EXHIBIT 4.2
EXECUTION COPY
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ORIGEN RESIDENTIAL SECURITIES, INC.
as Depositor
WILMINGTON TRUST COMPANY
as Owner Trustee
and
JPMORGAN CHASE BANK, N.A.
as Certificate Registrar and Certificate Paying Agent
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TRUST AGREEMENT
Dated as of December 1, 2005
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Trust Certificates,
Series 2005-B
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Table of Contents
Section Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................. 1
Section 1.02. Other Definitional Provisions........................... 1
ARTICLE II
ORGANIZATION
Section 2.01. Name.................................................... 2
Section 2.02. Office.................................................. 2
Section 2.03. Purposes and Powers..................................... 2
Section 2.04. Appointment of Owner Trustee............................ 3
Section 2.05. Initial Capital Contribution of Owner Trust Estate...... 3
Section 2.06. Declaration of Trust.................................... 3
Section 2.07. Liability of the Holders of the Certificates............ 4
Section 2.08. Title to Trust Property................................. 4
Section 2.09. Situs of Trust.......................................... 4
Section 2.10. Representations and Warranties of the Depositor......... 4
Section 2.11. Payment of Trust Fees................................... 5
Section 2.12. Investment Company...................................... 5
Section 2.13. Transfer of Trust Estate to Owner Trustee............... 5
ARTICLE III
CONVEYANCE OF THE CONTRACTS; CERTIFICATES
Section 3.01. Conveyance of the Contracts............................. 7
Section 3.02. Initial Ownership....................................... 7
Section 3.03. The Certificates........................................ 7
Section 3.04. Authentication of Certificates.......................... 8
Section 3.05. Registration of and Limitations on Transfer and Exchange
of Certificates...................................... 8
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates....... 10
Section 3.07. Persons Deemed Certificateholders....................... 11
Section 3.08. Access to List of Certificateholders' Names and
Addresses............................................ 11
Section 3.09. Maintenance of Office or Agency......................... 11
Section 3.10. Certificate Paying Agent................................ 11
PAGE
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ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01. General Authority....................................... 13
Section 4.02. General Duties.......................................... 13
Section 4.03. Action upon Instruction................................. 13
Section 4.04. No Duties Except as Specified under Specified Documents
or in Instructions................................... 14
Section 4.05. Restrictions............................................ 14
Section 4.06. Prior Notice to Certificateholders with Respect to
Certain Matters...................................... 14
Section 4.07. Action by Certificateholders with Respect to Certain
Matters.............................................. 15
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy........................................... 15
Section 4.09. Restrictions on Certificateholders' Power............... 15
Section 4.10. Majority Control........................................ 15
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01. Distributions........................................... 16
Section 5.02. Method of Payment....................................... 16
Section 5.03. Tax Returns............................................. 16
Section 5.04. Statements to Certificateholders........................ 17
ARTICLE VI
CONCERNING THE BANK
Section 6.01. Acceptance of Trusts and Duties......................... 17
Section 6.02. Furnishing of Documents................................. 18
Section 6.03. Representations and Warranties.......................... 18
Section 6.04. Reliance; Advice of Counsel............................. 19
Section 6.05. Not Acting in Individual Capacity....................... 20
Section 6.06. Bank Not Liable for Certificates or Related Documents... 20
Section 6.07. Bank May Own Certificates and Notes..................... 20
Section 6.08. Payments from Owner Trust Estate........................ 20
Section 6.09. Doing Business in Other Jurisdictions................... 21
Section 6.10. Liability of Certificate Registrar and Certificate
Paying Agent......................................... 21
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee Fees and Expenses......................... 21
Section 7.02. Indemnification......................................... 21
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PAGE
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ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.......................... 22
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee.............. 24
Section 9.02. Replacement of Owner Trustee............................ 24
Section 9.03. Successor Owner Trustee................................. 24
Section 9.04. Merger or Consolidation of Owner Trustee................ 25
Section 9.05. Appointment of Co-Trustee or Separate Trustee........... 25
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments.............................................. 26
Section 10.02. No Legal Title to Owner Trust Estate.................... 28
Section 10.03. Limitations on Rights of Others......................... 28
Section 10.04. Notices................................................. 28
Section 10.05. Severability............................................ 29
Section 10.06. Separate Counterparts................................... 29
Section 10.07. Successors and Assigns.................................. 29
Section 10.08. No Petition............................................. 29
Section 10.09. No Recourse............................................. 29
Section 10.10. Headings................................................ 30
Section 10.11. GOVERNING LAW........................................... 30
Section 10.12. Integration............................................. 30
EXHIBITS
Exhibit A - Form of Certificate........................................... A-1
Exhibit B - Certificate of Trust of Origen Manufactured Housing Contract
Trust 2005-B............................................... B-1
Exhibit C - [Reserved].................................................... 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 Transferor Certificate................................ F-1
Exhibit G - Form of ERISA Letter.......................................... G-1
Exhibit H - Form of Transferee Certificate................................ H-1
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This Trust Agreement, dated as of December 1, 2005 (as amended from time to
time, this "Trust Agreement"), among Origen Residential Securities, Inc., a
Delaware corporation, as depositor (the "Depositor"), Wilmington Trust Company,
Delaware banking corporation, as owner trustee (the "Owner Trustee" and in its
individual capacity, the "Bank"), and JPMorgan Chase Bank, N.A., as certificate
registrar (in such capacity, the "Certificate Registrar") and certificate paying
agent (in such capacity, the "Certificate Paying Agent").
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 Appendix A to the Indenture, dated December 1, 2005, between
Origen Manufactured Housing Contract Trust 2005-B, as Issuer, and JPMorgan Chase
Bank, N.A., as Indenture Trustee, which is incorporated by reference 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".
(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.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The trust created hereby (the "Trust") shall be known
as "Origen Manufactured Housing Contract Trust 2005-B", 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 sue 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 to engage in
the following activities and the Trust shall have the power and authority:
(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 Contracts
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to Section 5.01 herein, any portion of the
Contracts 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;
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(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; and
(viii) as set forth in the Indenture, at any time on or after the
Closing Date, the Issuer shall have the right to convey to the Trust
Estate, solely for the benefit of the Holder of the Certificates, a
derivative contract or comparable instrument. Any such instrument shall
constitute a fully prepaid agreement. All collections, proceeds and other
amounts in respect of such an instrument shall be distributed to the
Certificates on the Payment Date following receipt thereof by the Indenture
Trustee.
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.
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 pursuant to Section
3.01 of the Contracts and the rights with respect to the representations and
warranties made by the Seller and the Originator under the Asset Purchase
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 "statutory trust" under the
Statutory Trust Statute and that this Trust Agreement constitute the governing
instrument of such statutory trust. It is the intention of the parties hereto
that, for federal, state and local income and franchise tax purposes, the Trust
(A) shall not be treated as (i) an association subject separately to taxation as
a corporation or (ii) a "publicly traded partnership" as defined in Treasury
Regulation Section 1.7704-1, (B) shall, as of the Closing Date and for so long
as any Notes are outstanding be treated for federal income tax purposes as a
qualified REIT subsidiary within the meaning of Section 856(i) of the Code, and
thereafter be disregarded as a separate entity (and if at any other time the
Trust Certificates are held by more than one person for federal income tax
purposes, shall be treated as a partnership), and (C) that each Class of Notes
shall be debt, and the provisions of this Agreement shall be interpreted to
further this intention. It is the intention of the parties hereto that, for
federal, state and local tax purposes, the Depositor shall at no time be treated
as an owner of the Contracts or as the issuer of or obligor on indebtedness
secured by the Contracts and evidenced by the Notes, and the parties hereto
mutually covenant to take all pertinent tax reporting positions consistent with
that intent. Except as otherwise provided in this Trust Agreement, the rights of
the Certificateholder will be those of
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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 Statutory
Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.07. Liability of the Holders of the Certificates. 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); 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 (other than in connection with the
obligations described in the second preceding sentence for which the Holders of
the Certificates shall not be liable) shall be deemed third party beneficiaries
of this paragraph. The obligations of the Holders of the Certificates under this
paragraph shall be evidenced by the Certificates.
Section 2.08. Title to Trust Property. Except with respect to the
Contracts, 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. The Trust shall
not have any employees in any state other than Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware or taking actions outside the
State of Delaware in order to comply with Section 2.03. Payments will be
received by the Trust only in Delaware or New York, and payments will be made by
the Trust only from Delaware or New York. 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 duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted.
(ii) The Depositor is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its
property or the conduct of its business shall require such qualifications
and in which the failure to so qualify would have a material adverse effect
on the business, properties, assets or condition (financial or other) of
the Depositor.
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(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,
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.
(v) The Trust is not required to register as an investment company
under the Investment Company Act and is not under the control of a Person
required to so register.
Section 2.11. Payment of Trust Fees. Pursuant to the Section 8.02 of the
Indenture, on each Payment Date commencing on the 13th Payment Date, the
Indenture Trustee shall remit to the Owner Trustee the Owner Trustee Fee for
such Payment Date.
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.
Section 2.13. Transfer of Trust Estate to Owner Trustee.
(a) Effective as of the date hereof, the Depositor does hereby assign,
transfer, and otherwise convey to, and deposit with, the Trust, until this
Agreement terminates pursuant to Section 8.01, the entire Trust Estate, such
conveyance to be made in exchange for the Notes and the Certificates. Such
assignment includes, without limitation, all amounts payable to and all rights
of the holder of the Collateral pursuant to this Agreement.
(b) The conveyance of the Collateral and all other assets constituting the
Trust Estate by the Depositor as contemplated hereby is absolute and is intended
by the parties, other than for federal, state and local income and franchise tax
purposes, to constitute a sale of the Collateral and all other assets
constituting the Trust Estate by the Depositor to the Trust. It is, further, not
intended that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event:
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(i) this Agreement shall constitute a security agreement under
applicable law and shall be deemed to create valid and continuing security
interest (as defined in the applicable UCC) in the Trust Estate (including,
without limitation, the Collateral, the Certificate Distribution Account
and any proceeds thereof) in favor of the Trust, which security interest is
prior to all other Liens, and is enforceable as such as against creditors
of and purchasers from the Depositor;
(ii) other than the security interest granted to the Trust pursuant to
this Agreement, Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Trust Estate, has
not authorized the filing of and is not aware of any financing statements
against the Trust Estate that includes a description of collateral covering
the Trust Estate other than any financing statements relating to the
security interest granted to the Trust hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien filings
against Depositor;
(iii) the Depositor owns and has good and marketable title to the
Trust Estate free and clear of any Lien, claim or encumbrance of any
Person;
(iv) the Certificate Distribution Account constitutes a "deposit
account" within the meaning of the applicable UCC. The Depositor has
directed the bank where the Certificate Distribution Account is held to
take all steps necessary to cause the Certificate Paying Agent to become
the account holder of the Certificate Distribution Account. The Certificate
Distribution Account is not in the name of any Person other than as
provided in Section 3.10 of this Agreement. The Depositor has not consented
to the maintenance of the Certificate Distribution Account in compliance
with instructions of any Person other than the Certificate Paying Agent;
(v) the Trust Estate (excluding the Certificate Distribution Account
and any proceeds thereof) constitutes "deposit accounts," "general
intangibles" and "instruments" within the meaning of the applicable UCC).
The Depositor has received all required consents and approvals to the
pledge of the portions of the Trust Estate (excluding the Certificate
Distribution Account and any proceeds thereof) constituting payment
intangibles;
(vi) the Depositor has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the appropriate
filing offices under applicable law in order to perfect the security
interest in the Trust Estate granted to the Trust hereunder. All financing
statements filed or to be filed against the Depositor in favor of the Trust
(or any subsequent assignee, including, without limitation, the Indenture
Trustee) in connection herewith describing the Trust Estate contain a
statement to the following effect, "A purchase of, or security interest in,
any collateral described in this financing statement will violate the
rights of the secured party;" and
(vii) the Depositor shall, to the extent consistent with this
Agreement, take such additional reasonable actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in
the Collateral and the other assets of the Trust Estate, such security
interest would be a perfected security interest of first priority under
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applicable law and will be maintained as such throughout the life of this
Agreement. Notifications to, and acknowledgments, receipts or confirmations
from, Persons holding such property, shall be deemed to be notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Owner Trustee on
behalf of the Trust (or any subsequent assignee, including, without
limitation, the Indenture Trustee) for the purpose of perfecting such
security interest under applicable law.
(c) The Owner Trustee declares that it holds and will hold the Trust Estate
and such documents and instruments and that it holds and will hold all other
assets and documents to be included in the Trust Estate, in trust for the
exclusive use and benefit of all present and future Certificateholders.
(d) Except as expressly provided in Section 8.01, neither the Depositor nor
any Certificateholder shall be able to revoke the Trust established hereunder.
Except as provided in Sections 4.01, 4.02, 4.03, 5.01 and 8.01 hereof, the Owner
Trustee or Certificate Paying Agent (as applicable) shall not assign, sell,
dispose of or transfer any interest in, nor may the Depositor or any
Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
ARTICLE III
CONVEYANCE OF THE CONTRACTS; CERTIFICATES
Section 3.01. Conveyance of the Contracts. The Depositor, concurrently with
the execution and delivery hereof, does hereby contribute, transfer, convey and
assign to the Trust, on behalf of the Holders of the Notes and the Certificates,
without recourse, all its right, title and interest in and to the Contracts,
including all interest and principal received on or with respect to the
Contracts after the Cut-off Date (other than payments of principal and interest
due on the Contracts on or before the Cut-off Date). In addition, the Depositor
hereby assigns to the Trust all of its right, title, and interest in, to, and
under the Asset Purchase Agreement. Upon assignment to the Depositor of any
Eligible Substitute Contract under the Asset Purchase Agreement, the Depositor
shall, and hereby does, assign the same to the Issuer.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the conveyance
of the Contracts pursuant to Section 3.01 and the issuance of the Certificates,
and thereafter except as otherwise permitted hereunder, the Depositor shall be
the sole beneficial owner.
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. At initial issuance, 100% of the Certificates
shall be issued to and registered in the name of Origen CMO Residual Holding
Company, LLC as designee of the Depositor and the Seller. The Certificates shall
be executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee and authenticated in the manner provided
in Section 3.04. 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
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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, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No 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 of
Certificates and of transfers and exchanges of Certificates as herein provided.
JPMorgan Chase Bank, N.A., shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Majority Certificateholder,
with the consent of the Owner Trustee, shall appoint a successor Certificate
Registrar.
Subject to satisfaction of the conditions set forth below with respect to
the Certificate, 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 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.
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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 person shall become a Certificateholder, so long as any Notes are
Outstanding, until it shall establish its status as a real estate investment
trust ("REIT") or as a "qualified REIT subsidiary" ("QRS") within the meaning of
Section 856(a) or Section 856(i) of the Code, respectively, or as an entity that
is disregarded for federal income tax purposes that is wholly owned by a REIT or
a QRS, by submitting to the Certificate Registrar and the Owner Trustee, the
Transferee Certificate set forth in Exhibit H 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 letter 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 (1) 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 (2) 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, the Owner Trustee 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 F to the Agreement, and 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, the Owner Trustee 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, the Owner Trustee 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.
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No transfer of Certificates or any interest therein shall be made to any
Person 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 Trust, the Depositor, the
Owner Trustee, the Certificate Registrar, the Servicer, the Subservicer or the
Backup 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 Trust, the Depositor, the Owner Trustee, the Certificate Registrar, the
Servicer, the Subservicer or the Backup Servicer. In lieu of such Opinion of
Counsel, a Person acquiring such Certificates 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 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 be 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
and the Certificate Registrar 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 and relevant state and local
income and franchise tax purposes, (ii) taxable as a "publicly traded
partnership" as defined in Treasury Regulation section 1.7704-1 for federal
income tax purposes and relevant state and local income or franchise tax
purposes or (iii) otherwise subject to entity level taxation for federal income
tax purposes. Notwithstanding the foregoing, the provisions of this paragraph
shall not apply to the initial transfer of the Certificates to the Depositor.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them 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 shall execute on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen 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
10
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 Certificate Paying Agent shall
be bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor, the Certificate Paying Agent or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor, the Certificate Paying Agent or the Owner Trustee, a list, in
such form as the Depositor, the Certificate Paying Agent 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 Paying Agent, the Certificate Registrar or
the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee on behalf
of the Trust, shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificates may be served. The Owner Trustee initially designates the Corporate
Trust Office of the Certificate Registrar for purposes of such surrender and for
service of notices or demands. The Owner Trustee shall give prompt written
notice to the Depositor, the Certificate Paying Agent, the Certificate Registrar
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
JPMorgan Chase Bank, N.A., as Certificate Paying Agent, and JPMorgan Chase Bank,
N.A., 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;
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(ii) give the Owner Trustee notice of any default by the Trust of
which a Responsible Officer of the Certificate Paying Agent 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 so long
as it is Indenture Trustee 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 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 JPMorgan Chase Bank, N.A., shall no longer
be the Certificate Paying Agent under this Trust Agreement and Paying Agent
under the Indenture, the Majority Certificateholder, with the consent of the
Owner Trustee, shall appoint a successor to act as Certificate Paying Agent
(which shall be a bank or trust company) and which shall also be the successor
Paying Agent under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent hereunder to
execute and deliver to the Owner Trustee an instrument to the effect set forth
in Section 3.10(a) as it relates to the Certificate Paying Agent. The
Certificate Paying Agent shall return all unclaimed funds to the Trust and upon
removal of a Certificate Paying Agent such Certificate Paying Agent shall also
return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the Certificate
Paying Agent to the extent applicable. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself a
trust account (the "Certificate Distribution Account") in which the Certificate
Paying Agent shall deposit, on the same day as it is received from the Indenture
Trustee, each remittance received by the Certificate Paying Agent with respect
to payments made pursuant to the Indenture. The Certificate Paying Agent shall
make all distributions to Certificates, from moneys on deposit in the
Certificate Distribution Account, in accordance with Section 5.01 hereof.
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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 all as approved by
the Depositor, 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.
Section 4.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. 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 required 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 requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders, 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
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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 anytime 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.
Notwithstanding any provision herein or in any other Basic Document, the Owner
Trustee shall not be obligated to prepare, file or execute any documents or
certifications required to be filed by the Trust pursuant to the Sarbanes-Oxley
Act of 2002, as amended. 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, (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 this Trust
Agreement. 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 rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization 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.
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 10 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
14
Trustee in writing prior to the 10th 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 Contracts) 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
Contracts);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this 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 (a) remove the Servicer under the Servicing Agreement
pursuant to Sections 7.01 and 8.05 thereof or (b) except as expressly provided
in the Basic Documents, sell the Contracts after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Certificateholders.
Section 4.08. Action by 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 Noteholders and the Owner Trustee and
the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent. This paragraph shall survive for one year 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 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
15
of Certificates evidencing not less than a majority Percentage Interest of 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
Percentage Interest of the Certificates at the time of the delivery of such
notice.
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01. Distributions.
(a) On each Payment Date, the Certificate Paying Agent shall distribute to
the Certificateholders, on a pro rata basis based on the Certificate Percentage
Interests thereof, all funds remaining on deposit in the Certificate
Distribution Account and available therefor (as provided in Section 3.05 of the
Indenture) for such Payment Date after payment of any expense amounts owing to
the Owner Trustee hereunder and any Expenses of the Trust remaining unpaid.
(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.
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 by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.03. Tax Returns. Pursuant to the Servicing Agreement, the
Servicer and the Administrator have agreed that they shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis using
the accrual method of accounting, (b) prepare and file or cause to be prepared
and filed such tax returns relating to the Trust as may be required by the
16
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); provided, however, that the Administrator shall
not be required to prepare and file partnership tax returns on behalf of the
Issuer unless the Administrator receives an opinion of counsel reasonably
satisfactory to it (which shall not be at the Indenture Trustee's expense, but
shall be at the expense of the Depositor or other party furnishing such opinion)
as to the necessity of such filings and provided further, that the neither the
Servicer nor the Administrator shall be required to compute the Issuer's gross
income except to the extent it can do so without unreasonable effort or expense
based upon income statements furnished to it. Pursuant to the Indenture and
solely with respect to filing Form 1099 tax returns, the Indenture Trustee has
agreed that it shall (a) deliver (or cause to be delivered) to each Noteholder
and 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 and (b)
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 Administrator and
the Indenture Trustee pursuant to this Section 5.03 at the request of the
Administrator or the Indenture Trustee, and in doing so shall rely entirely
upon, and shall have no liability for information or calculations provided by,
the Administrator or the Indenture Trustee.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall make available 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; provided, however, that in the event that any
monthly statement is no longer available, at the request of any
Certificateholder, the Indenture Trustee will deliver such monthly statement to
such Certificateholder.
ARTICLE VI
CONCERNING THE BANK
Section 6.01. Acceptance of Trusts and Duties. The Bank 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 Bank 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 Bank shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, gross negligence or bad faith or
grossly 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 Bank.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) The Bank 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;
17
(b) No provision of this Trust Agreement or any Basic Document shall
require the Bank 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 Bank shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under no circumstances shall the Bank 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 Bank 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 and
authenticated by the Bank and the Bank 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 Bank 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 otherwise and the Bank 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, the Servicer under the Servicing Agreement or the Seller or
the Originator under the Asset Purchase Agreement.
(f) The Bank 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 Bank security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Bank therein or thereby.
The right of the Bank to perform any discretionary act enumerated in this Trust
Agreement or in any Basic Document shall not be construed as a duty, and the
Bank shall not be answerable for other than its gross negligence or willful
misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Bank shall furnish to the
Noteholders and Certificateholders 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 Bank under the Basic Documents.
Section 6.03. Representations and Warranties. The Bank 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;
18
(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 Bank 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 Depositor, constitutes a valid, legal and binding obligation of the Bank,
enforceable against it in accordance with the terms hereof subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law;
(e) The 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 Bank 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
Bank or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(g) No litigation is pending or, to the best of the Bank's knowledge,
threatened against the Bank 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 Bank 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 Bank 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 Bank 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 Bank for any action
taken or omitted to be taken by it in good faith in reliance thereon.
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(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 Bank (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 Bank 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 Bank with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable
care and employed by it. The Bank shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such Persons 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 Bank 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.
Section 6.06. Bank Not Liable for Certificates or Related Documents. The
recitals contained herein and in the Certificates (other than the signatures of
the Bank on the Certificates) shall be taken as the statements of the Depositor,
and the Bank assumes no responsibility for the correctness thereof. The Bank
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 Bank on the Certificates) or the Notes, or of any Related
Documents. The Bank 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,
the Originator 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. Bank May Own Certificates and Notes. The Bank 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 Bank 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.
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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 the Bank or the Owner Trustee, as the case may be, contemplated
hereby.
Section 6.10. Liability of Certificate Registrar and Certificate Paying
Agent. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including but not limited to the provisions of
this Agreement permitting the Owner Trustee to resign, merge or consolidate,
shall inure as well to the Certificate Registrar and Certificate Paying Agent.
In addition, JPMorgan Chase Bank, N.A., in its capacities as Certificate
Registrar and Certificate Paying Agent hereunder shall be afforded all the
rights, protections, immunities and indemnities afforded to it in its capacity
as Indenture Trustee under the Indenture as if specifically set forth herein.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee Fees and Expenses. The Bank shall receive as
compensation for its services hereunder the Owner Trustee Fee (which, beginning
on the 13th Payment Date, will be paid pursuant to Section 8.02(i)(B) of the
Indenture), and the Bank shall be reimbursed pursuant to Section 8.02(xii) of
the Indenture for its reasonable expenses hereunder and under the Basic
Documents, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Owner Trustee may
reasonably employ in connection with the exercise and performance of its rights
and its duties hereunder and under the Basic Documents. Any amounts owing to the
Bank hereunder in excess of such amounts shall be paid pursuant to a separate
side agreement between the Owner Trustee and the Servicer.
Section 7.02. Indemnification. The Depositor shall indemnify, defend and
hold harmless the Bank, the Certificate Registrar 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
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Estate or the action or inaction of the Owner Trustee, the Certificate Registrar
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, the Certificate Registrar's or the Certificate Paying
Agent's willful misconduct, gross 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.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee, the Certificate Registrar 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, the Certificate Registrar's or the
Certificate Paying Agent's choice of legal counsel, if other than the legal
counsel retained by the Owner Trustee, the Certificate Registrar 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, the Certificate Registrar or the Certificate Paying Agent and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent, as applicable, 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, the Certificate Registrar or the
Certificate Paying Agent.
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
terminate 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, (ii) the distribution of all of the assets of the Owner Trust Estate,
in accordance with written instructions provided to the Owner Trustee by the
Majority Certificateholder, following the optional redemption of the Notes by
the Issuer pursuant to
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Section 8.07 of the Indenture; provided in each case that all amounts owing to
the Noteholders 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
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 Payment Agent therein specified.
The Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the 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
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 Depositor.
(d) Upon the winding up of the Trust and its termination, and notice
thereof by the Majority Certificateholder, 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 Statutory Trust Statute.
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Statutory Trust Statute; authorized to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent that has) a rating of at least Baa3 by Moody's or is otherwise
acceptable to the Rating Agencies. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days
prior written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee 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 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.
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 such
successor Owner Trustee, without any further act, deed or
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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 Noteholders and the Rating
Agencies.
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.
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
25
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.
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, the Certificate Registrar and the Certificate
Paying Agent and obtained by the Servicer to the effect that such amendment (i)
complies with the provisions of this Section and (ii) if Origen CMO Residual
Holding Company, LLC is not the 100% Certificateholder, would not cause the
Trust 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
26
be necessary to obtain the consent of any Holders, but the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be furnished with
(A) a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or 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, the
Certificate Registrar and the Certificate Paying Agent 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 the 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 of the Notes and Certificates and
(B) either (a) a letter from the Rating Agency that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any Note
or the rating then assigned to any Note or (b) the consent of Holders of
Certificates evidencing a majority Percentage Interest 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 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.
(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 and the
Indenture 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, (B) an Opinion of Counsel
obtained by the Servicer to the effect that such action will not cause the Trust
to be (i) treated as an association taxable as a corporation for federal income
tax and relevant state and local income and franchise tax purposes, (ii) taxable
as a "publicly traded partnership" as defined in Treasury Regulation section
1.7704-1 for federal income tax purposes and relevant state and local income or
franchise tax purposes or (iii) otherwise subject to entity level taxation for
federal income tax purposes and (C) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Notes or the rating then assigned to the Notes.
27
(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 and each of the
Rating Agencies. It shall not be necessary for the consent of Certificateholders
or the Indenture Trustee pursuant to this Section 10.01 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Trust Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(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.
(i) No amendment or agreement affecting the rights or duties of the Owner
Trustee, the Certificate Registrar or the Certificate Paying Agent may be
entered into without the consent of the affected party.
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 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.
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
28
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890; Attention: Corporate Trust Administration: to the Depositor at:
Origen Residential Securities, Inc., 27777 South Franklin Road, Suite 1700,
Southfield, Michigan 48034: to the Indenture Trustee, the Certificate Registrar
and the Certificate Paying Agent at the Corporate Trust Office of the Indenture
Trustee; to Moody's at: 99 Church Street, New York, New York 10007; Attention:
Residential Mortgage Monitoring Unit; to Standard & Poor's via electronic
delivery at Servicer_reports@sandp.com (or if electronic delivery is not
available at: 55 Water Street, New York, New York 10041, Attn: ABS Surveillance
Group); 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. 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.
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 Originator, the Seller,
29
the Owner Trustee, the Indenture Trustee, the Certificate Registrar, the
Certificate Paying Agent 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 understandings pertaining thereto.
30
IN WITNESS WHEREOF, the Depositor, the Certificate Registrar 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.
ORIGEN RESIDENTIAL SECURITIES, INC.,
as Depositor
By: /s/ W. Anderson Geater, Jr.
------------------------------------
Name: W. Anderson Geater, Jr.
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY
as Owner Trustee
By: /s/ Mary Kay Pupillo
------------------------------------
Name: Mary Kay Pupillo
Title: Assistant Vice President
JPMORGAN CHASE BANK, N.A.
as Certificate Registrar
and Certificate Paying Agent
By: /s/ Keith Richardson
------------------------------------
Name: Keith Richardson
Title: Attorney-In-Fact
[Signature Page to Origen 2005-B Trust Agreement]
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 INVESTMENT LETTER IN THE FORM OF EXHIBIT C TO
THE TRUST AGREEMENT, AN OPINION OF COUNSEL AND INVESTMENT LETTERS IN FORMS OF
EXHIBITS E AND F TO THE TRUST AGREEMENT, AS DESCRIBED IN THE TRUST AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE, SO LONG AS ANY NOTES ARE
OUTSTANDING, 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.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR HAS RECEIVED PROOF OF THE TRANSFEREE'S STATUS AS A REIT OR AS A
QUALIFIED REIT SUBSIDIARY, WITHIN THE MEANING OF SECTION 856(A) OR SECTION
856(I) OF THE CODE, RESPECTIVELY OR AS AN ENTITY THAT IS DISREGARDED FOR FEDERAL
INCOME TAX PURPOSES THAT IS WHOLLY OWNED BY A REIT OR A QUALIFIED REIT
SUBSIDIARY.
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 THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (II) IF THIS
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CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN SUBJECT TO
ERISA, OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE
ASSETS OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE
EFFECT THAT THE PURCHASE 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 TRUST, THE DEPOSITOR, THE
OWNER TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SUBSERVICER OR THE
BACKUP 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 TRUST, THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SERVICER, THE SUBSERVICER OR THE BACKUP SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, 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.
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Certificate No. __________ Certificate Percentage Interest of
this Certificate: ________%
Cut-off Date: December 1, 2005
Date of Trust Agreement: First Payment Date:
December 1, 2005 January 16, 2006
Servicer: Certificate Interest Rate:
Origen Servicing, Inc. Weighted Average Pass-Through Rate
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST 2005-B
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Contracts in Origen
Manufactured Housing Contract Trust 2005-B (the "Trust"), a Delaware statutory
trust formed by ORIGEN RESIDENTIAL SECURITIES, INC., 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 December
1, 2005, by and among the Depositor, Wilmington Trust Company, as owner trustee
(the "Owner Trustee", which term includes any successor entity under the Trust
Agreement) and JPMorgan Chase Bank, N.A., as certificate registrar and
certificate paying agent (as amended and supplemented from time to time, 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 Trust Certificates,
Series 2005-B (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 Contracts in the Origen Manufactured Housing
Contract Trust 2005-B. 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.
There will be distributed on the 15th day of each month or, if such 15th
day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on January 16, 2005, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding such Payment Date (the "Record Date"),
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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, dated as of December 1,
2005, between the Trust and JPMorgan Chase Bank, N.A., as Indenture Trustee (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, as
provided in Section 3.09 of the Trust Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
in such notice.
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 to the Certificate Registrar and
the Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or
A-4
the Depositor and which investment letter states that, among other things, such
transferee (1) 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 (2) 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 E to the Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit F to the Agreement, 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 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 Indenture
Trustee, the Certificate Paying Agent, 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
Person 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 Trust, the Depositor, the
Owner Trustee, the Certificate Registrar, the Servicer, the Subservicer or the
Backup 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 Trust, the Depositor, the Owner Trustee, the Certificate
Registrar, the Servicer, the Subservicer or the Backup Servicer. In lieu of such
Opinion of Counsel, a Person 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
shall be entitled to conclusively rely upon a representation (which, upon the
request of the Owner Trustee, shall be a written representation) from the
Depositor of the status of such transferee as an affiliate of the Depositor.
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
A-5
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 and relevant state and local
income and franchise tax purposes, (ii) taxable as a "publicly traded
partnership" as defined in Treasury Regulation section 1.7704-1 for federal
income tax purposes and relevant state and local income and franchise tax
purposes or (iii) otherwise subject to entity level taxation for federal income
tax purposes.
No transfer of this Certificate shall be made unless the Certificate
Registrar has received proof substantially in the form of Exhibit H of the Trust
Agreement of the Transferee's status as a "real estate investment trust" as
defined under Section 856(a) of the Code, a "qualified REIT subsidiary" under
Section 856(i) of the Code or an entity that is disregarded for federal income
tax purposes that is wholly owned by either a "real estate investment trust" or
a "qualified REIT subsidiary".
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-6
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
ORIGEN MANUFACTURED HOUSING CONTRACT
TRUST 2005-B
BY: WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Owner Trustee
Dated: May __, 2005 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-7
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Originator, the Seller, the Servicer, the Indenture Trustee, the
Certificate Paying Agent, the Certificate Registrar, 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 Contracts,
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 Origen CMO Residual Holding Company, LLC was not the
100% Certificateholder, would not cause the Trust to be subject to an entity
level tax. If the purpose of the amendment is to correct any mistake, eliminate
any inconsistency, cure any ambiguity or deal with any matter not covered, it
shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee shall be furnished with a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note. 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 either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note or (b) 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, as provided in the Trust Agreement, 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 JPMorgan Chase Bank, N.A.
A-8
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 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-9
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-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to _________________________________________________________ for the account of
____________________________________________, account number _________________,
or, if mailed by check, to ______________________________.
Applicable statements should be mailed to _____________________.
----------------------------------------
Signature of assignee or agent
(for authorization of wire
transfer only)
A-11
EXHIBIT B
CERTIFICATE OF TRUST OF
Origen Manufactured Housing Contract Trust 2005-B
THIS Certificate of Trust of Origen Manufactured Housing Contract Trust
2005-B (the "Trust"), dated May __, 2005, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
statutory trust under the Delaware Statutory Trust Act (12 Del. Code, Section
3801 et seq.).
1. Name. The name of the statutory trust formed hereby is Origen
Manufactured Housing Contract Trust 2005-B.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
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 May __, 2005
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 1933 Act.
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, 2004, among Origen Residential Securities, Inc., as
Depositor, Wilmington Trust Company, as Owner Trustee, and JPMorgan Chase Bank,
as Certificate Registrar and Certificate Paying Agent) pursuant to Section 3.05
of the Agreement and JPMorgan Chase Bank, 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.
D-1
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 Originator, the Indenture Trustee, the Owner Trustee, the Servicer, the
Subservicer, the Backup 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 understands
that registration of transfer of any Rule 144A Securities to any Plan, or to any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar, the Owner Trustee, the Servicer and the Depositor, to the effect that
the purchase and holding of the Rule 144A Securities by, on behalf of or with
"plan assets" of any Plan is permissible under applicable law, would not
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code, and would not subject the Trust, the Depositor, the Owner Trustee, the
Certificate Registrar, the Servicer, the Subservicer or the Backup Servicer to
any obligation or liability (including liabilities under ERISA or Section 4975
of the Code) in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trust, the Depositor,
D-2
the Owner Trustee, the Certificate Registrar, the Servicer, the Subservicer or
the Backup Servicer.
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:
------------------ ------------------
D-3
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $________________(1) in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
____ 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.
____ 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
- ----------
(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.
D-4
insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
____ SBIC. The Buyer is a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. The Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
____ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit
of its employees, or (b) employee benefit plans within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, but is not a
trust fund that includes as participants individual retirement accounts or
H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another 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.
D-5
Will the Buyer be purchasing the Rule 144A Securities only for
- ----- ----- the Buyer's own account?
Yes No
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will 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:
----------------------------------
D-6
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
___ The Buyer owned $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in the
aggregate $_____________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit Notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
D-7
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
----------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
----------------------------------
D-8
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.03 of the Trust Agreement, dated as of December 1, 2005
(the "Trust Agreement"), among Origen Residential Securities, Inc., as
Depositor, Wilmington Trust Company as Owner Trustee and JPMorgan Chase Bank,
N.A., as Certificate Registrar and Certificate Paying Agent, 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 Certificates, Series 2005-B
(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;
D-9
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is __________________; and
3. The Beneficial Owner's U.S. employer identification number
is _____________________
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the undersigned
certifies that this certificate has been made in reliance upon information
contained in:
___ an IRS Form W-9
___ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certificate
and to the best of my knowledge and belief it is true, correct and complete and
will further declare that I will inform the Trust of any change in the
information provided above, and, if applicable, I further declare that I have
the authority* to sign this document.
- -------------------------------------
Name
- -------------------------------------
Title (if applicable)
- -------------------------------------
Signature and Date
* Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
D-10
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Origen Manufactured Housing Contract Trust 2005-B Trust Certificates,
Series 2005-B (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 (the "Code"), 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 transferee of such Certificate has
E-1
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
E-2
EXHIBIT F
TRANSFEROR CERTIFICATE
Wilmington Trust Company as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Proposed Transfer of Trust Certificates, Origen Manufactured Housing
Contract Trust 2005-B
Gentlemen:
This certification is being made by ____________________ (the "Transferor")
in connection with the proposed Transfer to _____________________ (the
"Transferee") of a trust certificate (the "Trust Certificate") representing ___%
fractional undivided interest in Origen Manufactured Housing Contract Trust
2005-B (the "Trust") created pursuant to a Trust Agreement, dated as of December
1, 2005 (the "Trust Agreement") among Origen Residential Securities, Inc. (the
"Company"), Wilmington Trust Company, as Owner Trustee (the "Owner Trustee") and
JPMorgan Chase Bank, N.A., as certificate registrar and certificate paying agent
(the "Certificate Registrar"). Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferor
hereby certifies, represents and warrants to, and covenants with, the Company,
the Owner Trustee and the Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Trust Certificate, any
interest in any Trust Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Trust Certificate, any interest in any
Trust Certificate or any other similar security from any person in any manner,
(c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar security
with any person in any manner, (d) has made any general solicitation by means of
general advertising or in any other manner, or (e) has taken any other action,
that (as to any of (a) through (e) above) would constitute a distribution of the
Trust Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Trust Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferor will not act in any manner set
forth in the foregoing sentence with respect to any Trust Certificate. The
Transferor has not and will not sell or otherwise transfer any of the Trust
Certificates, except in compliance with the provisions of the Trust Agreement.
F-1
Date:
--------------------- ----------------------------------------
Name of Transferor
----------------------------------------
Signature
----------------------------------------
Name
----------------------------------------
Title
F-2
EXHIBIT G
[DATE]
Wilmington Trust Company as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Proposed Transfer of Trust Certificates, Origen Manufactured Housing
Contract Trust 2005-B (the "Certificates")
Gentlemen:
This certification is being made by (the "Transferee") in connection with
the proposed Transfer by (the "Transferor") of a trust certificate (the "Trust
Certificate") representing __% fractional undivided interest in Origen
Manufactured Housing Contract Trust 2005-B (the "Trust") created pursuant to a
Trust Agreement, dated as of December 1, 2005 (the "Trust Agreement"), among
Origen Residential Securities, Inc. (the "Company"), Wilmington Trust Company,
as Owner Trustee (the "Owner Trustee") and JPMorgan Chase Bank, N.A., as
certificate registrar and certificate paying agent (the "Certificate
Registrar"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferee hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferee is not any employee benefit plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the Internal Revenue Code of 1986 (the "Code"), a Person acting, directly
or indirectly, on behalf of any such plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. Section 2510.3-101;
or
___ b. The Transferee is an employee benefit plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the Internal Revenue Code of 1986 (the "Code"), a Person acting, directly
or indirectly, on behalf of any such plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. Section 2510.3-101
and will provide the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer with an Opinion of Counsel, satisfactory to the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicer,
to the effect that the purchase and holding of a Certificate by or on
behalf of the Transferee is permissible under applicable
G-1
law, will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable provisions
of any subsequent enactments) and will not subject the Trust, the
Depositor, the Owner Trustee, the Certificate Registrar, the Servicer, the
Subservicer or the Backup Servicer to any obligation or liability
(including 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 Trust, the Depositor, the Owner Trustee, the
Certificate Registrar, the Servicer, the Subservicer or the Backup
Servicer; and
(ii) the Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and
407 of ERISA and Section 4975 of the Code and understands that each of the
parties to which this certification is made is relying and will continue to
rely on the statements made in this paragraph.
Very truly yours,
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-2
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
Wilmington Trust Company as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Proposed Transfer of Trust Certificates, Origen Manufactured Housing
Contract Trust 2005-B
Gentlemen:
This certification is being made by ____________________ (the "Transferee")
in connection with the proposed Transfer of a trust certificate (the "Trust
Certificate") representing ___% fractional undivided interest in Origen
Manufactured Housing Contract Trust 2005-B (the "Trust") created pursuant to a
Trust Agreement, dated as of December 1, 2005 (the "Trust Agreement") among
Origen Residential Securities, Inc. (the "Company"), Wilmington Trust Company,
as Owner Trustee (the "Owner Trustee") and JPMorgan Chase Bank, N.A., as
certificate registrar and certificate paying agent (the "Certificate
Registrar"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferee hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
The Transferee is a REIT or a Qualified REIT Subsidiary within the meaning
of Section 856(a) or Section 856(i) of the Code, respectively or is an entity
that is disregarded for federal income tax purposes that is wholly owned by a
REIT or qualified REIT subsidiary and the Transferee will not transfer the Trust
Certificate to any person that does not certify, substantially in the form of
this Transferee Certificate, that it is a REIT or Qualified REIT Subsidiary
within the meaning of Section 856(a) and Section 856(i) of the Code,
respectively or is an entity that is disregarded for federal income tax purposes
that is wholly owned by a REIT or qualified REIT subsidiary.
H-1
Date:
---------------------- ----------------------------------------
Name of Transferor
----------------------------------------
Signature
----------------------------------------
Name
----------------------------------------
Title
H-2