EXHIBIT 99.6
EXECUTION COPY
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CWABS, INC.
Depositor
WILMINGTON TRUST COMPANY
Owner Trustee
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MASTER TRUST AGREEMENT
Dated as of August 28, 2000
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CWABS MASTER TRUST
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Table of Contents
Page
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions..........................................................1
Section 1.02. Other Terms..........................................................3
Section 1.03. Rules of Construction................................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name.................................................................5
Section 2.02. Office...............................................................5
Section 2.03. Purposes and Powers..................................................5
Section 2.04. Appointment of Owner Trustee.........................................6
Section 2.05. Initial Capital Contribution of Series Assets........................6
Section 2.06. Declaration of Trust.................................................6
Section 2.07. Liability of Depositor and the Transferor............................6
Section 2.08. Title to Trust Property..............................................6
Section 2.09. Location of Trust....................................................7
Section 2.10. Representations and Warranties of Depositor..........................7
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust.........................................8
Section 3.02. The Transferor Certificates..........................................8
Section 3.03. Authentication of Transferor Certificates............................9
Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates........................................................10
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor Certificate........11
Section 3.06. Maintenance of Office or Agency.....................................11
Section 3.07. Persons Considered Certificateholders...............................11
Section 3.08. Access to List of Certificateholders' Names and Addresses...........11
Section 3.09. Appointment of Certificate Paying Agent.............................12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain Matters........12
Section 4.02. Action by Certificateholders Regarding Certain Matters..............13
Section 4.03. Action by Certificateholders Regarding Bankruptcy...................13
Section 4.04. Restrictions on Certificateholder's Power...........................13
Section 4.05. Majority Interest...................................................14
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds..........................................14
Section 5.02. Method of Payment...................................................14
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority...................................................15
Section 6.02. General Duties......................................................15
Section 6.03. Action on Instruction...............................................15
Section 6.04. No Duties Except as Specified in the Trust Agreement or in
Instructions........................................................16
Section 6.05. No Action Except Under Specified Documents or Instructions..........17
Section 6.06. Restrictions........................................................17
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.....................................17
Section 7.02. Furnishing Documents................................................18
Section 7.03. Representations and Warranties......................................18
Section 7.04. Reliance; Advice of Counsel.........................................19
Section 7.05. Not Acting in Individual Capacity...................................19
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or Payment
Obligations.........................................................19
Section 7.07. Owner Trustee May Own Notes.........................................20
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses...................................20
Section 8.02. Indemnification.....................................................20
Section 8.03. Payments to Owner Trustee...........................................21
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement......................................21
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee.............................22
Section 10.02. Successor Owner Trustee.............................................22
Section 10.03. Merger or Consolidation of Owner Trustee............................23
Section 10.04. Appointment of Co-Trustee or Separate Trustee.......................23
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments..........................................24
Section 11.02. No Legal Title to Series Assets in Certificateholders...............25
Section 11.03. Limitations on Rights of Others.....................................25
Section 11.04. Notices.............................................................25
Section 11.05. Severability........................................................25
Section 11.06. Separate Counterparts...............................................26
Section 11.07. Successors and Assigns..............................................26
Section 11.08. Nonpetition Covenant................................................26
Section 11.09. No Recourse.........................................................26
Section 11.10. Headings............................................................26
Section 11.11. GOVERNING LAW.......................................................26
Section 11.12. Rule 144A Information...............................................26
EXHIBITS
EXHIBIT A Form of Certificate of Trust of
CWABS Master Trust A-1
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This MASTER TRUST AGREEMENT, dated as of August 28, 2000, between CWABS,
INC., a Delaware corporation, as Depositor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Owner Trustee,
WITNESSETH:
WHEREAS, the parties to this Master Trust Agreement will create the CWABS
Master Trust and provide for, among other things, the issuance of the
Transferor Certificates;
NOW, THEREFORE, the parties to this Master Trust Agreement agree as
follows.
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Master Trust Agreement as defined below.
"Administration Agreement" means the Administration Agreement associated
with a Series specified as one of its Transaction Documents.
"Administrator" means the person acting as such under the Administration
Agreement.
"Agreement" means this Master Trust Agreement together with a Series
Trust Supplement.
"Business Trust Statute" means the Delaware Business Trust Act (12 Del.
Code,ss.3801 et seq.). -
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit A to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificateholder" means the registered holder of a Transferor
Certificate issued in connection with the creation of a subtrust of the Trust.
"Code" means the Internal Revenue Code of 1986.
"Credit Enhancer" for any Series means the person identified as such in
the related Series Trust Supplement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Expenses" has the meaning assigned to it in Section 8.02.
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"Indemnified Parties" has the meaning assigned to it in Section 8.02.
"Indenture" for any Series of Notes means the indenture entered into
between the Trust, an indenture trustee, and any other party, relating to a
particular subtrust of the Trust specifying the principal terms pursuant to
which the Series of Notes are issued.
"Indenture Trustee" for a Series means the entity acting as the indenture
trustee under the related Indenture.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, participation
interest, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever resulting in an encumbrance against real or
personal property of a person, including any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any Financing
Statement under the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or comparable law of any jurisdiction to evidence any of the
foregoing.
"Master Trust Agreement" means this Master Trust Agreement.
"Mortgage Loan" has the meaning given to it in the Sale and Servicing
Agreement that relates to the transfer of the assets of a particular subtrust
of the Trust.
"Noteholder" means a holder of one or more Notes issued by the Trust for
a particular subtrust of the Trust.
"Notes" means the notes of a particular series issued by the Trust for a
particular subtrust of the Trust from time to time pursuant to its related
Indenture.
"Opinion of Counsel" means a written opinion of counsel acceptable to the
Owner Trustee and the counsel may be in-house counsel for the Depositor, its
Affiliates, or the Transferor.
"Responsible Officer" means, any officer within the corporate trust
department of the Owner Trustees, including any vice president, assistant vice
president, managing director, treasurer, assistant treasurer, trust officer,
or any other officer of the Owner Trustees who customarily performs functions
similar to those performed by the persons who at the time are those officers,
respectively, or to whom any corporate trust matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of the Master Trust Agreement or
Indenture.
"Sale and Servicing Agreement" means the sale and servicing agreement
relating to the transfer to a particular subtrust of the Trust of the assets
of the subtrust pursuant to which, among other things, the Depositor transfers
all its interests in the Mortgage Loans specified in it to the subtrust of the
Trust.
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"Series" means any series of Notes issued pursuant to an Indenture
secured by the assets of a particular subtrust of the Trust or any related
Transferor Certificates, as the context requires.
"Series Assets" means all assets and property of a subtrust of the Trust
acquired by the subtrust of the Trust pursuant to the related sale and
servicing agreement.
"Series Trust Supplement" means a supplement to this Master Trust
Agreement creating a separate subtrust to accept the transfer of assets under
a particular Sale and Servicing Agreement and to issue Notes, and specifying
the principal terms of any Transferor Certificate relating to the relevant
subtrust.
"Subtrust" means a separate series of the Trust established pursuant to
Section 2.08.
"Transaction Documents" means collectively the Indenture relating to a
subtrust, the Agreement, and any other document designated in the Series Trust
Supplement or the related Indenture as a "Transaction Document" for the
relevant subtrust for the purposes of this Master Trust Agreement.
"Transferor" means the holder of a Transferor Certificate of a subtrust
of the Trust.
"Transferor Certificate" means the certificate of a Series representing
the interest in a particular subtrust of the Trust that is the right to
receive any amounts available for distribution that are not allocable to Notes
secured by the assets of that subtrust and that is executed and authenticated
in accordance with this Master Trust Agreement substantially in the form
attached to the related Series Trust Supplement.
"Transferor Certificate Register" means the register maintained by the
Owner Trustee pursuant to Section 3.04.
"Trust" means the master trust formed pursuant to the Master Trust
Agreement.
Section 1.02. Other Terms.
Defined terms include, as appropriate, all genders and the plural as well
as the singular.
Section 1.03. Rules of Construction.
Except as otherwise expressly provided in this Master Trust Agreement or
unless the context otherwise clearly requires:
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Master Trust Agreement, such as "Section
3.01(B)," refer to the designated article, section, subsection, exhibit, or
other subdivision of this Master Trust Agreement as a whole and to all
subdivisions of the designated article, section, subsection, exhibit, or other
subdivision. The words "herein," "hereof," "hereto," "hereunder," and other
words of similar
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import refer to this Master Trust Agreement as a whole and not to any
particular article, section, exhibit, or other subdivision of this Master
Trust Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements, or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Master Trust
Agreement.
(c) Any party may execute any of the requirements under this Master Trust
Agreement either directly or through others, and the right to cause something
to be done rather than doing it directly shall be implicit in every
requirement under this Master Trust Agreement. Unless a provision is
restricted as to time or limited as to frequency, all provisions under this
Master Trust Agreement are implicitly available and things may happen from
time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
(e) A reference to "a thing" or "any of a thing" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any of a thing" is any and all of it. A reference to the plural
of anything as to which there could be either one or more than one does not
imply the existence of more than one (for instance, the phrase "the obligors
on a note" means "the obligor or obligors on a note"). "Until something
occurs" does not imply that it must occur, and will not be modified by the
word "unless." The word "due" and the word "payable" are each used in the
sense that the stated time for payment has past. The word "accrued" is used in
its accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not otherwise
defined, and accounting terms partly defined in this Master Trust Agreement,
to the extent not completely defined, shall be construed in accordance with
generally accepted accounting principles in the United States. To the extent
that the definitions of accounting terms in this Master Trust Agreement are
inconsistent with their meanings under generally accepted accounting
principles, the definitions contained in this Master Trust Agreement shall
control. Capitalized terms used in this Master Trust Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Master Trust Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the word "from" or "beginning"
means "from and including," the word "after" means "from but excluding," the
words "to" or "until" mean "to but excluding,"
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and the word "through" means "to and including." Likewise, in setting
deadlines or other periods, "by" means "on or before." The words "preceding,"
"following," and words of similar import, mean immediately preceding or
following. References to a month or a year refer to calendar months and
calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
ARTICLE II
ORGANIZATION
Section 2.01. Name.
This Trust shall be known as "CWABS Master Trust," in which name the
Owner Trustee may issue Notes with a specific Series designation and otherwise
conduct the business of the Trust.
Section 2.02. Office.
The office of the Trust shall be in care of the Owner Trustee at "Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention:
Corporate Trust Administration" or at any other address in the State of
Delaware that the Owner Trustee may designate by written notice to the
Depositor.
Section 2.03. Purposes and Powers.
(a) The Trust is authorized to engage in the following activities:
(i) to issue Notes in one or more Series pursuant to Indentures;
(ii) to issue Transferor Certificates in one or more Series pursuant
to this Master Trust Agreement and Series Trust Supplements;
(iii) to Grant Series Assets to an Indenture Trustee pursuant to an
Indenture;
(iv) to distribute to a Transferor pursuant to this Master Trust
Agreement, the Series Trust Supplements, and the other Transaction
Documents any portion of the related Series Assets released from the Lien
of the related Indenture and any other amounts provided for in the
related Sale and Servicing Agreement;
(v) to enter into and perform its obligations under the Transaction
Documents to which it becomes a party;
(vi) to engage in those activities, including entering into
agreements, that are appropriate to accomplish any of the foregoing or
are incidental to them; and
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(vii) subject to compliance with the Transaction Documents, to
engage in any other activities appropriate to conserve the Series Assets
of any subtrust and make distributions to any Transferor and the holders
of Notes.
The Trust shall not engage in any activity other than in connection with
the foregoing activities or other than as required or authorized by this
Master Trust Agreement or the other Transaction Documents.
Section 2.04. Appointment of Owner Trustee.
The Depositor appoints the Owner Trustee as trustee of the Trust and each
subtrust effective as of the date of this Master Trust Agreement and each
Series Trust Supplement, as the case may be, to have all the rights and
obligations in this Master Trust Agreement and each Series Trust Supplement.
Section 2.05. Initial Capital Contribution of Series Assets.
The Depositor hereby remits to the Owner Trustee the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor of the
foregoing contribution. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall promptly reimburse the Owner Trustee on
request for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Series Assets of each subtrust in trust, on the terms of
the related Agreement, for the benefit of the related Transferor, subject to
the obligations of the Trust under the related Transaction Documents. The
Trust is a business trust under the Business Trust Statute and this Master
Trust Agreement and the Series Trust Supplements are the governing instruments
of the business trust. The Owner Trustee shall have all rights and obligations
in the Agreements and in the Business Trust Statute for accomplishing the
purposes of the Trust. The Owner Trustee shall file with the Secretary of
State of the State of Delaware a Certificate of Trust of the Trust.
Section 2.07. Liability of the Transferor.
Except to the extent otherwise provided in this Master Trust Agreement or
in the other Transaction Documents, the Transferor shall be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the general corporation law of the
State of Delaware.
Section 2.08. Title to Trust Property.
Legal title to all the Series Assets shall be vested in the Trust as a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Series Assets to be vested in a trustee, in which
case title shall be vested in the Owner Trustee or any co-trustee or separate
trustee, as the case may be.
The Trust is a series trust pursuant to Sections 3804 and 3806(b)(2) of
the Business Trust Statute, and each series (called a subtrust) shall be a
separate series of the Trust within the
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meaning of Section 3806(b)(2) of the Business Trust Statute. As such, separate
and distinct records shall be maintained by the Trust for each subtrust and
the assets of the Trust associated with a particular subtrust shall be held
and accounted for by the Trust separately from the assets of any other
subtrust and from any other assets of the Trust. The debts, liabilities,
obligations, and expenses incurred, contracted for, or otherwise existing with
respect to a particular subtrust shall be enforcable against the assets of the
particular subtrust only, and not against the assets of the Trust generally,
or the assets of any other subtrust. None of the debts, liabilities,
obligations, and expenses incurred, contracted for, or otherwise existing with
respect to a particular subtrust shall be enforcable against the assets of any
other subtrust.
Section 2.09. Location of Trust.
The Trust will be located in Delaware and administered in Delaware. Any
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in Delaware or Illinois. The Trust shall not have any employees in any
State other than Delaware. Nothing in this Master Trust Agreement shall
restrict the Owner Trustee from having employees within or without Delaware.
Payments will be received by the Trust only in Delaware, Illinois, or
California, and payments will be made by the Trust only from Delaware or
Illinois.
Section 2.10. Representations and Warranties of Depositor.
The Depositor represents and warrants to the Owner Trustee as of the date
of this Agreement, and as to any Transaction Document, as of its datethat:
(a) Organization and Good Standing. The Depositor is a corporation duly
organized and validly existing under the laws of Delaware, with full power and
authority to own its properties and to conduct its business as presently owned
or conducted and to execute, deliver, and perform the Agreements and any other
document related to the Agreements to which it is a party and to perform its
obligations as contemplated by them.
(b) Due Qualification. The Depositor is duly qualified to do business as
a Delaware corporation in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to so qualify or
to obtain required licenses or approvals would have a material adverse effect
on its ability to perform its obligations under the Agreements and the
Transaction Documents to which the Depositor is a party.
(c) Due Authorization; Enforceability. The Depositor has full power and
authority to execute, deliver, and perform the Agreements and the Transaction
Documents to which it is a party and to carry out their respective terms. The
Depositor has full power and authority to sell and assign the Series Assets to
be deposited with any subtrust of the Trust, and the Depositor has duly
authorized that sale and assignment and deposit to any subtrust of the Trust
by all necessary action. The execution, delivery, and performance by the
Depositor of the Agreements and the Transaction Documents to which the
Depositor is a party have been duly authorized by the Depositor by all
necessary action. The Agreements and the Transaction Documents executed by the
Depositor have been duly executed and delivered and constitute the valid and
legally binding obligations of the Depositor enforceable against the Depositor
in accordance with their terms.
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(d) No Conflict. The Depositor's execution and delivery of the Agreements
and the Transaction Documents to which the Depositor is a party, performance
of the transactions contemplated by them, and fulfillment of their terms
applicable to the Depositor do not conflict with any requirements of law
applicable to the Depositor or conflict with, result in any breach of any of
the provisions of, or with or without notice or lapse of time constitute a
default under, any indenture, contract, or other instrument to which the
Depositor is a party or by which it or its properties are bound.
(e) Consents. No authorization, consent, license, order, or approval of
or registration or declaration with, any governmental authority is required to
be obtained, effected, or given by the Depositor in connection with the
execution and delivery of the Agreements or the Transaction Documents by the
Depositor or its performance of its obligations under any of them or the
transactions contemplated by any of them, or the transfer of the Series Assets
to any subtrust of the Trust.
(f) Litigation. No actions, proceedings, or investigations are pending
or, to the best of the Depositor's knowledge, threatened against the Depositor
before any governmental authority having jurisdiction over the Depositor
(i) asserting the invalidity of any Agreement or any Transaction
Documents to which the Depositor is a party,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by any Agreement or any Transaction Documents to which the
Depositor is a party,
(iii) seeking any determination that might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, any Agreement or any Transaction Documents
to which the Depositor is a party, or
(iv) seeking to affect adversely the income tax attributes of any
subtrust of the Trust under the United States federal or New York State
or Delaware income tax law.
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.05 and until the creation of a subtrust and the issuance
of a Transferor Certificate for a subtrust, the Depositor shall be the sole
beneficiary of the Trust.
Section 3.02. The Transferor Certificates.
(a) Pursuant to Section 3806(b)(2) of the Business Trust Statute, the
Trust may issue Transferor Certificates in one or more Series, the principal
terms of which shall be in a Series Trust Supplement for the Series. The
Transferor Certificates of all outstanding Series shall be
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equally and ratably entitled to the benefits of this Master Trust Agreement,
without preference, priority, or distinction, except, with respect to any
Series as provided in the related Series Trust Supplement and except that no
Transferor Certificate shall have any interest in any subtrust or the assets
of any subtrust other than its related subtrust.
(b) By the issuance date of any Transferor Certificate, the Depositor and
the Owner Trustee shall execute and deliver a Series Trust Supplement
specifying the principal terms of the Series. The terms of the Series Trust
Supplement may change the terms of this Master Trust Agreement solely as
applied to its Series and subtrust. If a conflict exists between this Master
Trust Agreement and any Series Trust Supplement, the Series Trust Supplement
shall be controlling for its Series and subtrust. An issuance of Transferor
Certificates by the Trust is subject to the satisfaction of the following
conditions:
(i) By the fifth Business Day before the issuance date of the
Series, the Administrator shall have given the Servicer, the Indenture
Trustee, the Owner Trustee, each Rating Agency, and any Credit Enhancer
written notice of the issuance and its issuance date. The notice shall
state the designation of the Series.
(ii) The Administrator shall have delivered to the Depositor, the
Indenture Trustee, and the Owner Trustee, at least five Business Days
before the issuance date of the Series, the related Series Trust
Supplement, in form satisfactory to the Owner Trustee, specifying the
principal terms of the Series.
When the above conditions are satified the Depositor and the Owner
Trustee shall execute the Series Trust Supplement and shall execute, deliver,
and authenticate the Transferor Certificates of the new Series to the order of
the Depositor. Notwithstanding the provisions of this Section, before the
execution of any Series Trust Supplement, the Owner Trustee may request and
rely on an Opinion of Counsel stating that the execution of the Series Trust
Supplement is authorized or permitted by this Master Trust Agreement and any
Series Trust Supplement related to any outstanding Series. The Owner Trustee
may, but shall not be obligated to, enter into any Series Trust Supplement
that adversely affects the Owner Trustee's own rights, duties, or immunities
under this Master Trust Agreement.
(c) The Transferor Certificates will be substantially in the forms
specified in the relevant Series Trust Supplement and will, on original issue,
be executed, authenticated, and delivered by the Owner Trustee to the order of
the Depositor concurrently with the transfer of the related Mortgage Loans to
the Trust.
(d) The Transferor Certificates will be executed by manual or facsimile
signature on behalf of the Owner Trustee by an authorized officer. Transferor
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time their signatures were affixed, authorized to sign on behalf
of the Owner Trustee shall bind the Trust, notwithstanding that any of them
have ceased to be so authorized before the authentication and delivery of the
Transferor Certificates or did not hold such offices at the date of the
Transferor Certificate. The Transferor Certificates will not be book-entry
certificates.
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Section 3.03. Authentication of Transferor Certificates.
No Transferor Certificate shall be entitled to any benefit under this
Master Trust Agreement, or be valid for any purpose, unless the Transferor
Certificate is manually authenticated by the Owner Trustee substantially in
the form provided for in the relevant Agreement, and the authentication on any
Transferor Certificate will be conclusive evidence, and the only evidence,
that the Transferor Certificate has been duly authenticated and delivered. All
Transferor Certificates shall be dated the date of their authentication.
The Trust initially appoints the Indenture Trustee to act as the
authentication agent of the Owner Trustee. All references to the
authentication of the Transferor Certificates shall be considered to include
the authentication agent.
Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates.
The Trust shall keep a Transferor certificate register (the "Certificate
Register") in which, subject to any reasonable regulations it may prescribe,
the Trust shall provide for the registration of the Transferor Certificates
and, to the extent permitted by this Master Trust Agreement and any related
Series Trust Supplement, of transfers and exchanges of the Transferor
Certificates. The certificate registrar (the "Certificate Registrar") is
initially the Indenture Trustee.
Whenever any Transferor Certificate is surrendered for registration of
transfer at the office or agency of the Certificate Registrar maintained for
that purpose and the conditions of this Section have been satisfied, the Owner
Trustee, on behalf of the Trust, shall execute, authenticate, and deliver in
the name of the designated transferees, one or more new Transferor
Certificates of the same Series in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
At the option of its Holder, each Transferor Certificate may be exchanged
for other Transferor Certificates of the same Series, in authorized
denominations of a like aggregate amount, by surrendering the Transferor
Certificate to be exchanged at the office or agency of the Certificate
Registrar maintained for that purpose.
Every Transferor Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or an attorney-in-fact for the
Certificateholder duly authorized in writing. Each transfer must satisfy all
transfer restrictions in the Transferor Certificates and the related Series
Trust Supplement. Each Transferor Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
No service charge shall be made for the registration of transfer or
exchange of any Transferor Certificate, but the Owner Trustee or the
Certificate Registrar may require payment
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of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Transferor
Certificate.
The preceding provisions of this Section notwithstanding, the Owner
Trustee need not transfer or exchange, and the Certificate Registrar need not
register transfers or exchanges, of Transferor Certificates during the fifteen
days preceding the due date for any payment on the Transferor Certificates.
The Certificate Registrar shall at all times maintain an office or agency
where Transferor Certificates may be surrendered for registration of transfer
or exchange.
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor
Certificate.
If (a) the Owner Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of a Transferor Certificate and the Owner Trustee
receives the security or indemnity it requires to hold it harmless or (b) any
mutilated Transferor Certificate is surrendered to the Owner Trustee, then in
the absence of notice that the Transferor Certificate has been acquired by a
Protected Purchaser, the Owner Trustee shall execute, authenticate, and
deliver, in exchange for or in lieu of the mutilated, destroyed, lost, or
stolen Transferor Certificate, a new Transferor Certificate of like tenor and
denomination. The Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed on the issuance
of the new Transferor Certificate under this Section. Any duplicate Transferor
Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the relevant subtrust of the Trust, as if originally
issued, whether or not the lost, stolen, or destroyed Transferor Certificate
is found.
Section 3.06. Maintenance of Office or Agency.
The Trust shall maintain an office or agency where notices and demands on
the Trust regarding the Transferor Certificates and the Transaction Documents
may be served. The Trust initially designates Indenture Trustee as its office
for those purposes. The Owner Trustee shall give prompt written notice to the
Certificateholders of the location, and any change in the location, of this
office or agency. If the Trust ever fails to maintain this office or agency,
then presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office of the Owner Trustee.
Section 3.07. Persons Considered Certificateholders.
Before due presentation of a Transferor Certificate for registration
of transfer, the Owner Trustee, the Certificate Registrar, and any paying
agent for the Transferor Certificates shall treat the person in whose name any
Transferor Certificate is registered in the Certificate Register as the owner
of the Transferor Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar, and any paying agent for the
Transferor Certificates shall be bound by any notice to the contrary.
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Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish to the Depositor or the Owner
Trustee a list of the names and addresses of the Transferor Certificateholders
as of the most recent Record Date within fifteen days after receipt by the
Certificate Registrar of a written request for it from the Depositor or the
Owner Trustee.
Section 3.09. Appointment of Certificate Paying Agent.
The paying agent for the Transferor Certificates shall make distributions
to the holder of each Transferor Certificate pursuant to the relevant Series
Trust Supplement and shall report the amounts of those distributions to the
Owner Trustee. The Administrator, on behalf of the Trust, may remove the
Certificate Paying Agent if the Administrator determines in its sole
discretion that the Certificate Paying Agent has failed to perform its
obligations under an Agreement in any material respect. Except as otherwise
provided in a Series Trust Supplement, the Certificate Paying Agent initially
shall be the Indenture Trustee. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent on thirty days' written notice
to the Owner Trustee. If the Indenture Trustee is no longer the Certificate
Paying Agent, the Administrator shall appoint a bank or trust company as
successor to act as Certificate Paying Agent. The Administrator shall cause
the successor Certificate Paying Agent or any additional Certificate Paying
Agent appointed by the Administrator to execute and deliver to the Trust an
instrument in which the successor Certificate Paying Agent or additional
Certificate Paying Agent agrees with the Trust that, as Certificate Paying
Agent, the successor Certificate Paying Agent or additional Certificate Paying
Agent will hold any sums held by it for payment to the Certificateholders in
trust for the benefit of the Certificateholders entitled to them until those
sums are paid to the appropriate Certificateholders. The Certificate Paying
Agent shall return all unclaimed funds to the Trust, and upon removal of a
Certificate Paying Agent, the Certificate Paying Agent shall also return all
funds in its possession to the Trust. Any reference in this Master Trust
Agreement or any Series Trust Supplement to the Certificate Paying Agent shall
include any co-Certificate Paying Agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain
Matters.
(a) The Owner Trustee shall give the Certificateholders thirty days'
written notice before taking any of the following actions on behalf of the
Trust. Within thirty days of the date of the notice the Certificateholders may
instruct the Owner Trustee in writing not to take the proposed action or may
provide alternative direction. Thirty days after giving the notice, if the
Owner Trustee has not been instructed otherwise by a majority of the holders
of the Transferor Certificates of all outstanding Series (voting per capita),
then the Owner Trustee may:
(i) initiate any claim or lawsuit by the Trust, or any subtrust, or
compromise any action, claim, or lawsuit brought by or against the Trust,
or any subtrust;
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(ii) file an amendment to the Certificate of Trust;
(iii) amend any Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(iv) amend the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required, but
the amendment materially adversely affects the interests of the
Certificateholders;
(v) amend the Administration Agreement; and
(vi) appoint a successor Certificate Paying Agent, Certificate
Registrar, Administrator, or Indenture Trustee under the Indenture, or
consent to the assignment by the Transfer Agent and Registrar,
Administrator, or Indenture Trustee of its obligations under the
Indenture.
If any Series has more than one holder of its Transferor Certificates,
then the Holders may only give instructions that are unanimously agreed to.
(b) Notwithstanding Section 4.01(a), without prior notice to the
Certificateholders the Owner Trustee may, on behalf of the Trust:
(i) initiate a claim or lawsuit by the Trust, or any subtrust, for
collection of Series Assets;
(ii) file an amendment to the Certificate of Trust whenever the
amendment is required by the Business Trust Statute; or
(iii) amend the Administration Agreement to cure any ambiguity or
mistake or effect any other amendment that would not materially adversely
affect the interests of the Certificateholders.
The foregoing provisions of this Section 4.01 do not create a duty on the
part of the Owner Trustee to take any of the actions described above.
Section 4.02. Action by Certificateholders Regarding Certain Matters.
Except when directed by the Certificateholders and with the prior written
consent of the Credit Enhancer in the case of (a), (b), or (c) below, the
Owner Trustee may not (a) remove the Administrator pursuant to Section 7(c) of
the Administration Agreement, (b) appoint a successor Administrator pursuant
to Section 7(e) of the Administration Agreement, (c) remove the Master
Servicer under the Sale and Servicing Agreement, or (d) except as expressly
provided in the Indenture, sell Series Assets after the termination of the
Indenture.
Section 4.03. Action by Certificateholders Regarding Bankruptcy.
Except upon delivery to the Owner Trustee by each Certificateholder of a
certificate certifying that the Certificateholder reasonably believes that the
Trust is insolvent, the Owner Trustee may not commence a voluntary proceeding
in bankruptcy relating to the Trust.
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Section 4.04. Restrictions on Certificateholder's Power.
A Certificateholder shall not direct the Owner Trustee to take or to
refrain from taking any action if that action or inaction would be contrary to
any obligation of the Trust, any subtrust of the Trust, or the Owner Trustee
under this Master Trust Agreement or any of the other Transaction Documents or
would be contrary to Section 2.03. The Owner Trustee shall not be obligated to
follow that direction if given.
Section 4.05. Majority Interest.
Except as expressly provided in this Master Trust Agreement or in any
Series Trust Supplement, any action that may be taken by the
Certificateholders under this Master Trust Agreement shall be taken by
Certificateholders unanimously within any Series and when more than one Series
is involved then by a majority of the Series voting per capita.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds.
(a) The Certificate Paying Agent shall distribute amounts to the
Certificateholders of each Series pursuant to the related Series Trust
Supplement.
(b) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to the Certificateholders, the withholding tax shall
reduce the amount otherwise distributable to the Certificateholders in
accordance with this Section. The Certificate Paying Agent is authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust. This authorization shall not prevent the Certificate Paying
Agent from contesting any tax in appropriate proceedings and withholding
payment of the tax pending the outcome of the proceedings if permitted by law.
The amount of any withholding tax imposed on any distributions shall be
treated as cash distributed to the Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If
withholding tax might be payable on a distribution to a non-U.S.
Certificateholder, the Certificate Paying Agent may in its sole discretion
withhold an appropriate amount to cover that possibility.
Section 5.02. Method of Payment.
Distributions required to be made to a Certificateholder on any Payment
Date shall be made by wire transfer of immediately available funds to the
account of the Certificateholder at a bank or other entity having appropriate
facilities if the Certificateholder so notifies the Certificate Registrar in
writing at least five Business Days before the Payment Date. If appropriate
notice is not given by a Certificateholder, then distributions to that
Certificateholder shall be by check mailed to it at its address in the
Certificate Register.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Transaction Documents to which the Trust is to be a party and each other
document contemplated by the Transaction Documents in such form as the
Depositor shall approve, as evidenced conclusively by the Owner Trustee's
execution of it. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions permitted or
required of the Trust pursuant to the Transaction Documents. The Owner Trustee
is further authorized to take any action the Administrator recommends
regarding the Transaction Documents.
Section 6.02. General Duties.
The Owner Trustee shall discharge all of its responsibilities pursuant to
the Agreement and the other Transaction Documents to which the Trust is a
party and administer the Trust in the interest of the Certificateholders,
subject to the Transaction Documents and the Agreements. The Owner Trustee
shall be considered to have discharged its obligations under this Master Trust
Agreement and the other Transaction Documents to the extent the Administrator
has agreed in the Administration Agreement to perform any act or to discharge
any duty of the Owner Trustee or the Trust under the Agreement or any other
Transaction Document. The Owner Trustee shall not be liable for the failure of
the Administrator to carry out its obligations under the Administration
Agreement or the other Transaction Documents.
The Administrator shall prepare and file any federal, state, or local
income and franchise tax return for the Trust or any subtrust of the Trust as
well as any other applicable return and apply for a taxpayer identification
number on behalf of the Trust. If the Trust is required pursuant to an audit
or administrative proceeding or change in applicable regulations to file
federal, state, or local tax returns, the Administrator shall prepare and file
any tax returns required to be filed by the Trust or any subtrust of the
Trust. The Owner Trustee shall promptly sign the returns and deliver the
returns after signature to the Administrator and the returns shall be filed by
the Administrator.
Section 6.03. Action on Instruction.
(a) Subject to Article IV and in accordance with the Transaction
Documents, the Certificateholders of an affected Series may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Owner Trustee is not required to take any action under any
Agreement or any other Transaction Document if the Owner Trustee reasonably
determines, or is advised by counsel, that the action (i) is likely to result
in liability on the part of the Owner Trustee, (ii) is contrary to the terms
of the relevant Agreement or of any other Transaction Document, or (iii) is
contrary to law.
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(c) Whenever the Owner Trustee is (i) unable to decide between
alternative courses of action under any Agreement or any other Transaction
Document, (ii) unsure about the application of any provision of any Agreement
or any other Transaction Document or it appears to be in conflict with any
other applicable provision, or (iii) if any Agreement permits any
determination by the Owner Trustee or is silent or is incomplete about the
course of action that the Owner Trustee is required to take regarding a
particular set of facts, the Owner Trustee may give appropriate notice to the
Certificateholders requesting instruction and, if the Owner Trustee in good
faith follows any instructions it receives, the Owner Trustee shall not be
liable to the Certificateholders on account of its action or inaction. If the
Owner Trustee has not received appropriate instruction within ten days of the
notice (or within any shorter period necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking any action not
inconsistent with the Agreement or the other Transaction Documents that it
deems to be in the best interests of the Certificateholders, and shall have no
liability to the Certificateholders for its action or inaction.
(d) The Owner Trustee may enter into any amendment of any Transaction
Document as to which the Rating Agency Condition is satisfied, and when so
requested by the Certificateholders of a Series, the Owner Trustee shall enter
into any amendment of any related Transaction Documents:
(i) that does not impose further obligations or liabilities on the
Owner Trustee,
(ii) that the Credit Enhancer has consented to, and
(iii) as to which either the Rating Agency Condition is satisfied or
Holders of not less than 66K% of the aggregate Outstanding Amount of the
related Notes have consented.
Section 6.04. No Duties Except as Specified in the Trust Agreement or in
Instructions.
The Owner Trustee shall not have any duty to manage, make any payment on,
register, record, sell, dispose of, or otherwise deal with any Series Assets,
or to otherwise take or refrain from taking any action under any document
contemplated by any Agreement to which the Trust is a party, except as
expressly provided by the relevant Agreement or in any written instruction
received by the Owner Trustee under Section 6.03. No implied duties or
obligations shall be read into any Agreement or any other Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any Financing or Continuation Statement in any public office at any
time or otherwise to perfect or maintain the perfection of any security
interest or lien granted to it under the Sale and Servicing Agreement or to
prepare or file any filing with the Securities and Exchange Commission for the
Trust or to record any Agreement or any other Transaction Document. Wilmington
Trust Company, in its individual capacity, shall, at its own cost and expense,
promptly take all action necessary to discharge any liens on any part of any
Series Assets resulting from actions by, or claims against, Wilmington Trust
Company, in its individual capacity, that are not related to the ownership or
the administration of the Series Assets.
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Section 6.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of, or
otherwise deal with any part of any Series Assets, except as provided in the
relevant Agreement, pursuant to the other relevant Transaction Documents, and
in accordance with any instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section 6.06. Restrictions.
The Owner Trustee shall not take any action that is inconsistent with the
stated purposes of the Trust in Section 2.03. The Certificateholders, by their
acceptance of their Transferor Certificates, agree not to direct the Owner
Trustee to take action that would violate the related Agreement or any other
Transaction Document.
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts created by this Master Trust
Agreement and agrees to perform its duties under each Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of any Series Assets on the terms of the related Transaction
Documents. The Owner Trustee shall not be accountable under any Agreement or
any other Transaction Document under any circumstances except (i) for its own
willful misconduct or gross negligence or (ii) for the inaccuracy of any
representation or warranty contained in Section 7.03. In particular, but not
in limitation (and subject to the exceptions in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Owner Trustee.
(b) The Owner Trustee shall not be liable regarding any action taken or
omitted to be taken by it in accordance with instructions from the
Administrator or the Certificateholders.
(c) No provision of any Agreement or any other Transaction Document shall
require the Owner Trustee to expend or risk its funds or otherwise incur any
financial liability in the performance of any of its rights under any
Agreement or any other Transaction Document if the Owner Trustee has
reasonable grounds for believing that repayment of those funds or adequate
indemnity against the risk or liability is not reasonably assured to it.
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness under any of the Transaction Documents, including the principal
and interest on any Series of Notes.
(e) The Owner Trustee shall not be responsible for the validity or
sufficiency of this Master Trust Agreement or for its due execution by the
Depositor or for the form, character, genuineness, sufficiency, value, or
validity of any of the Series Assets, or for the validity or
17
sufficiency of the Transaction Documents, other than the certificate of
authentication on the Transferor Certificates.
(f) The Owner Trustee shall not be liable to any Noteholder or
Certificateholder, other than as expressly provided for in the related
Agreement or expressly agreed to in the other related Transaction Documents.
(g) The Owner Trustee shall not be liable for the default or misconduct
of the Depositor, the Indenture Trustee, the Administrator, or the Master
Servicer under any of the Transaction Documents or otherwise. The Owner
Trustee shall have no duty to perform the obligations of the Trust or the
Owner Trustee or any other person under any Agreement or the other Transaction
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indentures, the
Master Servicer under the Sale and Servicing Agreements, or the Depositor
under the Sale and Servicing Agreements, or any other person under any other
Transaction Document.
(h) The Owner Trustee need not exercise any of the rights or powers
vested in it by any Agreement, or to institute, conduct, or defend any
litigation under any Agreement or any other Transaction Document or otherwise,
at the request, order, or direction of the related Certificateholders, unless
one or more Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs and liabilities that may be
incurred by the Owner Trustee thereby.
(i) The right of the Owner Trustee to perform any discretionary act in
any Agreement or in any other Transaction Document shall not be construed as a
duty, and the Owner Trustee shall not be answerable other than for its gross
negligence or willful misconduct in the performance of any discretionary act.
Section 7.02. Furnishing Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly on
written request, copies of all reports, notices, requests, demands,
certificates, financial statements, and any other instruments furnished to the
Owner Trustee under the related Transaction Documents.
Section 7.03. Representations and Warranties.
Wilmington Trust Company hereby represents and warrants to the Depositor
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 Master Trust Agreement and each Series Supplement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Master Trust Agreement and each Series
Supplement, and this Master Trust Agreement and each Series Supplement will be
executed and delivered by one of its officers
18
who is duly authorized to execute and deliver this Master Trust Agreement and
each Series Supplement on its behalf.
(c) Neither the execution and delivery by it of this Master Trust
Agreement, nor the consummation by it of the transactions contemplated by this
Master Trust Agreement, nor compliance by it with any of the provisions of
this Master Trust Agreement will contravene any federal or Delaware law,
governmental rule, or regulation governing the banking or trust powers of the
Owner Trustee, or any judgment or order binding on it, or constitute a default
under its charter documents or bylaws.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall not be liable to anyone in acting under
this Master Trust Agreement on any signature, instrument, notice, resolution,
request, consent, order, certificate, report, opinion, bond, or other document
or paper believed by it to be genuine or believed by it to be signed by the
proper 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 the resolution has been duly adopted and that it is
in full force and effect. As to any fact or matter the method of determination
of which is not specifically prescribed in the relevant Agreement, the Owner
Trustee may for all purposes of the Agreement conclusively rely on a
certificate, signed by a Responsible Officer of the relevant party, as to the
fact or matter, and that 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 on it.
(b) In the exercise or administration of the trusts under any Agreement
and in the performance of its obligations under any Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys under agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of those
agents or attorneys if they were selected by the Owner Trustee with reasonable
care and (ii) may consult with counsel, accountants, and other skilled persons
it selects with reasonable care. The Owner Trustee shall not be liable for
anything done, suffered, or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants, or other persons.
Section 7.05. Not Acting in Individual Capacity.
Except as provided in this Article, (i) in acting in the capacity of
Owner Trustee pursuant to the trusts created by any Agreement, Wilmington
Trust Company acts solely as Owner Trustee under the Agreement and not in its
individual capacity, and (ii) all persons having any claim against the Owner
Trustee under the Agreement or any other Transaction Document shall look only
to the related Series Assets for payment or satisfaction of that claim.
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or
Payment Obligations.
The recitals contained in the Agreements and in the Transferor
Certificates (other than the signature and authentication of the Owner Trustee
on the Transferor Certificates) shall be
18
taken as the statements of the Depositor, and the Owner Trustee assumes no
responsibility for their correctness. The Owner Trustee makes no
representations as to the validity or sufficiency of any Agreement, of any
other Transaction Document, of the Transferor Certificates (other than the
signature and authentication of the Owner Trustee on the Transferor
Certificates), of any Mortgage Loan or related documents. The Owner Trustee
shall not have any responsibility for
(i) the legality, validity, and enforceability of any Mortgage Loan,
or
(ii) the perfection and priority of any security interest created in
any Mortgage Loan or the maintenance of that perfection and priority, or
(iii) the sufficiency of any Series Assets or their ability to
generate the payments to be distributed under the related Agreement or
the Noteholders under the related Indenture, or
(iv) the validity of the assignment of any Mortgage Loan to a
subtrust of the Trust, or of any intervening assignment, or
(v) the performance or enforcement of any Mortgage Loan, or
(vi) the compliance by the Depositor or the Master Servicer with any
warranty or representation made under any Transaction Document or in any
related document, or
(vii) any action of the Administrator, the Indenture Trustee, or the
Master Servicer or any subservicer taken in the name of the Owner
Trustee.
Section 7.07. Owner Trustee May Own Notes.
Wilmington Trust Company in its individual or any other capacity may
become the owner or pledgee of the Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee, and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses.
The Owner Trustee shall receive as compensation from the Sponsor for its
services under the Agreements fees that have been separately agreed on in a
fee agreement between the Sponsor and the Owner Trustee. The Owner Trustee
shall be entitled to be reimbursed by the Sponsor and the Trust for its other
reasonable expenses under the Agreements, including the reasonable
compensation, expenses, and disbursements of any agents, representatives,
experts, and counsel the Owner Trustee employs in connection with the exercise
and performance of its rights and obligations under the Agreements.
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Section 8.02. Indemnification.
The Sponsor shall be liable as primary obligor for, and shall indemnify
the Owner Trustee (in its individual and trust capacities) and its successors,
assigns, agents, and servants (collectively, the "Indemnified Parties")
against any liabilities, obligations, losses, damages, taxes, claims, actions,
and suits, and any reasonable costs, expenses, and disbursements (including
reasonable legal fees and expenses) of any kind whatsoever (collectively,
"Expenses") that may be incurred by or asserted against the Owner Trustee (in
its individual and trust capacities) or any other Indemnified Party in any way
arising out of the Agreements, the other Transaction Documents, the Series
Assets, the administration of the Series Assets, or the action or inaction of
the Owner Trustee under the Agreement, excepting only that the Sponsor shall
not indemnify an Indemnified Party against Expenses resulting from its willful
misconduct or negligence or the inaccuracy of any representation or warranty
made by it. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee and the termination of this
Master Trust Agreement. In any claim, action, or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice
of legal counsel shall be subject to the approval of the Sponsor, which
approval shall not be unreasonably withheld.
Section 8.03. Payments to Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this Article shall not
be a part of any Series Assets immediately after their payment. All amounts
then due to the Owner Trustee from the Trust, the Depositor, or the Master
Servicer under any Transaction Document shall be paid in full before any
payments to the Depositor or any holder of a Transferor Certificate.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) The Trust shall dissolve when each subtrust has made the final
distribution of all moneys or other property or proceeds of all Series Assets
in accordance with the terms of the relevant Transaction Documents, and
Article V. Each subtrust of the Trust shall dissolve when the subtrust makes
its final distribution of all moneys or other property or proceeds of its
Series Assets in accordance with the terms of its Transaction Documents, and
Article V. The bankruptcy, liquidation, or dissolution of any
Certificateholder shall not (x) terminate the relevant Agreement or the Trust,
(y) entitle that Certificateholder's legal representatives to obtain an
accounting or to take any action in any court for a partition or winding up of
any part of the relevant subtrust of the Trust or the related Series Assets,
or (z) otherwise affect the rights and obligations of the parties to the
relevant Agreement.
(b) Except as provided in Section 9.01(a), neither the Depositor nor the
Certificateholders may dissolve, revoke, or terminate the Trust.
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(c) On the winding up of the Trust and payment of all liabilities of the
Trust in accordance with Section 3808 of the Business Trust Statute, the Owner
Trustee shall cancel the Certificate of Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in
accordance with the provisions of the Business Trust Statute. The Owner
Trustee may rely on the directions of the Administrator with respect to
winding up the Trust. Thereupon, this Master Trust Agreement (other than
Article VIII) and the Trust shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the
trusts created by this Master Trust Agreement by giving written notice of
resignation to the Administrator and the Depositor. When it receives a notice
of resignation, the Administrator shall promptly appoint a successor Owner
Trustee in writing delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee has been so appointed
and assumed trusteeship within thirty days after the notice of resignation,
the resigning Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
The Administrator may remove the Owner Trustee if at any time the Owner
Trustee is legally unable to act, or an Insolvency Event occurs with respect
to the Owner Trustee. If the Administrator removes the Owner Trustee under the
authority of the preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee in writing delivered to the outgoing Owner Trustee
and to the successor Owner Trustee, and shall pay all fees and expenses owed
to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee shall not become effective until acceptance of
appointment by the successor Owner Trustee pursuant to Section 10.02 and
payment of all fees and expenses of the outgoing Owner Trustee. The
Administrator shall provide notice of any resignation or removal of the Owner
Trustee to each of the Rating Agencies, the Depositor, and the Credit
Enhancer.
Section 10.02. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.01 shall
execute and deliver to the Administrator, the Depositor, and to the
predecessor Owner Trustee an instrument accepting appointment as trustee under
this Master Trust Agreement, and thereupon the resignation or removal of the
predecessor Owner Trustee shall become effective. The successor Owner Trustee
shall become fully vested with all the rights and obligations of its
predecessor under this Master Trust Agreement, with like effect as if
originally named as Owner Trustee without any further act, deed, or
conveyance. The predecessor Owner Trustee shall promptly deliver to the
successor Owner Trustee all documents, statements, and monies held by it under
22
any Agreement. The Administrator and the predecessor Owner Trustee shall
execute and deliver any instruments and do anything else for fully and
certainly vesting and confirming in the successor Owner Trustee all rights and
obligations under any Agreement.
When a successor Owner Trustee accepts its appointment pursuant to this
Section, the Administrator shall mail notice of the change in trustee to the
Certificateholders, the Depositor, the Indenture Trustee, the Noteholders, the
Credit Enhancer, and the Rating Agencies. If the Administrator fails to mail
that notice within ten days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall mail that notice at the
expense of the Administrator.
The successor Owner Trustee shall file an amendment to the Certificate of
Trust with the Secretary of State of the State of Delaware identifying the
name and principal place of business in the State of Delaware of the successor
Owner Trustee.
Section 10.03. 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 is 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 under this
Master Trust Agreement without the execution or filing of any instrument or
any further act on the part of any of the parties to this Master Trust
Agreement, anything to the contrary notwithstanding. The Owner Trustee shall
mail notice of the merger or consolidation or other action to each Rating
Agency.
Section 10.04. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of the Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Series Assets may at any time be located, the Administrator and
the Owner Trustee acting jointly shall execute and deliver all instruments to
appoint persons approved by the Administrator and Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee, of all or
any part of any Series Assets, and to vest in that person, in that capacity,
such title to the Series Assets or any part thereof and, subject to the other
provisions of this Section, such rights and obligations as the Administrator
and the Owner Trustee consider appropriate. If the Administrator has not
joined in the appointment within fifteen days after the receipt by it of a
request so to do, the Owner Trustee alone may make the appointment. No notice
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.02.
Each separate trustee and co-trustee shall be appointed and act subject
to the following provisions and conditions:
(a) All rights and obligations conferred or imposed on the Owner Trustee
shall be conferred on and exercised or performed by the Owner Trustee and the
separate trustee or co-trustee jointly (the separate trustee or co-trustee is
not authorized to act separately without the
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Owner Trustee joining in the act), except to the extent that under applicable
law the Owner Trustee is incompetent or unqualified to perform the acts, in
which case those rights and obligations (including the holding of title to the
Series Assets or any portion of them in that jurisdiction) shall be exercised
and performed singly by the separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) No trustee under any Agreement shall be personally liable for any act
or omission of any other trustee under the Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request, or other writing given to the Owner Trustee shall be
considered 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 the relevant
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided in the
instrument of appointment, subject to the relevant Agreement, specifically
including every provision of the relevant Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Owner Trustee.
Each instrument of appointment shall be filed with the Owner Trustee and a
copy of it given to the Administrator.
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 with respect to the
relevant 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, and obligations shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
This Master Trust Agreement may be amended in any way by the Depositor
and the Owner Trustee, with the consent of any affected Certificateholder, but
only if the Rating Agency Condition is satisfied and the amendment would not
cause any adverse tax event for any Noteholder.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish a copy of the amendment or consent to the
Certificateholders, the Indenture Trustee, and each Rating Agency.
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Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause its filing with the Secretary of State of
the State of Delaware.
The Owner Trustee may, but shall not be obligated to, enter into any
amendment that affects the Owner Trustee's own rights or obligations under any
Agreement or otherwise.
In connection with the execution of any amendment to this Master Trust
Agreement, the Certificate of Trust, or any amendment of any other agreement
to which the Trust is a party, the Owner Trustee shall be entitled to receive
and conclusively rely upon an Opinion of Counsel to the effect that the
amendment is authorized or permitted by this Master Trust Agreement and the
Transaction Documents.
Section 11.02. No Legal Title to Series Assets in Certificateholders.
The Certificateholders shall not have legal title to any part of any
Series Assets. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest in the
related Series Assets only in accordance with Articles V and IX. No transfer,
by operation of law or otherwise, of any interest of the Certificateholders in
its ownership interest in any Series Assets shall operate to terminate the
related Agreement or the trusts under this Master Trust Agreement or entitle
any transferee to an accounting or to the transfer to it of legal title to any
part of any Series Assets.
Section 11.03. Limitations on Rights of Others.
The provisions of each Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the related Certificateholders, the Administrator,
and, to the extent expressly provided in this Master Trust Agreement, the
related Indenture Trustee and the related Noteholders, and nothing in this
Master Trust Agreement, whether express or implied, shall be construed to give
to any other person any legal or equitable interest in any Series Assets or
under this Master Trust Agreement.
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the relevant
Agreement, all notices shall be in writing and shall be considered given upon
receipt by the intended recipient, if to the Owner Trustee, addressed to the
Corporate Trust Office; if to the Depositor, addressed to CWABS, Inc., c/o
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Administration, telephone
number (000) 000-0000, facsimile number (000) 000-0000; or, as to each party,
at any other address designated by it in a written notice to each other party.
(b) Any notice required or permitted to be given to the
Certificateholders shall be given by first-class mail, postage prepaid, at the
addresses of the Certificateholders. Any notice so mailed within the time
prescribed in the relevant Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives the notice.
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Section 11.05. Severability.
Any provision of this Master Trust Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions hereof, and that prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable the provision in any other jurisdiction.
Section 11.06. Separate Counterparts.
This Master Trust Agreement may be executed by the parties to this Master
Trust Agreement in separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts shall together
constitute but one instrument.
Section 11.07. Successors and Assigns.
All covenants and agreements contained in this Master Trust Agreement
shall be binding on, and inure to the benefit of, each of the Depositor and
its permitted assignees, the Owner Trustee and its successors, and each
Certificateholder and any of its successors, all as provided in this Master
Trust Agreement. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind its successors.
Section 11.08. Nonpetition Covenant.
Notwithstanding any prior termination of any Agreement, the Depositor and
the Owner Trustee, by entering into the Agreement, and each related
Certificateholder, by accepting a Transferor Certificate, agree that they
shall not, before the date that is one year and one day after the termination
of the Agreement, file or participate in the filing of any petition against
the Trust that could cause the Trust to incur an Insolvency Event. Nothing in
this Master Trust Agreement shall prohibit the Owner Trustee from
participating in or filing proofs of claim in any such proceeding instituted
by any other person.
Section 11.09. No Recourse.
Each Certificateholder by accepting a Transferor Certificate acknowledges
that the Transferor Certificate represents the beneficial interest in the
related subtrust of the Trust only and does not represent interests in or
obligations of the Depositor, the Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee, or any Affiliate of any of them or any other
subtrust of the Trust and no recourse may be had against those parties or
their assets, except as may be expressly stated or contemplated in the
relevant Agreement, the other related Transaction Documents, or the Transferor
Certificates.
Section 11.10. Headings.
The headings of the various Articles and Sections in this Master Trust
Agreement are for convenience of reference only and shall not define or limit
any of the provisions of this Master Trust Agreement.
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Section 11.11. GOVERNING LAW.
THIS MASTER TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
Section 11.12. Rule 144A Information.
As long as any of the securities of any Series are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Administrator on behalf of the Trust shall provide to any Noteholder or
Certificateholder and to any prospective purchaser from any of them designated
by any of them on the request of the Noteholder, Certificateholder, or
prospective purchaser, any information required to be provided the holder or
prospective purchaser to satisfy the conditions of Rule 144A(d)(4) under the
Securities Act.
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IN WITNESS WHEREOF, the parties to this Master Trust Agreement have
caused this Master Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above written.
CWABS, INC.
Depositor
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: Vice President
WILMINGTON TRUST COMPANY
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
Master Servicer
With respect to Article VIII only
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
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EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF CWABS MASTER TRUST
This Certificate of Trust of CWABS Master Trust (the "Trust"), dated
August [__], 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.) (the
"Act").
1. Name. The name of the business trust formed hereby is CWABS Master
Trust.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company,
[________________], [_________], Delaware _____, Attention:
[________________].
3. Separate Series. Pursuant to Section 3806(b)(2) of the Act, the Trust
will issue one or more series of beneficial interests (that it calls
Subtrusts) having the rights and preferences specified in the governing
instrument of the Trust, as it may be amended from time to time (each a
"Series").
4. Notice of Limitation of Liability of Each Series. Pursuant to Section
3804(a) of the Act, the liabilities of each Series shall be limited such that
(a) the debts, liabilities, obligations, and expenses incurred, contracted
for, or otherwise existing with respect to a particular Series shall be
enforceable against the assets of the particular Series only, and not against
the assets of the Trust generally, or the assets of any other Series and (b)
none of the debts, liabilities, obligations, and expenses incurred, contracted
for, or otherwise existing with respect to the Trust generally any other
Series shall be enforceable against the assets of the particular Series.
5. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
Address: not in its individual capacity,
Xxxxxx Square North but solely as owner trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
By: ____________________________
Name:
Title:
A-1
