03. Limitations on Rights of Others...........................................................32
10.04. Notices...................................................................................33
10.05. Severability..............................................................................33
10.06. Separate Counterparts.....................................................................33
10.07. Successors and Assigns....................................................................33
10.08. No Petition...............................................................................33
10.09. No Recourse...............................................................................34
10.10. Headings..................................................................................34
10.11. GOVERNING LAW.............................................................................34
10.12. Integration...............................................................................34
Signatures ......................................................................................................40
EXHIBIT
Exhibit A - Form of Certificate.................................................................................A-1
Exhibit B - Certificate of Trust of AFC Trust Series _____-__...................................................B-1
Exhibit C - Form of Rule 144A Investment Representation.........................................................C-1
Exhibit D - Form of Certificate of Non-Foreign Status...........................................................D-1
Exhibit E - Form of Investment Letter...........................................................................E-1
Exhibit F - Form of Transfer Certificate........................................................................F-1
Exhibit G - Form of Plan Certification..........................................................................G-1
This Trust Agreement, dated as of September 1, 1999 (as amended from time
to time, this "Trust Agreement"), between SUPERIOR BANK FSB, as depositor (the
"Depositor") and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
owner trustee (the "Owner Trustee"),
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the Depositor
and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement, except
as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Sale and Servicing Agreement, dated as of September 1,
1999, among AFC Trust Series 1999-3, as Issuer, and Superior Bank FSB, as Seller
and Servicer, and LaSalle Bank National Association, as Indenture Trustee, which
is incorporated by referenced herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Trust Agreement or in any such certificate or
other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Trust Agreement shall refer to this Trust Agreement as a whole
and not to any particular provision of this Trust Agreement; Article, Section
and Exhibit references contained in this Trust Agreement are references to
Articles, Sections and Exhibits in or to this Trust Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
2
(d) The definitions contained in this Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
3
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby (the "Trust") shall be known
as "AFC Trust Series 1999-3", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders and
the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is and the
Trust shall have the power and authority to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Trust Agreement and to sell the Notes and the
Certificates;
(ii) to pay the organizational, start-up and transactional expenses of
the Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage Loans
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to Section 5.01 any portion of the Mortgage
Loans released from the Lien of, and remitted to the Trust pursuant to the
Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) if directed by holders of Certificates representing more than 50%
of the beneficial interests in the Trust, sell the Trust Estate subsequent
to the discharge of the Indenture, all for the benefit of the holders of
the Certificates;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Certificateholder and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Trust Agreement or the
Basic Documents.
4
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust of the Mortgage Loans
and the rights with respect to the representations and warranties made by the
Seller under the Sale and Servicing Agreement which shall constitute the Owner
Trust Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a "business trust" under the
Business Trust Statute and that this Trust Agreement constitute the governing
instrument of such business trust. It is the intention of the parties hereto
that, for federal and state income and state and local franchise tax purposes,
the Trust shall not be treated as (i) an association subject separately to
taxation as a corporation, (ii) a "publicly traded partnership" as defined in
Treasury Regulation Section 1.7704-1 or (iii) a "taxable mortgage pool" as
defined in Section 7701(i) of the Code, and that the Notes shall be debt, and
the provisions of this Agreement shall be interpreted to further this intention.
Except as otherwise provided in this Trust Agreement, the rights of the
Certificateholders will be those of equity owners of the Trust. Effective as of
the date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Trust. It is the intention of the parties, that, as of the
closing date, the Trust shall be disregarded for federal income tax purposes. In
the event that the Trust Certificates are owned by more than one person, for
federal income tax purposes, then the Trust shall be treated as a partnership.
Section 2.07. Liability of the Holders of the Certificates. (a) The Holders
of the Certificates shall be jointly and severally liable directly to and shall
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust and the Owner Trustee (including expenses, to the extent
not paid out of the Owner Trust Estate) to the extent that Holders of the
Certificates would be liable if the Trust were a corporation under Delaware
corporate law; provided, however, that the Holders of the Certificates shall not
be liable for payments required to be made on the Notes or the Certificates, or
for any losses incurred by a Certificateholder in the capacity of an investor in
the Certificates or a Noteholder in the capacity of an investor in the Notes.
The Holders of the Certificates shall be liable for and shall promptly pay any
entity level taxes imposed on the Trust. In addition, any third party creditors
of the Trust, including the Note Insurer (other than in connection with the
obligation described in the preceding sentence for which the Holders of the
Certificates shall not be liable) shall be deemed third party beneficiaries of
this paragraph. The
5
obligations of the Holders of the Certificates under this paragraph shall be
evidenced by the Certificates.
(b) Subject to subsection (a) above, the Certificateholder shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.
Section 2.08. Title to Trust Property. Except with respect to the Mortgage
Loans, which will be assigned of record to the Indenture Trustee pursuant to the
Indenture, legal title to the Owner Trust Estate shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
Illinois. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware or
taking actions outside the State of Delaware in order to comply with Section
2.03. Payments will be received by the Trust only in Delaware, New York or
Illinois, and payments will be made by the Trust only from Delaware, New York or
Illinois. The only office of the Trust will be at the Corporate Trust Office in
Delaware.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is a federally chartered stock savings bank duly
organized, validly existing and in good standing under the laws of the
United States, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted.
(ii) The Depositor is duly qualified to do business and in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business shall require such qualifications and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets or condition (financial or other) of the Depositor.
(iii) The Depositor has the power and authority to execute and deliver
this Trust Agreement and to carry out its terms; the Depositor has full
power and authority to convey and assign the property to be conveyed and
assigned to and deposited with the Trust as part of the Owner Trust Estate
and the Depositor has duly authorized such conveyance and assignment and
deposit to the Trust by all necessary corporate action; and the execution,
6
delivery and performance of this Trust Agreement have been duly authorized
by the Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties.
Section 2.11. Reserved.
Section 2.12. Investment Company. Neither the Depositor nor any Holder of a
Certificate shall take any action which would cause the Trust to become an
"investment company" which would be required to register under the Investment
Company Act.
7
ARTICLE III
Conveyance of the Mortgage Loans;
Certificates
Section 3.01. Reserved.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05, the Depositor shall
direct the Owner Trustee to execute and deliver the Trust Certificates.
Section 3.03. The Certificates. The Certificates shall be issued in the
form of one or more Certificates each representing not less than a 10%
Certificate Percentage Interest. The Certificates shall initially be registered
in the name of Superior Bank FSB. Each Class of Certificates shall be executed
on behalf of the Trust by manual or facsimile signature of an authorized officer
of the Owner Trustee and authenticated in the manner provided in Section 3.04.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefit of this
Trust Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate duly
registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to and upon satisfaction of the conditions set
forth in Section 3.05.
Section 3.04. Authentication of Certificates. The Owner Trustee shall cause
all Certificates issued hereunder to be executed and authenticated on behalf of
the Trust, delivered to or upon the written order of the Depositor, signed by
its chairman of the board, its president or any vice president, without further
corporate action by the Depositor, in authorized denominations. No Certificate
shall entitle its holder to any benefit under this Trust Agreement or be valid
for any purpose unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Certificate Registrar by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration
8
of Certificates and of transfers and exchanges of Certificates as herein
provided. LaSalle Bank National Association shall be the initial Certificate
Registrar. If the Certificate Registrar resigns or is removed, the Trust shall
appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with respect to
the Certificates, upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.09, the Owner Trustee
or the Certificate Registrar shall execute, authenticate and deliver (or shall
cause LaSalle Bank National Association as its authenticating agent to
authenticate and deliver) in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or the
Certificate Registrar. At the option of a Holder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate amount
upon surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS form W-9
and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letters shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (a) is
a "qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (b) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from said
Act and laws
9
or is being made pursuant to said Act and laws, which Opinion of Counsel shall
not be an expense of the Trust, the Owner Trustee, the Certificate Registrar,
the Servicer or the Depositor and (b) the transferee executes a representation
letter, substantially in the form of Exhibit D hereto, and the transferor
executes a representation letter, substantially in the form of Exhibit E hereto,
each acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached hereto as
Exhibit D) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the Servicer
or the Depositor. The Holder of a Certificate desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Servicer and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of Certificates or any interest therein shall be made to any
employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject to
ERISA, or Section 4975 of the Code (collectively, "Plan"), any Person acting,
directly or indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the Department
of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101 ("Plan Assets")
unless the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar and
the Servicer that the purchase of such Certificates is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Owner
Trustee, the Certificate Registrar or the Servicer. In lieu of such Opinion of
Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any
such Plan or any Person acquiring such Certificates with Plan Assets of a Plan
may provide a certification in the form of Exhibit G to this Agreement, which
the Depositor, the Owner Trustee, the Certificate Registrar and the Servicer may
conclusively rely upon without further inquiry or investigation. Neither an
Opinion of Counsel nor a certification will be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Certificate Registrar and the Owner
Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Owner Trustee or the Certificate Registrar, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor.
10
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
an Opinion of Counsel, rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, to the
effect that such transfer (including any disposition permitted following any
default under any pledge or repurchase transaction) will not cause the Trust to
be (i) treated as an association taxable as a corporation for federal income tax
purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i)
of the Code or (iii) taxable as a "publicly traded partnership" as defined in
Treasury Regulation section 1.7704-1. Notwithstanding the foregoing, the
provisions of this paragraph shall not apply to the initial transfer of the
Certificates to the Depositor.
Prior to the effectiveness of any transfer of a Trust Certificate by the
Depositor to an affiliate of the Depositor, an opinion from a nationally
recognized law firm shall be delivered to the Indenture Trustee, to the effect
that the assets and liabilities of the proposed transferee should not, upon the
bankruptcy of such proposed transferee, be consolidated with those of the Trust
(a "Non-Consolidation Opinion").
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be reasonably required by them to save each of them harmless, then in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee or the
Certificate Registrar shall execute on behalf of the Trust and the Owner Trustee
or the Certificate Registrar (or shall cause LaSalle Bank National Association
as its authenticating agent to authenticate and deliver), shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this Section 3.06, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any expenses of the Owner Trustee or the Certificate
Registrar (including fees and expenses of counsel) and any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 3.06 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Certificate Paying Agent may treat the Person in
whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound by
any notice to the contrary.
11
Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the Certificate
Registrar of a written request therefor from the Depositor or the Owner Trustee,
a list, in such form as the Depositor or the Owner Trustee, as the case may be,
may reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 3.09. Maintenance of Office or Agency. The Certificate Registrar on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange.
The Owner Trustee on behalf of the Trust shall maintain in Wilmington, Delaware,
an office where notices and demands to or upon the Owner Trustee in respect of
the Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office as its office for such purposes.
The Certificate Registrar initially designates its Corporate Trust Office as its
office for such purposes and shall give prompt written notice to the Depositor
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 3.10. Certificate Paying Agent. (a) The Certificate Paying Agent
shall make distributions to Certificateholders from the Certificate Distribution
Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Certificate
Paying Agent by the Indenture Trustee pursuant to Section 3.05 of the Indenture.
The Trust hereby appoints LaSalle Bank National Association as Certificate
Paying Agent and LaSalle Bank National Association hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Trust Agreement relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of
which it has actual knowledge in the making of any payment required to be
made with respect to the Certificates;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in Trust by such Certificate Paying
Agent;
(iv) not resign from its position as Certificate Paying Agent except
that it shall immediately resign as Certificate Paying Agent and forthwith
pay to the Owner Trustee on behalf of the Trust all sums held by it in
trust for the payment of Certificates if at any time
12
it ceases to meet the standards under this Section 3.10 required to be met
by the Certificate Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuer in
connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if it determines in its sole discretion that the Certificate Paying Agent shall
have failed to perform its obligations under this Trust Agreement in any
material respect. In the event that LaSalle Bank National Association shall no
longer be the Certificate Paying Agent under this Trust Agreement and Paying
Agent under the Indenture, the Trust shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company) and which
shall also be the successor Paying Agent under the Indenture. The Owner Trustee
shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Trust to execute and deliver to the
Owner Trustee an instrument accepting appointment and agreeing to be bound by
the terms of this Trust Agreement as it relates to the Certificate Paying Agent.
The Certificate Paying Agent shall return all unclaimed funds to the Trust and
upon removal of a Certificate Paying Agent such Certificate Paying Agent shall
also return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.03, 6.04 and 7.01 shall apply to the Certificate Paying Agent to the
extent applicable. Any reference in this Agreement to the Certificate Paying
Agent shall include any co-paying agent unless the context requires otherwise.
(c) The Certificate Paying Agent, for the benefit of the
Certificateholders, shall establish and maintain with itself a trust account
(the "Certificate Distribution Account") in which the Indenture Trustee,
pursuant to the terms of the Indenture, shall deposit payments, if any, made
pursuant to the Indenture on each Payment Date. The establishment of the
Certificate Distribution Account shall be evidenced by a letter agreement. The
Certificate Paying Agent shall make all distributions to Certificateholders,
from moneys on deposit in the Certificate Distribution Account, in accordance
with Section 5.01 hereof.
13
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, except
as otherwise provided in this Trust Agreement, to take all actions required of
the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Trust Agreement and the Basic Documents to which the Trust is
a party and to administer the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Trust Agreement. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent that the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Trust or the Owner Trustee hereunder or under any Basic Document, and the Owner
Trustee shall not be liable for the default or failure of such person to carry
out such obligations.
Section 4.03. Action upon Instruction. (a) Subject to Article IV and in
accordance with the terms of the Basic Documents, the Certificateholders
evidencing not less than a majority of the Percentage Interests in the
Certificates may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Basic Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement or
under any Basic Document, or in the event that the Owner Trustee is unsure as to
the application of any provision of this Trust Agreement or any Basic Document
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Trust Agreement permits any determination by the Owner Trustee or is silent or
is incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders (with a copy to the Note Insurer) requesting instruction
as to the course of action to be adopted, and to the extent the Owner Trustee
acts in good faith in accordance with any written
14
instruction of the Certificateholders evidencing not less than a majority of the
Percentage Interests in the Certificates, the Owner Trustee shall not be liable
on account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement or
the Basic Documents, as it shall deem to be in the best interests of the
Certificateholders and the Owner Trustee shall have no liability to any Person
for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
Section 4.05. Restrictions. (a) The Owner Trustee or the Depositor (or an
Affiliate thereof) shall not take any action (x) that is inconsistent with the
purposes of the Trust set forth in Section 2.03 or (y) that, to the actual
knowledge of the Owner Trustee based on an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, would result in the Trust becoming taxable as a
corporation for federal income tax purposes or (z) would result in the amendment
or modification of the Basic Documents or this Trust Agreement without the prior
written consent of the Note Insurer, if required. The Certificateholders shall
not direct the Owner Trustee to take action that would violate the provisions of
this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (a) it shall have received an Opinion of Counsel to the effect
that such transaction will not have any material adverse tax consequence to the
Trust or any Certificateholder and (b) such conveyance or transfer shall not
violate the provisions of Section 3.16(b) of the Indenture.
15
Section 4.06. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of cash distributions due and
owing under the Mortgage Loans) and the compromise of any action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of cash distributions due and
owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the consent
to the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the direction of the
Certificateholders, to remove the Servicer under the Servicing Agreement in
accordance with Section 10.01 thereof. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Certificateholders.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Note Insurer, the Noteholders and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent. This paragraph shall survive for one year following termination of
this Trust Agreement.
Section 4.09. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would
16
be contrary to any obligation of the Trust or the Owner Trustee under this Trust
Agreement or any of the Basic Documents or would be contrary to Section 2.03,
nor shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Holders of Certificates evidencing not less than a majority
of the Percentage Interests in the Certificates. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Trust Agreement shall be effective if signed by Holders of Certificates
evidencing not less than a majority of the Percentage Interests in the
Certificates at the time of the delivery of such notice.
17
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions. (a)(i) On each Payment Date, the Certificate
Paying Agent shall distribute to the Certificateholders all funds on deposit in
the Certificate Distribution Account and available for distribution on such
Payment Date in the following order of priority, in each case to the extent of
amounts available in the Certificate Distribution Account:
(A) first, to the Owner Trustee, in respect of any amount owing to the
Owner Trustee hereunder and in respect of any expenses of the Trust
remaining unpaid pursuant to Section 7.01 of this Agreement; and
(B) second, to the Certificateholders, on a pro rata basis based on
each Certificateholder=s Percentage Interest, the remainder of amounts
available.
(ii) In the event that the Certificate Paying Agent receives amounts in
connection with Section 5.04 of the Indenture, such amounts shall be distributed
in the order of priority set forth in (a)(i) above.
(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with this
Section 5.01. The Certificate Paying Agent is hereby authorized and directed to
retain or cause to be retained from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Certificate Paying Agent and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders and the Note Insurer.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to Certificateholders on any Payment Date as provided in
Section 5.01 shall be made to each Certificateholder of record on the preceding
Record Date either by, in the case of any Certificateholder owning 100% of the
Certificates, wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at
18
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section 5.03. Tax Returns. The Owner Trustee shall cooperate with the
Servicer in the Servicer=s obligation to (a) maintain (or cause to be
maintained) the books of the Trust on the fiscal year basis of the person that
is the Holder of 100% of the Certificates or, if the Certificates are owned by
more than one person, then in accordance with the rules governing partnerships,
(b) deliver (or cause to be delivered) to each Certificateholder as may be
required by the Code and applicable Treasury Regulations, such information as
may be required to enable each Certificateholder to prepare its federal and
state income tax returns, (c) prepare and file or cause to be prepared and filed
such tax returns relating to the Trust as may be required by the Code and
applicable Treasury Regulations (making such elections as may from time to time
be required or appropriate under any applicable state or federal statutes, rules
or regulations) and (d) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.01 of this Trust Agreement with
respect to income or distributions to Certificateholders and prepare or cause to
be prepared the appropriate forms relating thereto. The Owner Trustee shall sign
all tax and information returns prepared or caused to be prepared by the
Servicer and delivered to the Owner Trustee in final execution form pursuant to
this Section 5.03 at the request of the Servicer, and in doing so shall rely
entirely upon, and shall have no liability for information or calculations
provided by, the Servicer.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall send to each Certificateholder the statement or
statements provided to the Owner Trustee and the Certificate Paying Agent by the
Indenture Trustee pursuant to Section 7.05 of the Indenture with respect to such
Payment Date.
19
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all moneys
actually received by it constituting part of the Owner Trust Estate upon the
terms of the Basic Documents and this Trust Agreement. The Owner Trustee shall
not be liable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, negligence or bad faith or negligent
failure to act or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.03 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) The Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any Basic Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(c) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(d) The Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificates, other than
the certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the Basic Documents;
(e) The execution, delivery, authentication and performance by it of this
Trust Agreement will not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action with respect to, any governmental authority or agency;
(f) The Owner Trustee shall not be liable for the default or misconduct of
the Depositor, Indenture Trustee, Certificate Registrar or the Servicer under
any of the Basic Documents or
20
otherwise and the Owner Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Trust Agreement or the Basic Documents
that are required to be performed by the Indenture Trustee under the Indenture
or the Seller under the Sale and Servicing Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the 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 Trust Agreement or in any
Basic Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its negligence or willful misconduct in the
performance of any such act.
(h) The Owner Trustee shall not be liable for any errors in judgment made
in good faith by a Responsible Officer of the Owner Trustee.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Trust Agreement, and this Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Owner Trustee, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy,
21
insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally and to general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree
of any court or any order, regulation or demand of any Federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Owner Trustee or its properties or might have consequences that would
materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, note, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee in good faith,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected in good faith and employed by it. The Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the written opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Trust Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created 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 Trust Agreement or any Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
22
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than the
signatures of the Owner Trustee on the Certificates) shall be taken as the
statements of the Depositor, 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 Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall
at no time have any responsibility or liability with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Trust Agreement or the Noteholders
under the Indenture, including compliance by the Depositor or the Seller with
any warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any action
of the Certificate Paying Agent, the Certificate Registrar or the Indenture
Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may, subject to Section 3.05,
become the owner or pledgee of Certificates or Notes and may deal with the
Depositor, the Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would have
if it were not Owner Trustee.
Section 6.08. Payments from Owner Trust Estate. All payments to be made by
the Owner Trustee under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party shall be made only from the income and
proceeds of the Owner Trust Estate or from other amounts required to be provided
by the Certificateholders and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
Wilmington Trust Company, in its individual capacity, shall not be liable for
any amounts payable under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party.
Section 6.09. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company; or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
23
Section 6.10. Liability of Certificate Registrar and Certificate Paying
Agent. All provisions affording protection to or limiting the liability of the
Owner Trustee shall inure as well to the Certificate Registrar and Certificate
Paying Agent.
24
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. Wilmington Trust Company
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof, and Owner Trustee shall be
reimbursed by the Depositor or the Servicer for its reasonable expenses
hereunder and under the Basic Documents, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as Wilmington Trust Company may reasonably employ in connection with the
exercise and performance of its rights and its duties hereunder and the duties
of the Issuer under the Basic Documents pursuant to a separate fee agreement
between Wilmington Trust Company and Superior Bank FSB. In the event of a
default in any payment of such fees and expenses by the Depositor or Servicer,
the Owner Trustee hereby agrees that it will continue to act as Owner Trustee
hereunder and perform its duties hereunder and the duties of the Issuer under
the Basic Documents. This Section 7.01 shall survive termination of this Trust
Agreement.
Section 7.02. Indemnification. The Depositor shall indemnify, defend and
hold harmless the Owner Trustee and the Certificate Paying Agent, solely in its
capacity as Certificate Paying Agent, and their respective successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against any Indemnified Party in any way relating to or arising out of
this Trust Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee and the Certificate Paying Agent, solely in its capacity as Certificate
Paying Agent, hereunder, provided, that:
(i) the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from the
Owner Trustee's or the Certificate Paying Agent's willful misconduct,
negligence or bad faith or as a result of any inaccuracy of a
representation or warranty of the Owner Trustee contained in Section 6.03
expressly made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party shall have
given the Depositor written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof;
(iii) while maintaining control over its own defense, the Depositor
shall consult with the Indemnified Party in preparing such defense; and
(iv) notwithstanding anything in this Agreement to the contrary, the
Depositor shall not be liable for settlement of any claim by an Indemnified
Party entered into without the prior consent of the Depositor which consent
shall not be unreasonably withheld.
25
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the Certificate Paying Agent or the
termination of this Trust Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section 7.02, the
Owner Trustee's or the Certificate Paying Agent's choice of legal counsel, if
other than the legal counsel retained by the Owner Trustee or the Certificate
Paying Agent in connection with the execution and delivery of this Trust
Agreement, shall be subject to the approval of the Depositor, which approval
shall not be unreasonably withheld. In addition, upon written notice to the
Owner Trustee or the Certificate Paying Agent and with the consent of the Owner
Trustee or the Certificate Paying Agent which consent shall not be unreasonably
withheld, the Depositor has the right to assume the defense of any claim, action
or proceeding against the Owner Trustee or the Certificate Paying Agent.
26
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement. (a) This Trust Agreement
(other than Article VII) and the Trust shall dissolve wind up and terminate in
accordance with Section 3808 of the Delaware Business Statute and be of no
further force or effect upon the earliest of (i) the final distribution of all
moneys or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture and this Trust Agreement or (ii) purchase by the
Servicer or the Majority Certificateholder of all Mortgage Loans pursuant to
Section 11.01 of the Sale and Servicing Agreement; provided in each case that
all amounts owing to the Noteholders and the Note Insurer to the extent payable
from the Owner Trust Estate or proceeds thereof have been paid in full and that
all obligations under the Indenture have been discharged. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not
(x) operate to terminate this Trust Agreement or the Trust or (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or the Owner Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to Certificateholders
and the Note Insurer mailed within five Business Days of receipt of notice of
the final payment on the Notes from the Indenture Trustee, stating (i) the
Payment Date upon or with respect to which final payment of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Certificate Paying Agent therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Certificate Paying Agent
therein specified. The Certificate Paying Agent shall give such notice to the
Owner Trustee and the Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
27
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the
Certificateholders.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810(c) of the Business Trust Statute.
28
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Business Trust Statute; authorized to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; or is otherwise
acceptable to the Rating Agencies and the Note Insurer. If such corporation
shall publish reports of condition at least annually pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.01, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days
prior written notice thereof to the Indenture Trustee, the Note Insurer and the
Depositor. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Owner Trustee with the consent of the Note Insurer,
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Depositor or the Note Insurer, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Owner Trustee
with the consent of the Note Insurer.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee and to its predecessor Owner Trustee an instrument accepting
such appointment under this Trust Agreement, and thereupon the resignation or
removal of the predecessor Owner Trustee shall become effective, and
29
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 Trust Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees
and expenses deliver to the successor Owner Trustee all documents and statements
and monies held by it under this Trust Agreement; and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Note Insurer and the Rating
Agencies and shall file a certificate of amendment to the Certificate of Trust
reflecting the successor Owner Trustee's name and address.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
30
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust Agreement;
and
(c) The Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
31
ARTICLE X
Miscellaneous
Section 10.01. Amendments. (a) This Trust Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided that
any amendment, except as provided in subparagraph (e) below, be accompanied by
an Opinion of Counsel addressed to the Owner Trustee and obtained by the
Servicer to the effect that such amendment (i) complies with the provisions of
this Section and (ii) would not cause the Trust (if Superior Bank FSB were not
the Holder of 100% of the Certificates) to be subject to an entity level tax for
federal income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to correct any
mistake, eliminate any inconsistency, cure any ambiguity or deal with any matter
not covered (i.e. to give effect to the intent of the parties and, if
applicable, to the expectations of the Holders), it shall not be necessary to
obtain the consent of any Holders, but the Owner Trustee shall be furnished with
(A) confirmation in writing from each of the Rating Agencies that the amendment
will not result in the qualification, downgrading or withdrawal of the rating
then assigned to any Note or (B) an Opinion of Counsel obtained by the Servicer
to the effect that such action will not adversely affect in any material respect
the interests of any Holders.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee
shall be furnished with an Opinion of Counsel obtained by the Servicer that such
amendment is necessary or helpful to prevent the imposition of such taxes and is
not materially adverse to any Holder.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of this Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) an Opinion of Counsel obtained by the
Servicer to the effect that such action will not adversely affect in any
material respect the interests of any Holders, (B) the consent of the Note
Insurer and (C) either (a) confirmation in writing from each of the Rating
Agencies that the amendment will not result in the qualification, downgrading or
withdrawal of the rating then assigned to any Note or (b) the consent of Holders
of Certificates evidencing a majority of the Percentage Interests in the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding.
(e) If the purpose of the amendment is to provide for the holding of any of
the Certificates in book-entry form, it shall require the consent of Holders of
all such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
32
(f) If the purpose of the amendment is to provide for the issuance of
additional certificates representing an interest in the Trust, it shall not be
necessary to obtain the consent of any Holder, but the Owner Trustee shall be
furnished with (A) an Opinion of Counsel obtained by the Servicer to the effect
that such action will not adversely affect in any material respect the interests
of any Holders and (B) confirmation in writing from each of the Rating Agencies
that the amendment will not result in the qualification, downgrading or
withdrawal of the rating then assigned to any Note.
(g) Promptly after the execution of any such amendment or consent, the
Servicer shall furnish written notification of the substance of such amendment
or consent to each Certificateholder, the Indenture Trustee, the Note Insurer
and each of the Rating Agencies. It shall not be necessary for the consents
required pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents provided for in this Trust Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner Trustee
shall be entitled to receive and conclusively rely upon an Opinion of Counsel to
the effect that such amendment is authorized or permitted by the documents
subject to such amendment and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The Certificateholders
shall not have legal title to any part of the Owner Trust Estate solely by
virtue of their status as a Certificateholder. The Certificateholders shall be
entitled to receive distributions with respect to their undivided beneficial
interest therein only in accordance with Articles V and VIII. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders to and in their ownership interest in the Owner Trust Estate
shall operate to terminate this Trust Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Owner Trust Estate
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Note Insurer, and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Trust Agreement (other than Section 2.07), whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Trust Agreement or any covenants, conditions or provisions contained herein.
33
Section 10.04. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: AFC Trust
Series 1999-3; to the Depositor at: Superior Bank FSB, Xxx Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000; Attention: President; to the Indenture Trustee
and the Certificate Paying Agent at: LaSalle Bank National Association, 000
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000; Attention: Asset-Backed Securities
Trust Service Department - AFC Trust Series 1999-3; to the Note Insurer,
Financial Guaranty Insurance Company, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Research and Risk Management-AFC Trust Series 1999-3 or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Trust Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall
also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors and
each Certificateholder and its successors and permitted assigns, all as herein
provided and the Note Insurer. Any request, notice, direction, consent, waiver
or other instrument or action by a Certificateholder shall bind the successors
and assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust
Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this Trust
Agreement.
34
Section 10.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Seller, the Servicer, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Trust Agreement, the Certificates or the Basic Documents.
Section 10.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understanding pertaining thereto.
Section 10.13. Benefits of Trust Agreement. The Note Insurer and its
successors and assigns shall be a third-party beneficiary to the provisions of
this Trust Agreement. To the extent that this Trust Agreement confers upon or
gives or grants to the Note Insurer any right, remedy or claim under or by
reason of this Trust Agreement, the Note Insurer may enforce any such right,
remedy or claim conferred, given or granted hereunder. Nothing in this Trust
Agreement shall give to any Person other than the parties hereto and their
successors hereunder, and the Note Insurer, any benefit or any legal or
equitable right, remedy or claim under this Trust Agreement.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
SUPERIOR BANK FSB
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
WILMINGTON TRUST COMPANY, as Owner Trustee,
By: /s/ W. Xxxxx Xxxxxxxxxx
---------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
Acknowledged and Agreed:
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
and Certificate Paying Agent
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: First Vice President
EXHIBIT A
Form of Certificate
[Face]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN OPINION OF COUNSEL AS DESCRIBED IN THE TRUST
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS
TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF CERTIFICATES OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
EMPLOYEE BENEFIT PLAN OR CERTAIN OTHER RETIREMENT PLANS AND ARRANGEMENTS,
INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND BANK
COLLECTIVE INVESTMENT FUNDS AND INSURANCE COMPANY GENERAL OR SEPARATE ACCOUNTS
IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT ARE SUBJECT TO
ERISA, OR SECTION 4975 OF THE CODE (COLLECTIVELY, "PLAN"), ANY PERSON ACTING,
DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON ACQUIRING SUCH
CERTIFICATES WITH "PLAN ASSETS" OF A PLAN WITHIN THE MEANING OF THE DEPARTMENT
OF LABOR REGULATION PROMULGATED AT 29 C.F.R. SS.2510.3-101 ("PLAN ASSETS")
UNLESS THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR AND THE
SERVICER ARE PROVIDED WITH AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE
SATISFACTION OF THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR AND
THE SERVICER THAT THE PURCHASE OF CERTIFICATES IS PERMISSIBLE UNDER APPLICABLE
LAW, WILL NOT CONSTITUTE OR RESULT IN ANY PROHIBITED TRANSACTION UNDER ERISA OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE,
THE CERTIFICATE REGISTRAR OR THE SERVICER TO ANY
A-2
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR
SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE TRUST
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE DEPOSITOR,
THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR THE SERVICER. IN LIEU OF SUCH
OPINION OF COUNSEL, A PLAN, ANY PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF
OF ANY SUCH PLAN OR ANY PERSON ACQUIRING SUCH CERTIFICATES WITH PLAN ASSETS OF A
PLAN MAY PROVIDE A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE TRUST
AGREEMENT, WHICH THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR AND
THE SERVICER MAY RELY UPON WITHOUT FURTHER INQUIRY OR INVESTIGATION. NEITHER AN
OPINION OF COUNSEL NOR A CERTIFICATION WILL BE REQUIRED IN CONNECTION WITH THE
INITIAL TRANSFER OF ANY SUCH CERTIFICATE BY THE DEPOSITOR TO AN AFFILIATE OF THE
DEPOSITOR (IN WHICH CASE, THE DEPOSITOR OR ANY AFFILIATE THEREOF SHALL HAVE
DEEMED TO HAVE REPRESENTED THAT SUCH AFFILIATE IS NOT A PLAN OR A PERSON
INVESTING PLAN ASSETS OF ANY PLAN) AND THE OWNER TRUSTEE AND THE CERTIFICATE
REGISTRAR SHALL BE ENTITLED TO CONCLUSIVELY RELY UPON A REPRESENTATION (WHICH,
UPON THE REQUEST OF THE OWNER TRUSTEE OR THE CERTIFICATE REGISTRAR, SHALL BE A
WRITTEN REPRESENTATION) FROM THE DEPOSITOR OF THE STATUS OF SUCH TRANSFEREE AS
AN AFFILIATE OF THE DEPOSITOR.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST
AGREEMENT OR THE BASIC DOCUMENTS.
A-3
Certificate No. ___ Certificate Percentage Interest of this
Certificate: _________%
Cut-off Date: September 1, 1999
Date of
Trust Agreement:
September 1, 1999
Servicer: Superior Bank FSB
AFC TRUST SERIES 1999-3
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Mortgage Loans held by
AFC Trust Series 1999-3 (the "Trust"), a Delaware business trust formed by
SUPERIOR BANK FSB, AS DEPOSITOR, pursuant to the Trust Agreement referred to
below.
This certifies that ________________________ is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Trust Agreement, dated as of September
1, 1999 (as amended and supplemented from time to time, the "Trust Agreement")
between the Depositor and Wilmington Trust Company, as owner trustee (the "Owner
Trustee", which term includes any successor entity under the Trust Agreement), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate is one of a duly authorized issue of AFC Trust
Certificates, Series 1999-3 (herein called the "Certificates") issued under the
Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the Holders
of the Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement. The
Owner Trust Estate consists of the Mortgage Loans held by the Trust. The rights
of the Holders of the Certificates are subordinated to the rights of the Holders
of the Notes, as set forth in the Indenture, dated as of September 1, 1999 ,
between the Trust and LaSalle Bank National Association, as Indenture Trustee
(the "Indenture").
There will be distributed on the 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on October 25, 1999, to the
A-4
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month preceding the month of such Payment Date (the
"Record Date"), such Certificateholder's Percentage Interest in the amount to be
distributed to Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Payment Account that have
been released from the Lien of the Indenture for payment hereunder and that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Trust Agreement or, except as expressly provided in the Trust
Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture.
The Depositor and each Certificateholder, by acceptance of a Certificate,
agree to treat, and to take no action inconsistent with the treatment of, the
Certificates for federal, state and local income tax purposes as an equity
interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Depositor, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust in the
Borough of Manhattan, The City of New York.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Agreement as Exhibit C (or in
such form and substance reasonably satisfactory
A-5
to the Certificate Registrar and the Depositor) which investment letters shall
not be an expense of the Trust, the Owner Trustee, the Certificate Registrar,
the Servicer or the Depositor and which investment letter states that, among
other things, such transferee (a) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A, and (b) is aware
that the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule 144A
or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said Act
and laws, which Opinion of Counsel shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and (b)
the transferee executes a representation letter, substantially in the form of
Exhibit D to the Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit E to the Agreement, each acceptable to and
in form and substance satisfactory to the Certificate Registrar, the Servicer
and the Depositor certifying the facts surrounding such transfer, which
representation letters shall not be an expense of the Trust, the Owner Trustee,
the Certificate Registrar, the Servicer or the Depositor and (B) the Certificate
of Non-Foreign Status (in substantially the form attached to the Agreement as
Exhibit D) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Servicer and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of Certificates or any interest therein shall be made to any
employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject to
ERISA, or Section 4975 of the Code (collectively, "Plan"), any person acting,
directly or indirectly, on behalf of any such Plan or any Person acquiring such
certificates with "plan assets" of a Plan within the meaning of the Department
of Labor Regulation promulgated at 29 C.F.R. ss.2510.3-101 ("Plan Assets")
unless the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar and
the Servicer that the purchase of Certificates is permissible under applicable
law, will not constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Owner Trustee,
the Certificate Registrar or the Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Certificate
Registrar or the Servicer. In lieu of such Opinion of Counsel, a Plan, any
Person acting, directly or indirectly, on behalf of any such Plan or any person
acquiring such Certificates with Plan
A-6
Assets of a Plan may provide a certification in the form of Exhibit G to the
Agreement, which the Depositor, the Owner Trustee, the Certificate Registrar and
the Servicer may rely upon without further inquiry or investigation. Neither an
Opinion of Counsel nor a certification will be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee and the Certificate
Registrar shall be entitled to conclusively rely upon a representation (which,
upon the request of the Owner Trustee or the Certificate Registrar, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
an Opinion of Counsel, rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, to the
effect that such transfer (including any disposition permitted following any
default under any pledge or repurchase transaction) will not cause the Trust to
be (i) treated as an association taxable as a corporation for federal income tax
purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i)
of the Code or (iii) taxable as a "publicly traded partnership" as defined in
Treasury Regulation section 1.7704-1.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-7
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: ____________, 19___ By: __________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: _____________________________________
Authorized Signatory
or _____________________________________
as Authenticating Agent of the Trust
By: _____________________________________
Authorized Signatory
A-8
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or
any Affiliates of any of them and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Mortgage
Loans, all as more specifically set forth herein and in the Trust Agreement. A
copy of the Trust Agreement may be examined by any Certificateholder upon
written request during normal business hours at the principal office of the
Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the Owner
Trustee to the effect that such amendment complies with the provisions of the
Trust Agreement and, if Superior Bank FSB was not the Holder of 100% of the
Certificates, would not cause the Trust to be subject to an entity level tax. If
the purpose of the amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is outstanding, it shall not be
necessary to obtain the consent of the any Holder, but the Owner Trustee shall
be furnished with an Opinion of Counsel that such amendment is necessary or
helpful to prevent the imposition of such taxes and is not materially adverse to
any Holder. If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement, other than as specified in the preceding two
sentences, the amendment shall require the consent of Holders of the
Certificates evidencing a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment without the consent of the Holders of all such Certificates then
outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trust in the Borough of Manhattan, The City of New York, accompanied by a
written instrument of transfer in form satisfactory to the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is LaSalle Bank National Association.
Except as provided in the Trust Agreement, the Certificates are issuable
only in a minimum Certificate Percentage Interest of 10%. As provided in the
Trust Agreement and subject to certain
A-9
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar
and any agent of the Owner Trustee, the Certificate Paying Agent, or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate as and when provided in accordance with
the terms of the Trust Agreement.
A-10
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
___________________________*/
Signature Guaranteed:
___________________________*/
----------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-11
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to ___________________________________________________________________ for the
account of ________________________________________, account number
______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to__________________.
_________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
TO THE TRUST AGREEMENT
CERTIFICATE OF TRUST OF
AFC Trust Series 1999-3
THIS Certificate of Trust of AFC Trust Series 1999-3 (the "Trust"), dated
September ___, 1999, is being duly executed and filed by ______________________,
a Delaware banking corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. Code, ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is AFC Trust Series
1999-3.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is ______________________, __________________,
__________, ______________, Attention: ______________________________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as owner trustee under a Trust
Agreement dated as of ____________,
19___
By: ____________________________________
Name:
Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee and the Depositor (as defined in the Trust Agreement (the "Agreement"),
dated as of September 1, 1999, between Superior Bank FSB, as Depositor and
Wilmington Trust Company, as Owner Trustee pursuant to [Section 3.05] of the
Agreement and to LaSalle Bank National Association as indenture trustee, as
follows:
a. The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Rule 144A Securities.
C-2
c. The Buyer has been furnished with all information regarding the
Rule 144A Securities that it has requested from the Seller, the Indenture
Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security from, or otherwise approached
or negotiated with respect to the Rule 144A Securities, any interest in the
Rule 144A Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, that would constitute a
distribution of the Rule 144A Securities under the 1933 Act or that would
render the disposition of the Rule 144A Securities a violation of Section 5
of the 1933 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. The Buyer is aware that the sale to it is being made in reliance on Rule
144A. The Buyer is acquiring the Rule 144A Securities for its own account
or the accounts of other qualified institutional buyers, understands that
such Rule 144A Securities may be resold, pledged or transferred only (i) to
a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the Seller,
the Indenture Trustee, Owner Trustee, Servicer and the Depositor that either (1)
the Buyer is (A) not an employee benefit plan (within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), or a plan (within the meaning of Section 4975(e)(1) of the Internal
Revenue Code of 1986 ("Code")), which (in either case) is subject to ERISA or
Section 4975 of the Code (both a "Plan"), and (B) is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan, or (2) the
Buyer has delivered, and attached hereto, an opinion of its counsel, addressed
and satisfactory to the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer which establishes to the satisfaction of the Depositor, the
Owner Trustee, the Certificate Registrar and the Servicer that the purchase of
Certificates is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Depositor, the Owner Trustee, the Certificate Registrar
or the Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code)
C-3
in addition to those undertaken in the Trust Agreement between Superior Bank FSB
and Wilmington Trust Company dated as of September 1, 1999, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer, or (3) the Buyer has provided, and
attached hereto, a certification in the form of Exhibit G to this Agreement,
which the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer may conclusively rely upon without further inquiry or investigation.
4. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of
the date set forth below.
___________________________ ______________________________
Print Name of Seller Print Name of Buyer
By: ________________________ By: __________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. ____________________ No. ___________________________
Date: __________________ Date: _________________________
C-4
+
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $______________________1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements.
--------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-5
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer
C-6
and did not include any of the securities referred to in the preceding
paragraph. Further, in determining such aggregate amount, the Buyer may have
included securities owned by subsidiaries of the Buyer, but only if such
subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein. Until such notice
is given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
_________________________________________
Print Name of Buyer
By: _____________________________________
Name:
Title:
Date: __________________________________
C-7
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit Notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v)
C-8
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
___________________________________________
Print Name of Buyer
By: ________________________________________
Name:
Title:
IF AN ADVISER:
___________________________________________
Print Name of Buyer
Date: ______________________________________
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.05 of the Trust Agreement, dated as of September 1, 1999
(the "Trust Agreement"), between Superior Bank FSB, as depositor and Wilmington
Trust Company, as Owner Trustee, in connection with the acquisition of, transfer
to or possession by the undersigned, whether as beneficial owner for U.S.
federal income tax purposes (the "Beneficial Owner"), or nominee on behalf of
the Beneficial Owner of the AFC Trust Certificates, Series 1999-3 (the
"Certificate"). Capitalized terms used but not defined in this certificate have
the respective meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and in
all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien for
purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
_____________________________
_____________________________
_____________________________ ; and
3. My (The Beneficial Owner's) U.S. taxpayer identification number
(Social Security Number) is ______________________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. _____________ (Name of the Beneficial Owner) is not a foreign
corporation, foreign partnership, foreign trust or foreign estate
(as those terms are defined in the Code and Treasury Regulations;
2. The Beneficial Owner's office address and place of incorporation
(if applicable) is
_________________; and
D-2
3. The Beneficial Owner's U.S. employer identification number is
______.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the undersigned
certifies that this certificate has been made in reliance upon information
contained in:
____ an IRS Form W-9
____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
D-3
Under penalties of perjury, I declare that I have examined this certificate
and to the best of my knowledge and belief it is true, correct and complete and
will further declare that I will inform the Trust of any change in the
information provided above, and, if applicable, I further declare that I have
the authority* to sign this document.
_________________________________
Name
_________________________________
Title (if applicable)
_________________________________
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
[Certificate Registrar]
Re: AFC Trust Series 1999-3
AFC Trust Certificates,
Series 1999-3, (the "Certificates")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates, we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
E-2
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Trust Agreement.
Very truly yours,
[TRANSFEREE]
By: ______________________________
Authorized Officer
EXHIBIT F
TRANSFER CERTIFICATE
[OWNER TRUSTEE], as Owner Trustee
_________________________
_________________________
_________________________
[INDENTURE TRUSTEE]
_________________________
_________________________
_________________________
Re: Proposed Transfer of Trust Certificates
Gentlemen:
This certification is being made by ______________ (the "Proposed Transferee")
in connection with the proposed Transfer to the Proposed Transferee of a trust
certificate (the "Trust Certificate") representing ___% fractional undivided
interest in AFC Trust Series 1999-3 (the "Trust") created pursuant to a Trust
Agreement, dated as of September 1, 1999, (the "Deposit Trust Agreement")
between Superior Bank FSB and Wilmington Trust Company, as Owner Trustee.
Initially capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement. The Proposed Transferee hereby
certifies as follows:
1. The undersigned is a Person involved in the organization or operation of
the Trust or an affiliate of such a Person within the meaning of Rule 3a-7 of
the Investment Company Act.
2. The Proposed Transferee understands that (a) the Trust Certificates have
not been and will not be registered or qualified under the Securities Act, or
the securities laws of any state, (b) neither the Trust nor the Owner Trustee is
required, and neither intends, to so register or qualify the Trust Certificates,
and (c) the Trust Certificates cannot be resold unless (i) they are registered
and qualified under the Securities Act and the applicable state securities laws
or (ii) an exemption from registration and qualification is available.
3. The Proposed Transferee is acquiring the Trust Certificate for its own
account for investment only and not with a view to or for sale or other transfer
in connection with any distribution of the Trust Certificate in any manner that
would violate the Securities Act or any applicable state securities laws.
F-2
4. The Proposed Transferee (a) is an accredited investor having such
knowledge and experience in financial and business matters, and in particular in
such matters related to securities similar to the Trust Certificate, such that
it is capable of evaluating the merits and risks of investment in the Trust
Certificate and (b) is able to bear the economic risks of such an investment.
5. The Proposed Transferee will not authorize nor has it authorized any
person (a) to offer, pledge, sell, dispose of or otherwise transfer any Trust
Certificate, any interest in any Trust Certificate or any other similar security
to any person in any manner, (b) to solicit any offer to buy or to accept a
pledge, disposition or other transfer of any Trust Certificate, any interest in
any Trust Certificate or any other similar security from any person in any
manner, (c) otherwise to approach or negotiate with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar security
with any person in any manner, (d) to make any general solicitation by means of
general advertising or in any other manner, or (e) to take any other action that
would constitute a distribution of any Trust Certificate under the Securities
Act, that would render the disposition of any Trust Certificate a violation of
Section 5 of the Securities Act or any state securities law, or that could
require registration or qualification pursuant thereto. Neither the Proposed
Transferee nor anyone acting on its behalf has offered any Trust Certificate for
sale or made any general solicitation by means of general advertising or in any
other manner with respect to the Trust Certificate. The Proposed Transferee will
not sell or otherwise transfer any Trust Certificates, except in compliance with
the provisions of the Deposit Trust Agreement.
Date: ______________ ___________________________________
Name of Proposed Transferee
__________________________________
Signature
__________________________________
Name
__________________________________
Titled
EXHIBIT G
FORM OF PLAN CERTIFICATION
The purchase of Certificates by or on behalf of the purchaser is
permissible under applicable law, will not subject the Depositor, the Trustee or
the Servicer to any obligation in addition to those undertaken in the Trust
Agreement between Superior Bank FSB and Wilmington Trust Company dated as of
September 1, 1999, and the following statements are correct: (i) the transferee
is an insurance company and the source of funds used to purchase such
Certificates is an "insurance company general account" (as such term is defined
in Prohibited Transaction Class Exemption ("PTCE") 95-60), (ii) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied and (iii)
there is no employee benefit plan within the meaning of section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended or plan within the
meaning of section 4975 of the Internal Revenue Code of 1986 ("Plan") with
respect to which the amount of such general accounts reserves and liabilities
for contracts held by or on behalf of such Plan and all other Plans maintained
by the same employer (or any "affiliate" thereof, as defined in PTCE 95-60) or
by the same employee organization exceed 10% of the total of all reserves and
liabilities of such general account (as determined under PTCE 95-60) as of the
date of the acquisition of such Certificates.
_____________________________________
Print Name of Buyer
By: _________________________________
Name:
Title:
IF AN ADVISER:
______________________________________
Print Name of Adviser
Date: ________________________________
