Exhibit 4.2
XXXXXX XXXXXXX ABS CAPITAL I, INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
-----------------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of July 1, 2000
------------------------------------------
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1
(REMIC TRUST)
TABLE OF CONTENTS
ARTICLE I Definitions..................................................1
SECTION 1.01 Definitions..........................................1
SECTION 1.02 Other Definitional Provisions........................1
ARTICLE II Organization................................................2
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 [Reserved]...........................................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 Investment Company...................................5
ARTICLE III Conveyance of the Mortgage Loans; Certificates.............5
SECTION 3.01 Conveyance of the Mortgage Loans.....................5
SECTION 3.02 Initial Ownership....................................5
SECTION 3.03 The Certificates.....................................5
SECTION 3.04 Authentication of Certificates.......................6
SECTION 3.05 Registration of and Limitations on Transfer and
Exchange of Certificates.............................6
SECTION 3.06 Mutilated, Destroyed, Lost or Stolen Certificates....8
SECTION 3.07 Persons Deemed Certificateholders....................9
SECTION 3.08 Access to List of Certificateholders' Names and
Addresses............................................9
SECTION 3.09 Maintenance of Office or Agency......................9
ARTICLE IV Authority and Duties of Owner Trustee.......................9
SECTION 4.01 General Authority....................................9
SECTION 4.02 General Duties......................................10
SECTION 4.03 Action upon Instruction.............................10
SECTION 4.04 No Duties Except as Specified under this Trust
Agreement, Transaction Documents or in
Instructions........................................10
SECTION 4.05 Restrictions........................................11
SECTION 4.06 Prior Notice to Certificateholders with Respect
to Certain Matters..................................11
SECTION 4.07 Action by Certificateholders with Respect to
Certain Matters.....................................12
SECTION 4.08 Action by Certificateholders with Respect to
Bankruptcy..........................................13
SECTION 4.09 Restrictions on Certificateholders' Power...........13
SECTION 4.10 Majority Control....................................13
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ARTICLE V Application of Trust Funds..................................13
SECTION 5.01 Distributions.......................................13
SECTION 5.02 [Reserved]..........................................14
SECTION 5.03 Tax Returns.........................................14
ARTICLE VI Concerning the Owner Trustee...............................14
SECTION 6.01 Acceptance of Trusts and Duties.....................14
SECTION 6.02 Furnishing of Documents.............................15
SECTION 6.03 Representations and Warranties......................15
SECTION 6.04 Reliance; Advice of Counsel.........................16
SECTION 6.05 Not Acting in Individual Capacity...................17
SECTION 6.06 Owner Trustee Not Liable for Certificates or
Related Documents...................................17
SECTION 6.07 Owner Trustee May Own Certificates and Notes........17
SECTION 6.08 Payments from Owner Trust Estate....................17
SECTION 6.09 Doing Business in Other Jurisdictions...............18
SECTION 6.10 Liability of Certificate Registrar..................18
ARTICLE VII Compensation of Owner Trustee.............................18
SECTION 7.01 Owner Trustee's Fees and Expenses...................18
SECTION 7.02 Indemnification.....................................18
ARTICLE VIII Termination of Trust Agreement...........................19
SECTION 8.01 Termination of Trust Agreement......................19
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees.....20
SECTION 9.01 Eligibility Requirements for Owner Trustee..........20
SECTION 9.02 Resignation or Removal of Owner Trustee.............20
SECTION 9.03 Successor Owner Trustee.............................21
SECTION 9.04 Merger or Consolidation of Owner Trustee............21
SECTION 9.05 Appointment of Co-Trustee or Separate Trustee.......21
ARTICLE X Miscellaneous...............................................23
SECTION 10.01 Amendments..........................................23
SECTION 10.02 No Legal Title to Owner Trust Estate................24
SECTION 10.03 Limitations on Rights of Others.....................24
SECTION 10.04 Notices.............................................24
SECTION 10.05 Severability........................................25
SECTION 10.06 Separate Counterparts...............................25
SECTION 10.07 Successors and Assigns..............................25
SECTION 10.08 No Petition.........................................25
SECTION 10.09 No Recourse.........................................25
SECTION 10.10 Headings............................................25
SECTION 10.11 GOVERNING LAW.......................................26
SECTION 10.12 Integration.........................................26
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EXHIBITS
Exhibit A-1 Form of Class R-1 Certificate
Exhibit A-2 Form of Class R-2 Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Rule 144A Investment Representation
Exhibit D Form of Investor Representation Letter
Exhibit E Form of Depositor Representation Letter
Exhibit F Form of Certificate of Non-Foreign Status
Exhibit G Form of ERISA Representation Letter
Exhibit H form of Certificate Tax Matters Transfer Affidavit
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of July 1, 2000
(as amended from time to time, this "Trust Agreement"), between Xxxxxx Xxxxxxx
ABS Capital I, Inc., as depositor (the "Depositor"), and Wilmington Trust
Company, a Delaware banking corporation, as owner trustee (the "Owner Trustee").
WITNESSETH THAT:
WHEREAS, the Depositor and the Owner Trustee did execute that
certain Trust Agreement (the "Original Trust Agreement") on July 21, 2000;
WHEREAS; the Depositor and the Owner Trustee now wish to amend
and restate the Original Trust Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor and the Owner Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Sale and Servicing Agreement, dated as of July 1,
2000 (the "Sale and Servicing Agreement"), among the Depositor, the Trust,
Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1N, Long Beach Mortgage Company, as
master servicer, and Bankers Trust Company Of California, N.A., as indenture
trustee (the "Indenture Trutsee") and if not defined therein, in the Indenture,
dated as of July 1, 2000 (the "Indenture"), between the Trust and the Indenture
Trustee. 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
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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 "Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1", in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust, and xxx and be sued on behalf of the
Trust.
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:
(a) to execute, issue and deliver the Class A Notes, the Class M-1
Notes, the Class M-2 Notes, the Class B-1 Notes, the Class C Notes and the
Class P Notes (collectively, the "Notes") pursuant to the Indenture, and
the Class R-1 Certificates and the Class R-2 Certificates (collectively,
the "Certificates") pursuant to this Trust Agreement;
(b) to pay the organizational, startup and transactional expenses of
the Trust;
(c) to hold, assign, grant, transfer, pledge and convey the Mortgage
Loans pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to Section 5.01 hereof, any portion of the
Mortgage Loans released from the Lien of, and remitted to the Trust
pursuant to, the Indenture and the Sale and Servicing Agreement;
(d) to purchase and hold the Mortgage Loans and the other trust
property (the "Owner Trust Estate") pursuant to the Sale and Servicing
Agreement;
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(e) to enter into, execute, deliver and perform its obligations
under the Transaction Documents to which it is to be a party and to enter
into and to consummate the transactions contemplated thereby;
(f) if directed in writing by holders of Certificates representing
more than 50% of the beneficial interests in the Trust, to sell the Owner
Trust Estate subsequent to the satisfaction and discharge of the
Indenture, all for the benefit of the holders of the Certificates;
(g) to make one or more REMIC elections for federal income tax
purposes with respect to the Owner Trust Estate;
(h) to engage in those activities, including entering into,
executing and delivering agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or
connected therewith; and
(i) subject to compliance with the Transaction Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions to
the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing to the extent limited, or other than as expressly required or
authorized by the terms of this Trust Agreement or the other Transaction
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.
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 Transaction Documents. It is
the intention of the parties hereto that the Trust constitute a "business trust"
under the Business Trust Statute and that this Trust Agreement constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Trust shall not be treated as (i) an association subject
separately to taxation as a corporation, (ii) a "publicly traded partnership" as
defined in Treasury Regulation Section 1.77041 or (iii) a "taxable mortgage
pool" as defined in Section 7701(i) of the Code but instead shall elect to be
treated as a REMIC, and that the Notes shall be REMIC Regular Interests and the
provisions of this Trust Agreement shall be interpreted to further this
intention. Except as otherwise provided in this Trust Agreement, the rights of
the Certificateholders will be those of holders of a REMIC Residual Interest and
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beneficial owners of the Trust. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee is hereby authorized to file a certificate of trust for the
Trust pursuant to Section 3810 of the Business Trust Statute.
SECTION 2.07 [Reserved].
SECTION 2.08 Title to Trust Property. Except with respect to the
Mortgage Loans, which will be assigned of record to the Indenture Trustee
pursuant to the Indenture, legal title to the Owner Trust Estate shall be vested
at all times in the Trust as a separate legal entity except where applicable law
in any jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case
may be.
SECTION 2.09 Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the States of Delaware and
California. 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. Payments will be received by the
Trust only in the States of Delaware, California or New York, and payments will
be made by the Trust only from the States of Delaware, California or New York.
The only office of the Trust will be at the Corporate Trust Office in the State
of Delaware.
SECTION 2.10 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) 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.
(b) 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.
(c) 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.
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(d) The Trust Agreement has been duly executed and delivered by the
Depositor by all necessary corporate action and the Trust Agreement is
enforceable against the Depositor in accordance with its terms.
(e) 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 Transaction 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.
(f) 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 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.
ARTICLE III
CONVEYANCE OF THE MORTGAGE LOANS; CERTIFICATES
SECTION 3.01 Conveyance of the Mortgage Loans. Pursuant to the Sale
and Servicing Agreement, on the Closing Date the Depositor will transfer,
without recourse, the Mortgage Loans to the Trust.
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
issuance of the Certificates, the Depositor shall be the sole beneficial owner
of the Trust. Upon the issuance of the Certificates, the Certificateholders
shall be the sole beneficial owners of the Trust.
SECTION 3.03 The Certificates. The Class R-1 Certificates shall be
issued substantially in the form of Exhibit A-1 hereto and the Class R-2
Certificates shall be issued substantially in the form of Exhibit A-2 hereto.
The Certificates shall be issued in the form of one or more Certificates each
representing not less than a 10% Percentage Interest in such Class. The
Certificates shall initially be registered in the name of the Depositor. 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 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
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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 in the
name and 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-1 or A-2, as the case may be,
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. Wilmington Trust Company shall be the initial Certificate Registrar.
If the Certificate Registrar resigns or is removed, the Owner Trustee shall
appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with
respect to the 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 Certificateholder, 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
Certificateholder or such Certificateholder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or exchange
shall be canceled 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.
Each holder of a Certificate by his acceptance thereof, shall be
deemed for all purposes to have consented to the provisions of this Section
3.05. 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 and deliver to the Owner Trustee
and Certificate Registrar, (a) either (i) 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 Master Servicer or the Depositor, and which investment letter
states that, among other things, such transferee (A) is a "qualified
institutional buyer" as defined under Rule 144A, acting for its own account or
the accounts of other "qualified institutional buyers" as defined under Rule
144A and (B) is aware that the proposed Depositor 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 or the Depositor and (B) the transferee executes a representation
letter, substantially in the form of Exhibit D hereto, and the Depositor
executes a representation letter, substantially in the form of Exhibit E hereto,
each acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor and (b) the Certificate of
Non-Foreign Status (in substantially the form attached hereto as Exhibit F)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the Master
Servicer or the Depositor. If the Certificateholder is unable to provide a
Certificate of Non-Foreign Status, the Certificateholder must provide an Opinion
of Counsel as described above in this paragraph. The Certificateholder desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trust,
the Owner Trustee, in its individual capacity, the Certificate Registrar 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 or otherwise is
not made in accordance with this Trust Agreement.
No transfer of a Certificate or any interest therein shall be made
to any employee benefit plan or certain other retirement plans and arrangements,
including, without limitation, individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA, or Section 4975 of the Code (collectively, "Plan"),
any Person acting, directly or indirectly on behalf of any such Plan or any
Person
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acquiring such Certificates with assets of a Plan ("Plan Assets"). Any
transferee of Certificates must provide a certification in the form of Exhibit G
to this Trust Agreement, which the Owner Trustee, the Certificate Registrar and
the Depositor may rely upon without further inquiry or investigation. No
certification will be required in connection with the initial transfer or pledge
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 rely conclusively upon a
written representation from the Depositor of the status of such transferee as an
affiliate of the Depositor.
No sale or other transfer of record or beneficial ownership of a
Certificate (whether pursuant to a purchase, a transfer resulting from a default
under a secured lending agreement or otherwise) shall be made to a Disqualified
Organization or an agent of a Disqualified Organization or to a non-U.S. Person.
The transfer, sale or other disposition of a Certificate (whether pursuant to a
purchase, a transfer resulting from a default under a secured lending agreement
or otherwise) to a Disqualified Organization shall be deemed to be of no legal
force or effect whatsoever and such transferee shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Certificate. Furthermore, in no event shall the
Owner Trustee accept surrender for transfer, registration of transfer, or
register the transfer, of any Certificate nor authenticate and make available
any new Certificate unless the Owner Trustee has received affidavits from the
proposed transferee in the forms attached hereto as Exhibits F and I. Each
holder of a Certificate by his acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this Section 3.05.
Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be responsible for ascertaining whether any transfer complies
with the registration requirements from the Securities Act of 1934, as amended,
applicable state securities law or the Investment Company Act; provided,
however, that if a certificate is specifically required to be delivered to the
Owner Trustee by the transferor or the transferee of a Certificate, the Owner
Trustee shall be required to examine the same to determine whether it conforms
to the requirements on this Trust Agreement and shall promptly notify the party
delivering the same if such certificate does not so conform. The Owner Trustee
will not permit the transfer of any Certificate unless it shall have received
the deliveries contemplated by this Trust Agreement.
SECTION 3.06 Mutilated, Destroyed, Lost or Stolen Certificates. If
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 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 in
the name and 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
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Registrar (including fees and expenses of counsel) and any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 3.06 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.07 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Trust, the Owner
Trustee or the Certificate Registrar shall 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 Note 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 or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, a list, in such form as the Depositor or the Owner Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Certificateholder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Trust, the Depositor, the Certificate Registrar or the Owner Trustee
in its individual capacity 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 in Wilmington, Delaware, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Transaction Documents
may be served. The Owner Trustee initially designates the Corporate Trust Office
as its office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 4.01 General Authority. The Owner Trustee is authorized,
empowered and directed to execute and deliver, on behalf of the Trust, each of
the Transaction Documents to which the Trust is or is to be a party and each
certificate or other document attached as an exhibit to or contemplated by the
Transaction Documents to which the Trust is or is to be a party and any
amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee, in the name and on behalf of the Trust, shall have
the power and authority, and hereby is authorized and empowered, but shall not
be obligated, except as otherwise provided in this Trust Agreement, to take all
actions required of the Trust pursuant to the Transaction Documents.
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SECTION 4.02 General Duties. (a) It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of the responsibilities
expressly required to be performed by it pursuant to the terms of this Trust
Agreement, subject to the Transaction Documents and in accordance with the
provisions of this Trust Agreement.
(b) If an Authorized Officer of the Owner Trustee shall have actual
knowledge of the occurrence of a Master Servicer Event of Default under the Sale
and Servicing Agreement or an Event of Default under the Indenture, the Owner
Trustee shall promptly notify the Indenture Trustee and the Rating Agencies
thereof in accordance with Section 11.05 of the Sale and Servicing Agreement.
SECTION 4.03 Action upon Instruction. Subject to this Article IV and
in accordance with the terms of the Transaction 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 this Article IV.
Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Transaction 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 is contrary to the terms hereof or of any Transaction Document
shall cause the Trust to fail to continue to qualify as a REMIC or is otherwise
contrary to law.
Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement or
under any Transaction Document, or in the event that the Owner Trustee is unsure
as to the application of any provision of this Trust Agreement or any
Transaction 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 Trust Agreement or the Transaction Documents, as it shall
deem to be in the best interests of the Certificateholders and the Noteholders,
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 this Trust
Agreement, Transaction Documents or in Instructions. Notwithstanding any other
provision herein or elsewhere, 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, this
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Trust Agreement or any document contemplated hereby to which the Trust or the
Owner Trustee is a party, except as expressly provided (a) in this Trust
Agreement, (b) in the Transaction Documents and (c) in 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
Transaction Document against the Owner Trustee. The Owner Trustee shall have no
responsibility (i) to file any financing or continuation statement in any public
office at any time, (ii) to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder, (iii) to record this Trust
Agreement or any Transaction Document or (iv) to prepare or file any Securities
and Exchange Commission filing for the Trust. 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. The Owner Trustee or the Depositor (or an
Affiliate thereof) shall not take any action (i) that is inconsistent with the
purposes of the Trust set forth in Section 2.03 or (ii) 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 failing to continue to be
treated as a REMIC for federal income tax purposes. The Certificateholders shall
not direct the Owner Trustee to take action that would violate the provisions of
this Section 4.05.
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 (i) 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 cause the
Trust to fail to continue to qualify as a REMIC and (ii) such conveyance or
transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
The Trust shall not commingle its assets with those of any other
entity. The Trust shall maintain its financial and accounting books and records
separate from those of any other entity. Except as expressly set forth herein,
the Trust shall pay its indebtedness, operating expenses and liabilities from
its own funds, and the Trust shall not pay the indebtedness, operating expenses
and liabilities of any other entity. The Trust shall maintain appropriate
minutes or other records of all appropriate actions and shall maintain its
office separate from the offices of the Depositor.
SECTION 4.06 Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Owner Trustee shall
not take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of cash
distributions due and owing under the Mortgage Loans) and the compromise
of any action, claim or lawsuit brought
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by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing
under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(c) the amendment or other change to this Trust Agreement or any
Transaction Document in circumstances where such amendment materially
adversely affects the interest of the Certificateholders;
(d) the appointment pursuant to the Indenture of a successor Note
Registrar, Note Paying Agent, Indenture Trustee or, pursuant to this Trust
Agreement, of a successor Certificate Registrar or the consent to the
assignment by the Note Registrar, Note Paying Agent, Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this Trust
Agreement, as applicable;
(e) the consent to the calling or waiver of any default under any
Transaction Document;
(f) the consent to the assignment by the Indenture Trustee or Master
Servicer of their respective obligations under any Transaction Document;
(g) except as provided in Article VIII hereof, dissolve, terminate
or liquidate the Trust in whole or in part;
(h) merge or consolidate the Trust with or into any other entity, or
convey or transfer all or substantially all of the Trust's assets to any
other entity;
(i) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Trust Agreement;
(j) perform any act that conflicts with any other Transaction
Document;
(k) perform any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(l) confess a judgment against the Trust;
(m) possess Trust assets or assign the Trust's right to property for
other than a Trust purpose;
(n) cause the Trust to lend any funds to any entity; or
(o) change the Trust's purpose and powers from those enumerated in
this Trust Agreement.
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,
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(a) to remove or replace the Master Servicer under the Sale and Servicing
Agreement pursuant to Section 5.02 thereof or to remove or replace the Indenture
Trustee under the Indenture pursuant to Section 6.08 thereof, (b) except as
expressly provided in the Transaction Documents, sell the Mortgage Loans after
the termination of the Indenture, (c) institute proceedings to have the Trust
declared or adjudicated to be bankrupt or insolvent, (d) consent to the
institution of bankruptcy or insolvency proceedings against the Trust, (e) file
a petition or consent to a petition seeking reorganization or relief on behalf
of the Trust under any applicable federal or state law relating to bankruptcy,
(f) consent to the appointment of a receiver, liquidate, assignee, trustee,
sequestrate (or any similar official) of the Trust or a substantial portion of
the property of the Trust, (g) make any assignment for the benefit of the
Trust's creditors, (h) cause the Trust to admit in writing its inability to pay
its debts generally as they become due, (i) take any action or cause the Trust
to take any action, in furtherance of any of the foregoing clauses (c) through
(i) (any of such clauses, a "Bankruptcy Action"). So long as the Indenture
remains in effect, no Certificateholder shall have the power to take, and shall
not take, any Bankruptcy Action with respect to the Trust or the Depositor or
direct the Owner Trustee to take any Bankruptcy Action with respect to the Trust
or the Depositor. 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 and one day 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
Transaction Documents or would be contrary to Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.10 Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Trust
Agreement may be taken by the holders of Certificates evidencing not less than a
majority of the outstanding Certificate Percentage Interests 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 of the
outstanding Certificate Percentage Interests at the time of the delivery of such
notice.
ARTICLE V
APPLICATION OF TRUST FUNDS
SECTION 5.01 Distributions. Distributions to the Certificateholders
will be made as provided in the Sale and Servicing Agreement.
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SECTION 5.02 [Reserved].
SECTION 5.03 Tax Returns. Pursuant to the Sale and Servicing
Agreement, the Indenture Trustee shall (a) maintain (or cause to be maintained)
the books of the Trust on a calendar year basis using the accrual method of
accounting, (b) deliver (or cause to be delivered) to each Certificateholder as
may be required by the Code and applicable Treasury Regulations, such
information as may be required to enable each Certificateholder to prepare its
federal and state income tax returns, (c) prepare and file or cause to be
prepared and filed such tax returns relating to the Trust as may be required by
the Code and applicable Treasury Regulations (including timely making one or
more elections to treat the Trust as a REMIC for federal income tax purposes and
any other such elections as may from time to time be required or appropriate
under any applicable state or federal statutes, rules or regulations) and the
Indenture Trustee shall 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.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.01 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Transaction
Documents and this Trust Agreement. The Owner Trustee in its individual capacity
shall not personally be answerable or accountable hereunder or under any
Transaction Document under any circumstances, except to the Trust or the
Certificateholders (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 Owner Trustee. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Certificateholders permitted under this Trust Agreement;
(b) no provision of this Trust Agreement or any Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur
in its individual capacity any financial liability in the performance of
any of its rights, duties or powers hereunder or under any Transaction
Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it in its individual
capacity;
(c) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
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(d) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Trust Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for or
in respect of the validity or sufficiency of the Transaction Documents,
the Notes, the Certificates, other than the certificate of authentication
on the Certificates, if executed by the Owner Trustee, and the Owner
Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the Transaction
Documents;
(e) the Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee, Certificate Registrar, the Depositor,
the Master Servicer or any other party under any of the Transaction
Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Trust
Agreement or the Transaction Documents that are required to be performed
by the Indenture Trustee under the Indenture, the Depositor under this
Trust Agreement or the Master Servicer under the Sale and Servicing
Agreement; and
(f) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it or duties imposed by this Trust
Agreement, or to institute, conduct or defend any litigation under this
Trust Agreement or otherwise or in relation to this Trust Agreement or any
Transaction Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Transaction Document
shall not be construed as a duty.
SECTION 6.02 Furnishing of Documents. The Owner Trustee shall
furnish to the 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 Owner Trustee under the Transaction Documents.
SECTION 6.03 Representations and Warranties. The Owner Trustee, in
its individual capacity, hereby represents and warrants to the Depositor, for
the benefit of it and the Certificateholders that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust
Agreement will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Trust Agreement on its behalf;
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(c) 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, other than the filing of the certificate of trust with the
Office of the Secretary of State of the State of Delaware;
(d) 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 Delaware or federal law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or
any judgment or order binding on it, or constitute any default under its
charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound;
(e) This Trust Agreement, assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding
obligation of the Owner Trustee, enforceable against it in accordance with
the terms hereof subject to applicable bankruptcy, 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;
(f) The Owner Trustee is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Owner Trustee or its properties
or might have consequences that would materially adversely affect its
performance hereunder; and
(g) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under
this Trust Agreement.
SECTION 6.04 Reliance; Advice of Counsel. The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, Note, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Transaction Documents, the Owner
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Trustee may act directly or through its agents, attorneys, custodians or
nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care and may consult
with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable in its
individual capacity for anything done, suffered or omitted in good faith by it
in accordance with the written opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Trust Agreement or
any Transaction Document.
SECTION 6.05 Not Acting in Individual Capacity. Except as provided
in this Article VI, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Trust Agreement or any Transaction
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
SECTION 6.06 Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than the
signatures of the Owner Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any Transaction Document or
of the Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any other Transaction Documents. The Owner
Trustee shall at no time have any responsibility or liability with respect to
the sufficiency of the Owner Trust Estate or its ability to generate the
payments to be distributed to Certificateholders under this Trust Agreement or
the Noteholders under the Indenture, including compliance by the Depositor or
the Originator with any warranty or representation made under any Transaction
Document or in any related document or the accuracy of any such warranty or
representation, or any action of the Certificate Registrar or the Indenture
Trustee taken in the name of the Owner Trustee.
SECTION 6.07 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may, subject to Section 3.05,
become the owner or pledge of Certificates or Notes and may deal with the
Depositor, the Certificate Registrar, the Master Servicer 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 Transaction
Documents to which the Owner Trustee is a party shall be made only from the
income and proceeds of the Owner Trust Estate or from other amounts required to
be provided by the Certificateholders and only to the extent that the Owner
Trustee 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
Transaction 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 Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
SECTION 6.10 Liability of Certificate Registrar. All provisions
affording protection to or limiting the liability of the Owner Trustee shall
inure as well to the Certificate Registrar.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
SECTION 7.01 Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder the Owner Trustee's
Fees and reimbursement for its reasonable expenses hereunder and under the
Transaction Documents, pursuant to the Sale and Servicing Agreement.
SECTION 7.02 Indemnification. The Depositor shall indemnify, defend
and hold harmless Wilmington Trust Company and its successors, assigns, agents
officers, employees, directors, 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 the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Trust Agreement,
the Transaction Documents, the Owner Trust Estate, the administration of the
Owner Trust Estate or the action or inaction of the Owner Trustee hereunder;
provided, that:
(a) 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 willful misconduct, gross negligence or bad faith or
as a result of the inaccuracy of a representation or warranty contained in
Section 6.03 expressly made by the Owner Trustee;
(b) 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;
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(c) while maintaining control over its own defense, the Depositor
shall consult with the Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust 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 7.02 shall survive the
resignation or removal of the Owner Trustee 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 choice of
legal counsel, if other than the legal counsel retained by the Owner Trustee 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 and
with the consent of the Owner Trustee 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.
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, and the Owner Trustee at the written director of the
Certificateholder shall cause the Trust to execute and file a certificate of
cancellation upon the earliest of the final distribution of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture and this Trust Agreement or the distribution of all of the assets
of the Owner Trust Estate, in accordance with written instructions provided to
the Owner Trustee by holders of a majority of the Certificates, following the
optional redemption of the Notes by the Issuer pursuant to Section 10.01 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;
and provided, further, that the Owner Trustee shall have obtained an opinion of
counsel to the effect that the termination is a "qualified liquidation" under
Section 860F of the Internal Revenue Code of 1986. 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 this Trust
Agreement or the Trust.
(c) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the
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Secretary of State in accordance with the provisions of Section 3810(d) of the
Business Trust Statute.
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 reasonably acceptable to the
Depositor satisfying the provisions of Section 3807(a) of the Business Trust
Statute; authorized to exercise corporate trust powers; having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authorities; and having (or having a parent that
has) a rating of at least "Baa3" or "BBB-" or is otherwise acceptable to Xxxxx'x
and Fitch. 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 9.01, 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 Resignation or Removal 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 with the consent of the Depositor which will not be unreasonably
withheld, by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the successor
Owner Trustee. 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 reasonably
acceptable to the Certificateholders.
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 9.02
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 Master Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
20
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 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. Upon the written request of such successor 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 Noteholders and the Rating Agencies.
Any successor Owner Trustee appointed hereunder shall promptly file
a Certificate of Amendment with the Delaware Secretary of State identifying the
name and principal place of business of such successor Owner Trustee in the
State of Delaware.
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 provide written 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 authority to 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
21
shall be required pursuant to Section 9.03, except that notice to, and the
consent of, the Depositor shall be required for appointment of a co-trustee.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) no trustee under this Trust Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) the Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article IX. 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.
22
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments. (a) This Trust Agreement may be amended
from time to time by the parties hereto (with prior notice to the Rating
Agencies) as specified in this Section 10.01; provided, that any amendment,
except as provided in subparagraph (e) below, shall be accompanied by an Opinion
of Counsel addressed to the Owner Trustee and obtained by the Master Servicer to
the effect that such amendment complies with the provisions of this Section and
would not cause the Trust to fail to qualify as a REMIC.
(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 Certificateholders), it shall not
be necessary to obtain the consent of any Certificateholder, but the Owner
Trustee shall be furnished with (i) a letter from each of the Rating Agencies
that the amendment will not result in the downgrading or withdrawal of the
rating then assigned to any Note or (ii) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Certificateholders.
(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 Certificateholder, but the
Owner Trustee shall be furnished with an Opinion of Counsel obtained by the
Depositor that such amendment is necessary or helpful to prevent the imposition
of such taxes and is not materially adverse to any Certificateholder.
(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 (i) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Certificateholders and (ii) either (A) a
letter from each of the Rating Agencies that the amendment will not result in
the downgrading or withdrawal of the rating then assigned to any Note or (B) the
consent of holders of Certificates evidencing a majority of the Certificate
Percentage Interest; provided, however, that no such amendment shall (1) 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 (2) 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) Promptly after the execution of any such amendment or consent,
the Depositor shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and each of the Rating Agencies.
It shall not be necessary for the consent
23
of Certificateholders 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 Transaction 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.
(g) 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
Transaction Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
(h) 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.
(i) The Owner Trustee may, but shall not be required to, execute any
amendment which adversely affects its rights, duties and immunities under this
Trust Agreement.
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. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial interests 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 beneficial
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 Indemnified Parties, 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. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and other communications shall be in
writing and shall be deemed given upon receipt, to the Owner Trustee at:
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000 Attention: Corporate Trust Administration; to
the Depositor at: Xxxxxx Xxxxxxx ABS Capital I, Inc. 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel, to the Indenture Trustee at Bankers
Trust Company of California, N.A., 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: Corporate Trust Department; to Xxxxx'x at: 00
Xxxxxx Xxxxxx, Xxx
00
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Monitoring Unit; to Fitch
at Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
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 and 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 Transaction
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 Master Servicer, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Trust Agreement, the Certificates or the Transaction
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.
25
SECTION 10.11 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.12 Integration. This Trust Agreement constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements and understanding pertaining thereto.
[Remainder of Page Intentionally Left Blank]
26
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
WILMINGTON TRUST COMPANY, as Owner Trustee
By: /S/
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
XXXXXX XXXXXXX ABS CAPITAL I, INC., as
Depositor
By: /S/
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Acknowledged and Agreed:
WILMINGTON TRUST COMPANY,
as Certificate Registrar
By: /S/
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
[Signature Page for Trust Agreement]
EXHIBIT A-1
FORM OF CLASS R-1 CERTIFICATE
CLASS R-1 CERTIFICATE
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 A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS
CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING COMPLIANCE
WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS SET FORTH IN THE TRUST AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS
DEFINED IN SECTION 860E(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"). SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN CERTAIN TAXABLE
INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR
PROVIDING THEREOF SERVICE TO PERSONS IN RURAL AREAS, OR ANY ORGANIZATION (OTHER
THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME. NO TRANSFER OF
THIS CERTIFICATE WILL BE REGISTERED BY THE OWNER TRUSTEE UNLESS THE PROPOSED
TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER THINGS, THAT THE
PROPOSED TRANSFEREE IS NOT A
A-1-1
DISQUALIFIED ORGANIZATION AND IS NOT ACQUIRING THE CERTIFICATE FOR THE ACCOUNT
OF A DISQUALIFIED ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH
PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE INDENTURE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE TO A
SUBSTANTIAL TAX UPON THE DEPOSITOR OR, IN CERTAIN CASES, UPON AN AGENT ACTING
FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CERTIFICATE AND THAT
HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY TAXABLE YEAR GENERALLY
WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE PRODUCT OF (A) THE
AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF THIS CERTIFICATE
OWNED THROUGH SUCH PASS-THRU ENTITY BY SUCH DISQUALIFIED ORGANIZATION AND (B)
THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR PURPOSES OF THE
PRECEDING SENTENCE, THE TERM "PASS-THRU" ENTITY INCLUDES REGULATED INVESTMENT
COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST FUNDS, PARTNERSHIPS,
TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER T OF THE CODE
APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NONFOREIGN STATUS CERTIFYING
AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST
AGREEMENT OR THE TRANSACTION DOCUMENTS.
A-1-2
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1
MORTGAGE LOAN ASSET-BACKED CERTIFICATES, CLASS R-1
Certificate No. R-1-__ Percentage Interest: _______%
Evidencing a fractional undivided equity interest in the Lower-Tier
REMIC portion of the Owner Trust Estate, the property of which consists
primarily of the Mortgage Loans in Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1
(the "Trust"), a Delaware business trust formed by Xxxxxx Xxxxxxx ABS Capital I,
Inc., as depositor (the "Depositor"), pursuant to the Trust Agreement referred
to below.
This certifies that ____________________ is the registered owner of
the Percentage Interest represented hereby and referred to above.
The Trust was created pursuant to a Trust Agreement, dated as of
July 1, 2000, (as amended and supplemented by the Amended and Restated Trust
Agreement, dated as of July 1, 2000, the "Trust Agreement"), between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee",
which term includes any successor owner trustee appointed pursuant to 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 Xxxxxx Xxxxxxx
ABS Capital I Trust 2000-1, Mortgage Loan Asset-Backed Certificates (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 Owner
Trustee and the holders of the Certificates and the terms upon which the
Certificates are executed and delivered. All terms used in this Certificate
which are defined in the Trust Agreement shall have the meanings assigned to
them in the Trust Agreement. The Owner Trust Estate consists of the Mortgage
Loans in the Trust, and the other assets referred to in Sections 2.05 and 3.01
of the Trust Agreement. 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 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing in August 2000, to the Person in whose name this Certificate is
registered on the Certificate Register (i) with respect to the first Payment
Date, on the Closing Date and (ii) with respect to every other Payment Date, at
the close of business on the last Business Day of the month preceding the month
of such Payment Date (the "Record Date"), such Certificateholder's Certificate
Percentage Interest in the amount to be distributed to Class R-1
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 or trust capacity nor the Depositor
is personally liable to the Certificateholders for any amount payable
A-1-3
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 July
1, 2000 (the "Indenture"), between the Trust, and Bankers Trust Company of
California, N.A. as indenture trustee (the "Indenture Trustee"), and the Sale
and Servicing Agreement, dated as of July 1, 2000 (the "Sale and Servicing
Agreement"), among the Trust, Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1N, the
Depositor, Long Beach Mortgage Company, as master servicer, and the Indenture
Trustee.
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 Transaction
Documents.
Distributions on this Certificate will be made as provided in the
Sale and Servicing Agreement.
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-1-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Certificate to be duly executed.
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee.
By:
---------------------------------------
Name:
Title:
Dated: ______, 2000
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By:
---------------------------------------
Name:
Title:
A-1-5
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest
in, the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the
Owner Trustee or any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as expressly set forth or
contemplated herein or in the Trust Agreement or the Transaction Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Mortgage Loans, all as more specifically set
forth herein and in the Trust Agreement. A copy of the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Depositor and at such other places, if any,
designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified
below; provided, that any amendment be accompanied by an Opinion of Counsel to
the Owner Trustee to the effect that such amendment complies with the provisions
of the Trust Agreement. 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
Certificateholder, but the Owner Trustee shall be furnished with (A) a letter
from each of the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or (B) an
Opinion of Counsel to the effect that such action will not adversely affect in
any material respect the interests of any Certificateholders. 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 Certificateholder, 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
Certificateholder. 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 (A) an Opinion of Counsel
to the effect that such action will not adversely affect in any material respect
the interests of any Certificateholders and either (a) a letter from each of the
Rating Agencies that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Note or (b) the consent of the
holders of the Certificates evidencing a majority of the Certificate Percentage
Interests; 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.
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, 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.
A-1-6
The initial Certificate Registrar appointed under the Trust Agreement is
Wilmington Trust Company.
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
Certificateholder surrendering the same. No service charge will be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee 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 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-1-7
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.
X-0-0
XXXXXXX X-0
FORM OF CLASS R-2 CERTIFICATE
CLASS R-2 CERTIFICATE
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 A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS
CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING COMPLIANCE
WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS SET FORTH IN THE TRUST AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS
DEFINED IN SECTION 860E(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"). SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN CERTAIN TAXABLE
INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR
PROVIDING THEREOF SERVICE TO PERSONS IN RURAL AREAS, OR ANY ORGANIZATION (OTHER
THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME. NO TRANSFER OF
THIS CERTIFICATE WILL BE REGISTERED BY THE OWNER TRUSTEE UNLESS THE PROPOSED
TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER THINGS, THAT THE
PROPOSED TRANSFEREE IS NOT A
A-2-1
DISQUALIFIED ORGANIZATION AND IS NOT ACQUIRING THE CERTIFICATE FOR THE ACCOUNT
OF A DISQUALIFIED ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH
PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE INDENTURE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE TO A
SUBSTANTIAL TAX UPON THE DEPOSITOR OR, IN CERTAIN CASES, UPON AN AGENT ACTING
FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CERTIFICATE AND THAT
HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY TAXABLE YEAR GENERALLY
WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE PRODUCT OF (A) THE
AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF THIS CERTIFICATE
OWNED THROUGH SUCH PASS-THRU ENTITY BY SUCH DISQUALIFIED ORGANIZATION AND (B)
THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR PURPOSES OF THE
PRECEDING SENTENCE, THE TERM "PASS-THRU" ENTITY INCLUDES REGULATED INVESTMENT
COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST FUNDS, PARTNERSHIPS,
TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER T OF THE CODE
APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NONFOREIGN STATUS CERTIFYING
AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST
AGREEMENT OR THE TRANSACTION DOCUMENTS.
A-2-2
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1
MORTGAGE LOAN ASSET-BACKED CERTIFICATES, CLASS R-2
Certificate No. R-2-__ Percentage Interest: _______%
Evidencing a fractional undivided equity interest in the Upper-Tier
REMIC portion of the Owner Trust Estate, the property of which consists
primarily of the Regular Interests in the Lower-Tier REMIC in Xxxxxx Xxxxxxx ABS
Capital I Trust 2000-1 (the "Trust"), a Delaware business trust formed by Xxxxxx
Xxxxxxx ABS Capital I, Inc., as depositor (the "Depositor"), pursuant to the
Trust Agreement referred to below.
This certifies that ____________________ is the registered owner of
the Percentage Interest represented hereby and referred to above.
The Trust was created pursuant to a Trust Agreement, dated as of
July 1, 2000, (as amended and supplemented by the Amended and Restated Trust
Agreement, dated as of July 1, 2000, the "Trust Agreement"), between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee",
which term includes any successor owner trustee appointed pursuant to 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 Xxxxxx Xxxxxxx
ABS Capital I Trust 2000-1, Mortgage Loan Asset-Backed Certificates (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 Owner
Trustee and the holders of the Certificates and the terms upon which the
Certificates are executed and delivered. All terms used in this Certificate
which are defined in the Trust Agreement shall have the meanings assigned to
them in the Trust Agreement. The Owner Trust Estate consists of the Mortgage
Loans in the Trust, and the other assets referred to in Sections 2.05 and 3.01
of the Trust Agreement. 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 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing in August 2000, to the Person in whose name this Certificate is
registered on the Certificate Register (i) with respect to the first Payment
Date, on the Closing Date and (ii) with respect to every other Payment Date, at
the close of business on the last Business Day of the month preceding the month
of such Payment Date (the "Record Date"), such Certificateholder's Certificate
Percentage Interest in the amount to be distributed to Class R-2
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 or trust capacity nor the Depositor
is personally liable to the Certificateholders for any amount payable
A-2-3
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 July
1, 2000 (the "Indenture"), between the Trust, and Bankers Trust Company of
California, N.A. as indenture trustee (the "Indenture Trustee"), and the Sale
and Servicing Agreement, dated as of July 1, 2000 (the "Sale and Servicing
Agreement"), among the Trust, Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1N, the
Depositor, Long Beach Mortgage Company, as master servicer, and the Indenture
Trustee.
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 Transaction
Documents.
Distributions on this Certificate will be made as provided in the
Sale and Servicing Agreement.
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-2-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Certificate to be duly executed.
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee.
By:
---------------------------------------
Name:
Title:
Dated: ______, 2000
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By:
---------------------------------------
Name:
Title:
A-2-5
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest
in, the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the
Owner Trustee or any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as expressly set forth or
contemplated herein or in the Trust Agreement or the Transaction Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Mortgage Loans, all as more specifically set
forth herein and in the Trust Agreement. A copy of the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Depositor and at such other places, if any,
designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified
below; provided, that any amendment be accompanied by an Opinion of Counsel to
the Owner Trustee to the effect that such amendment complies with the provisions
of the Trust Agreement. 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
Certificateholder, but the Owner Trustee shall be furnished with (A) a letter
from each of the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or (B) an
Opinion of Counsel to the effect that such action will not adversely affect in
any material respect the interests of any Certificateholders. 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 Certificateholder, 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
Certificateholder. 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 (A) an Opinion of Counsel
to the effect that such action will not adversely affect in any material respect
the interests of any Certificateholders and either (a) a letter from each of the
Rating Agencies that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Note or (b) the consent of the
holders of the Certificates evidencing a majority of the Certificate Percentage
Interests; 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.
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, 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.
A-2-6
The initial Certificate Registrar appointed under the Trust Agreement is
Wilmington Trust Company.
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
Certificateholder surrendering the same. No service charge will be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee 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 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-2-7
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-2-8
EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST
XXXXXX XXXXXXX ABS CAPITAL I TRUST 2000-1
This Certificate of Trust of Xxxxxx Xxxxxxx ABS Capital I Trust
2000-1 (the "Trust"), dated July __, 2000, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, ss. 3801 et
seq.).
1. Name. The name of the business trust formed hereby is Xxxxxx
Xxxxxxx ABS Capital I Trust 2000-1.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, One Xxxxxx
Square North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000,
Attention: ____________________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as owner
trustee under a Trust Agreement dated as
of July 1, 2000
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 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor (each as defined in the Amended and
Restated Trust Agreement, dated as of July 1, 2000 (the "Agreement"),
between Xxxxxx Xxxxxxx ABS Capital I, Inc., as Depositor and Wilmington
Trust Company, as Owner Trustee) pursuant to Section 3.05 of the Agreement
and Bankers Trust Company of California, N.A. as indenture trustee, as
follows:
a. The Buyer understands that the Rule 144A Securities have
not been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
C-1
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or
any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with
respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under
the 1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner
with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either
of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may
be resold, pledged or transferred only (i) to a person reasonably
believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the
Seller, the Indenture Trustee, Owner Trustee, the Depositor and the Master
Servicer that 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.
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.
C-2
Capitalized terms used herein and not otherwise defined herein have
the meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, each of the parties has executed this document
as of the date set forth below.
------------------------------ ------------------------------
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
C-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.
--------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-4
___ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions,
or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, but is not a trust fund that
includes as participants individual retirement accounts or H.R. 10
plans.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if
the Buyer is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi)
securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer
used the cost of such securities to the Buyer 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
C-5
and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule
144A.
--- --- Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own
account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance
on Rule 144A, the Buyer will only purchase for the account of a third
party that at the time is a "qualified institutional buyer" within the
meaning of Rule 144A. In addition, the Buyer agrees that the Buyer will
not purchase securities for a third party unless the Buyer has obtained a
current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third
party independently meets the definition of "qualified institutional
buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of Rule 144A
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
------------------------------------
Print Name of Buyer
By:
--------------------------------
Name:
Title:
Date:
---------------------
C-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
C-7
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities
will constitute a reaffirmation of this certification by the undersigned
as of the date of such purchase.
------------------------------------
Print Name of Buyer
By:
--------------------------
Name:
Title:
IF AN ADVISER:
------------------------------------
Print Name of Buyer
Date:
C-8
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
_____________, 20__
Xxxxxx Xxxxxxx ABS Capital I, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage Finance Group
Re: Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1
Mortgage Loan Asset-Backed Certificates (the "Certificates")
------------------------------------------------------------
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
_____________________ (the "Seller") $___________ of the above captioned
Certificates, issued pursuant to the Amended and Restated Trust Agreement, dated
as of July 1, 2000 (the "Trust Agreement"), between Xxxxxx Xxxxxxx ABS Capital
I, Inc., as depositor (the "Depositor") and Wilmington Trust Company, as owner
trustee (the "Owner Trustee"). All terms used herein and not otherwise defined
shall have the meanings set forth in the Trust Agreement. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Company and that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933,
as amended (the "Act") or any state securities law, (b) the Depositor is
not required to so register or qualify the Certificates, (c) the
Certificates may be resold only if registered and qualified pursuant to
the provisions of the Act or any state securities law, or if an exemption
from such registration and qualification is available, (d) the Trust
Agreement contains restrictions regarding the transfer of the Certificates
and (e) the Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account
for investment only and not with a view to or for sale in connection with
any distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar
to the Certificates, such that it is capable of evaluating the merits and
risks of investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor" within the
meaning of Rule 501(a) promulgated pursuant to the Act.
D-1
4. The Purchaser has been furnished with, and has had an opportunity
to review (a) a copy of the Trust Agreement and (b) such other information
concerning the Certificates, the Mortgage Loans and the Depositor as has
been requested by the Purchaser from the Depositor or the Seller and is
relevant to the Purchaser's decision to purchase the Certificates. The
Purchaser has had any questions arising from such review answered by the
Depositor or the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or will
it authorize any person to (a) offer, pledge, sell, dispose of or
otherwise transfer any Certificate, any interest in any Certificate or any
other similar security to any person in any manner, (b) solicit any offer
to buy or to accept a pledge, disposition of other transfer of any
Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (c) otherwise approach or negotiate with
respect to any Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) make any general
solicitation by means of general advertising or in any other manner or (e)
take any other action, that (as to any of (a) through (e) above) would
constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions
of the Trust Agreement.
6. The Purchaser represents:
(i) The Purchaser 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. ss.2510.3101; and
(ii) the Purchaser 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 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
By:
--------------------
Name:
Title:
D-2
EXHIBIT E
FORM OF DEPOSITOR REPRESENTATION LETTER
______________, 20___
Xxxxxx Xxxxxxx ABS Capital I, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage Finance Group
Re: Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1
Mortgage Loan Asset-Backed Certificates (the "Certificates")
------------------------------------------------------------
Ladies and Gentlemen:
________________________________ (the "Purchaser") intends to
purchase from ______________________(the "Seller") a ___% Certificate Percentage
Interest of Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1 Mortgage Loan Asset-Backed
Certificates (the "Certificates"), issued pursuant to the Amended and Restated
Trust Agreement, dated as of July 1, 2000 (the "Trust Agreement"), between
Xxxxxx Xxxxxxx ABS Capital I, Inc., as depositor (the "Depositor") and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the Trust
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any 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 Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any 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 Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Trust Agreement.
E-1
Very truly yours,
------------------------------------
(Seller)
By:
---------------------------------
Name:
Title:
E-2
EXHIBIT F
FORM OF CERTIFICATE OF NONFOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.05 of the Amended and Restated Trust Agreement, dated as
of July 1, 2000 (the "Trust Agreement"), between Xxxxxx Xxxxxxx ABS Capital I,
Inc., as depositor (the "Depositor") and Wilmington Trust Company, as Owner
Trustee, in connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner (the "Beneficial Owner"), or nominee on
behalf of the Beneficial Owner of the Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1,
Mortgage Loan Asset-Backed Certificates (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 W9 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 nonresident 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;
F-1
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 W9
____ 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.
F-2
---------------------------------------
Name:
Title: (if applicable)
---------------------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of
attorney must accompany this certificate.
F-3
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
_____________, 2000__
Xxxxxx Xxxxxxx ABS Capital I, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage Finance Group
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Re: Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1
Mortgage Loan Asset-Backed Certificates
Dear Sirs:
__________________________________ (the "Transferee") intends to
acquire from _____________________ (the "Depositor") a ____% Certificate
Percentage Interest of Xxxxxx Xxxxxxx ABS Capital I Trust 2000-1, Mortgage Loan
Asset-Backed Certificates (the "Certificates"), issued pursuant to a Amended and
Restated Trust Agreement, dated as of July 1, 2000 (the "Trust Agreement"),
between Xxxxxx Xxxxxxx ABS Capital I, Inc., as depositor (the "Depositor") and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
thereto in the Trust Agreement.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Company, the Owner Trustee and the Master Servicer that:
(1) The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or other retirement arrangement, including, without limitation,
individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate
accounts in which such plans, accounts or arrangements are invested, that
is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the "Code") (any of the foregoing, a "Plan"), (ii) are not
being acquired with or on behalf of assets of a Plan, and (iii) will not
be transferred to any entity that is deemed to be investing in, or acting
on behalf of, plan assets; and
G-1
(2) 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 herein.
Very truly yours,
By:
---------------------------------------
Name:
Title:
G-1
EXHIBIT H
FORM OF CERTIFICATE TAX MATTERS TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF _____________________)
) ss.
COUNTY OF ____________________)
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of _________] [the United States],
on behalf of which he/she makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" and
will not be a "disqualified organization" as of [date of transfer]. (For
this purpose, a "disqualified organization" means the United States, any
state or political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of the
forgoing (other than certain taxable instrumentalities), any cooperative
organization furnishing electric energy or providing telephone service to
persons in rural areas, or any organization (other than a farmers'
cooperative) that is exempt from federal income tax unless such
organization is subject to the tax on unrelated business income); (ii) it
is not acquiring the Certificate for the account of disqualified
organization; (iii) it consents to any amendment of the Sale and Servicing
Agreement that shall be deemed necessary by the Owner Trustee (upon advice
of counsel) to constitute a reasonable arrangement to ensure that the
Certificate will not be owned directly or indirectly by a disqualified
organization; and (iv) it will not transfer any such Certificate unless
(a) it has received from the transferee an affidavit in substantially the
same form as this affidavit containing these same four representations and
(b) as of the time of the transfer, it does not have actual knowledge that
such affidavit is false.
H-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] and its Corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this ___ day of __________________.
[NAME OF INVESTOR]
By:
---------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
Attest:
--------------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or proved
to be the same person who executed the foregoing instrument and to be the [Title
of Officer] of the Investor, and acknowledged to me that he executed the same as
his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of ______________.
--------------------------------
NOTARY PUBLIC
COUNTY OF
----------------------
STATE OF
-----------------------
My commission expires the ____ day of _________________.
H-2
