EXHIBIT 99.1
AMENDED AND RESTATED
TRUST AGREEMENT
between
MELLON BANK, N.A.
Seller
▇.▇. ▇▇▇▇▇▇ ACCEPTANCE CORPORATION I,
Depositor
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of March 23, 2001
Table of Contents
Page
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ARTICLE I.
Definitions
Section 1.1 Capitalized Terms............................................................................1
Section 1.2 Other Definitional Provisions................................................................3
Section 1.3 Action by or Consent of Noteholders and Certificateholders...................................4
ARTICLE II.
Organization
Section 2.1 Names........................................................................................4
Section 2.2 Office.......................................................................................5
Section 2.3 Purposes and Powers..........................................................................5
Section 2.4 Appointment of Owner Trustee.................................................................5
Section 2.5 Initial Capital Contribution of Trust Estate.................................................5
Section 2.6 Declaration of Trust.........................................................................6
Section 2.7 Liability....................................................................................6
Section 2.8 Title to Trust Property......................................................................6
Section 2.9 Situs of Trust...............................................................................6
Section 2.10 Representations and Warranties of the Seller and the Depositor...............................6
Section 2.11 Federal Income Tax Allocations...............................................................9
Section 2.12 Covenants of the Seller......................................................................9
Section 2.13 Covenants of the Certificateholders.........................................................10
Section 2.14 Investment Company..........................................................................11
ARTICLE III.
Certificates and Transfer of Interests
Section 3.1 Initial Ownership...........................................................................11
Section 3.2 The Certificates............................................................................11
Section 3.3 Authentication of Certificates..............................................................11
Section 3.4 Registration of Transfer and Exchange of Certificates.......................................12
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates...........................................12
Section 3.6 Persons Deemed Certificateholders...........................................................12
Section 3.7 Access to List of Certificateholders' Names and Addresses...................................12
Section 3.8 Maintenance of Office or Agency.............................................................13
Section 3.9 ERISA.......................................................................................13
Section 3.10 Restrictions on Transfer of Certificates....................................................13
Section 3.11 Acceptance of Obligations...................................................................14
Section 3.12 Payments on Certificates....................................................................15
ARTICLE IV.
Voting Rights and Other Actions
Section 4.1 Prior Notice to Holders with Respect to Certain Matters.....................................15
Section 4.2 Action by Certificateholders with Respect to Certain Matters................................16
Section 4.3 Action by Certificateholders with Respect to Bankruptcy.....................................16
Section 4.4 Restrictions on Certificateholders' Power...................................................16
Section 4.5 Majority Control............................................................................17
Section 4.6 Rights of Insurer...........................................................................17
Section 4.7 Separateness................................................................................17
ARTICLE V.
Certain Duties
Section 5.1 Accounting and Records to the Noteholders, Certificateholders, the Internal Revenue
Service and Others..........................................................................18
Section 5.2 Signature on Returns; Tax Matters Partner...................................................18
ARTICLE VI.
Authority and Duties of Owner Trustee
Section 6.1 General Authority...........................................................................19
Section 6.2 General Duties..............................................................................19
Section 6.3 Action upon Instruction.....................................................................19
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions..........................20
Section 6.5 No Action Except under Specified Documents or Instructions..................................20
Section 6.6 Restrictions................................................................................21
ARTICLE VII.
Concerning the Owner Trustee
Section 7.1 Acceptance of Trust and Duties..............................................................21
Section 7.2 Furnishing of Documents.....................................................................22
Section 7.3 Representations and Warranties..............................................................22
Section 7.4 Reliance; Advice of Counsel.................................................................23
Section 7.5 Not Acting in Individual Capacity...........................................................23
Section 7.6 Owner Trustee Not Liable for Certificates or Mortgage Loans.................................23
Section 7.7 Owner Trustee May Own Certificates and Notes................................................24
Section 7.8 Payments from Owner Trust Estate............................................................24
Section 7.9 Doing Business in Other Jurisdictions.......................................................24
ARTICLE VIII.
Compensation of Owner Trustee
Section 8.1 Owner Trustee's Fees and Expenses...........................................................24
Section 8.2 Indemnification.............................................................................25
Section 8.3 Payments to the Owner Trustee...............................................................25
Section 8.4 Non-recourse Obligations....................................................................25
ARTICLE IX.
Termination of Trust Agreement
Section 9.1 Termination of Trust Agreement..............................................................25
ARTICLE X.
Successor Owner Trustees and Additional Owner Trustees
Section 10.1 Eligibility Requirements for Owner Trustee..................................................27
Section 10.2 Resignation or Removal of Owner Trustee.....................................................27
Section 10.3 Successor Owner Trustee.....................................................................28
Section 10.4 Merger or Consolidation of Owner Trustee....................................................29
Section 10.5 Appointment of Co-Owner Trustee or Separate Owner Trustee...................................29
ARTICLE XI.
Miscellaneous
Section 11.1 Supplements and Amendments..................................................................30
Section 11.2 No Legal Title to Owner Trust Estate in Certificateholders..................................31
Section 11.3 Limitations on Rights of Others.............................................................31
Section 11.4 Notices.....................................................................................32
Section 11.5 Severability................................................................................32
Section 11.6 Separate Counterparts.......................................................................32
Section 11.7 Assignments; Insurer........................................................................32
Section 11.8 No Petition.................................................................................32
Section 11.9 No Recourse.................................................................................33
Section 11.10 Headings....................................................................................33
Section 11.11 Governing Law...............................................................................33
Section 11.12 Servicer....................................................................................33
Section 11.13 No Borrowing................................................................................33
Section 11.14 Nonpetition Covenant........................................................................33
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
AMENDED AND RESTATED TRUST AGREEMENT dated as of March 23,
2001 between MELLON BANK, N.A., a nationally chartered banking association
(the "Seller"), ▇.▇. ▇▇▇▇▇▇ ACCEPTANCE CORPORATION I, a Delaware corporation,
as depositor (the "Depositor") and WILMINGTON TRUST COMPANY, a Delaware
banking corporation as Owner Trustee (the "Owner Trustee"), which amends and
restates and supercedes in its entirety the Trust Agreement, dated March 1,
2001 between the Depositor and the Owner Trustee.
ARTICLE I.
Definitions
Section 1.1 Capitalized Terms. For the purposes of
this Agreement, the following terms shall have the meanings set forth below.
All other capitalized terms used herein but not defined shall have the
meanings set forth in the Indenture.
"Affiliate" shall mean with respect to any specified Person,
a Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, or owns,
directly or indirectly, 50% or more of, the Person specified.
"Agreement" shall mean this Amended and Restated Trust
Agreement, as the same may be amended and supplemented from time to time.
"Benefit Plan Investor" shall have the meaning assigned to
such term in Section 3.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code ss. 3801 et. seq. as the same may be amended
from time to time.
"Certificate" means a trust certificate evidencing the
beneficial ownership interest of a Certificateholder in the Trust,
substantially in the form of Exhibit A hereto.
"Certificate Account" shall mean the account designated as
such as established and maintained pursuant to the Indenture.
"Certificate of Trust" shall mean the Certificate of Trust
in the form of Exhibit B filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall
mean the register maintained and the registrar appointed pursuant to Section
3.4.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the
Owner Trustee, the principal corporate trust office of the Owner Trustee
located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, or at such other
address as the Owner Trustee may designate by notice to the
Certificateholders, the Insurer, the Depositor and the Seller, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor owner trustee will notify the Certificateholders, the
Insurer, the Depositor and the Seller).
"Definitive Certificates" shall mean Certificates issued in
certificated, fully registered form.
"Depositor" shall mean ▇.▇. ▇▇▇▇▇▇ Acceptance Corporation I
in its capacity as Depositor hereunder.
"ERISA" shall have the meaning assigned to such term in
Section 3.9.
"Expenses" shall have the meaning assigned to such term in
Section 8.2.
"Holder" or "Certificateholder" shall mean the Person in
whose name a Certificate is registered on the Certificate Register.
"Indemnification Agreement" shall mean the Indemnification
Agreement dated as of March 23, 2001 among the Insurer, JPMorgan, a division
of Chase Securities Inc., and Mellon Financial Markets LLC.
"Indemnified Parties" shall have the meaning assigned to
such term in Section 8.2.
"Indenture" shall mean the Indenture dated as of March 1,
2001, between the Trust and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Indenture
Trustee, as the same may be amended and supplemented from time to time.
"Indenture Trustee" shall mean, initially ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., in its capacity as indenture trustee, including its
successors in interest, until and unless a successor Person shall have become
the Indenture Trustee pursuant to the Sale and Servicing Agreement and
thereafter "Indenture Trustee" shall mean such successor Person.
"Instructing Party" shall have the meaning assigned to such
term in Section 6.3.
"Insurance Agreement" shall mean the Insurance and Indemnity
Agreement dated as of March 23, 2001 among the Insurer, the Seller, the Trust,
the Depositor, the Servicer and the Indenture Trustee.
"Insurer" shall mean Ambac Assurance Corporation, or its
successor in interest.
"Notes" shall mean any of the Notes issued pursuant to the
Indenture.
"Noteholder" shall mean the holder of a Note.
"Operative Documents" shall mean this Agreement, the
Certificate of Trust, the Sale and Servicing Agreement, the Indemnification
Agreement, the Insurance Agreement, the Indenture and the other documents and
certificates delivered in connection therewith.
"Owner Trust Estate" shall mean all right, title and
interest of the Trust in and to the property and rights assigned to the Trust
pursuant to Article II of the Sale and Servicing Agreement, all funds on
deposit from time to time in the Trust Accounts and the Certificate Account
and all other property of the Trust from time to time, including any rights of
the Owner Trustee and the Trust pursuant to the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as
owner trustee under this Agreement, and any successor Owner Trustee hereunder.
"Policy" shall mean the certificate guaranty insurance
policy with respect to the Notes, dated (#ABO446BE), issued by the Insurer to
the Indenture Trustee for the benefit of the Noteholders.
"Record Date" shall mean with respect to any Payment Date,
(i) in the case of the Certificates, the close of business on the last
Business Day immediately preceding such Payment Date and (ii) in the case of
the Notes as defined in the Indenture.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement among ▇.▇. ▇▇▇▇▇▇ Acceptance Corporation I, Mellon Home
Equity Line of Credit Trust 2001-1, as Issuer, Mellon Bank, N.A., as Seller,
Mellon Bank, N.A., as Servicer, and the Indenture Trustee, dated as of March
1, 2001, as the same may be amended and supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of
the State of Delaware.
"Security Majority" means a majority by principal amount of
the Noteholders so long as the Notes are outstanding and a majority by
Percentage Interest of the Certificateholders thereafter.
"Seller" shall mean Mellon Bank, N.A. in its capacity as
Seller hereunder.
"Servicer" shall mean Mellon Bank, N.A., a nationally
chartered banking association.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References
herein to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" or "Issuer" shall mean the trust established by this
Agreement.
"Trust Accounts" shall mean "Accounts" as defined in the
Indenture.
Section 1.2 Other Definitional Provisions. (a) Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
to them in the Sale and Servicing Agreement or, if not defined therein, in the
Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Agreement or in any such certificate or other document,
and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles as in effect on the date of this Agreement or any such certificate
or other document, as applicable. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
Section 1.3 Action by or Consent of Noteholders and
Certificateholders. Whenever any provision of this Agreement refers to action
to be taken, or consented to, by Noteholders or Certificateholders, such
provision shall be deemed to refer to the Certificateholder or Noteholder, as
the case may be, of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consent given, by Noteholders or
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or Certificateholders, any Note or Certificate
registered in the name of the Seller or any Affiliate thereof shall be deemed
not to be outstanding; provided, however that, solely for the purpose of
determining whether the Owner Trustee or the Indenture Trustee is entitled to
rely upon any such action or consent, only Notes or Certificates which the
Owner Trustee, or the Indenture Trustee, respectively, knows to be so owned
shall be so disregarded and provided, further that such limitation shall not
apply if the Seller or any Affiliate thereof owns 100% of the Notes or
Certificates, as applicable.
ARTICLE II.
Organization
Section 2.1 Name. There is hereby formed a trust to be
known as "Mellon Home Equity Line of Credit Trust 2001-1," 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 ▇▇▇ and be sued.
Section 2.2 Office. The office of the Trust shall be
in care of the Owner Trustee at the Corporate Trust Office or at such other
address as the Owner Trustee may designate by written notice to the
Certificateholders , the Insurer and the Seller.
Section 2.3 Purposes and Powers. The purpose of the
Trust is, and the Trust shall have the power and authority, to engage in the
following activities:
(i) to issue the Notes pursuant to the
Indenture and the Certificates pursuant to this Agreement,
and to sell the Notes;
(ii) with the proceeds of the sale of the
Notes, to pay the organizational, startup and transactional
expenses of the Trust and to pay the balance to the Seller
pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge,
mortgage and convey the Owner Trust Estate to the Indenture
Trustee on behalf of the Noteholders and for the benefit of
the Insurer and to hold, manage and distribute to the
Certificateholders pursuant to the terms of this Agreement
any portion of the Owner Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations
under the Operative Documents to which it is a party;
(v) to engage in those activities, including
entering into agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and
(vi) subject to compliance with the Operative
Documents, to engage in such other activities as may be
required in connection with conservation of the Owner Trust
Estate and the making of distributions to the
Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Operative Documents.
Section 2.4 Appointment of Owner Trustee. The Seller
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 and in
the Business Trust Statute.
Section 2.5 Initial Capital Contribution of Trust
Estate. The Depositor hereby assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be deposited in the Certificate Account. On or prior to the
Closing Date, the Owner Trustee will also, upon receipt thereof, acknowledge
on behalf of the Trust, receipt of the Mortgage Loans pursuant to the Sale and
Servicing Agreement. The Seller shall pay organizational expenses of the Trust
as they may arise.
Section 2.6 Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the
Operative Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. It is
the intention of the parties hereto that, solely for income tax purposes, the
Trust shall be treated as a security arrangement; provided, however, that in
the event Certificates are owned by more than one Certificateholder, it is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall then be treated as a partnership and that, unless
otherwise required by appropriate tax authorities, only after such time the
Trust will file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Trust as a
partnership for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and to the
extent not inconsistent herewith, in the Business Trust Statute with respect
to accomplishing the purposes of the Trust. The Owner Trustee shall file the
Certificate of Trust with the Secretary of State.
Section 2.7 Liability. No Holder shall have any
personal liability for any liability or obligation of the Trust.
Section 2.8 Title to Trust Property. (a) Legal title
to all of the Owner Trust Estate shall be vested at all times in 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.
(b) The Holders shall not have legal title to any part
of the Trust Property. The Holders shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in accordance
with Section 3.12 and Article IX. No transfer, by operation of law or
otherwise, of any right, title or interest by any Certificateholder of its
ownership interest in the Owner Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting
or to the transfer to it of legal title to any part of the Trust Property.
Section 2.9 Situs of Trust. The Trust will be located
and administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. Payments will be received by the Trust only in
Delaware or New York and payments will be made by the Trust only from Delaware
or New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee, the Servicer or any agent of the Trust from having
employees within or without the State of Delaware. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
Section 2.10 Representations and Warranties of the
Seller and the Depositor.
(a) The Seller makes the following representations and
warranties on which the Owner Trustee relies in accepting the Owner Trust
Estate in trust and issuing the Certificates and upon which the Insurer relies
in issuing the Policy.
(i) The Seller is duly organized and validly
existing as a nationally chartered banking association with
power and authority to own its properties and to conduct its
business as such properties are currently owned and such
business is presently conducted and is proposed to be
conducted pursuant to this Agreement and the Operative
Documents;
(ii) It is duly qualified to do business and
in good standing in each jurisdiction in which the nature of
its respective business, or the properties owned or leased
by it make such qualification necessary, and has obtained
all necessary licenses and approvals, in all jurisdictions
in which the ownership or lease of its property, the conduct
of its business and the performance of its obligations under
this Agreement and the Operative Documents requires such
qualification;
(iii) The Seller has the power and authority to
execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this
Agreement has been duly authorized by the Seller by all
necessary action. The Seller has duly executed this
Agreement and this Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable against the
Seller, in accordance with its terms;
(iv) To the best knowledge of the Seller, no
consent, license, approval or authorization or registration
or declaration with, any Person or with any governmental
authority, bureau or agency is required in connection with
the execution, delivery or performance of this Agreement and
the Operative Documents, except for such as have been
obtained, effected or made;
(v) The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the
charter or bylaws of the Seller, or any material indenture,
agreement or other instrument to which the Seller is a party
or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Operative Documents);
nor violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the
Seller of any court or of any Federal or state regulatory
body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties; and
(vi) There are no proceedings or
investigations pending or, to its knowledge threatened
against it before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality
having jurisdiction over it or its properties (A) asserting
the invalidity of this Agreement or any of the Operative
Documents, (B) seeking to prevent the issuance of the
Certificates or the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the
Operative Documents, (C) seeking any determination or ruling
that might materially and adversely affect its performance
of its obligations under, or the validity or enforceability
of, this Agreement or any of the Operative Documents, or (D)
seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Notes or the
Certificates.
(b) The Depositor makes the following representations
and warranties on which the Owner Trustee relies in accepting the Owner Trust
Estate in trust and issuing the Certificates and upon which the Insurer relies
in issuing the Policies.
(i) The Depositor is duly organized and
validly existing as a Delaware corporation with power and
authority to own its properties and to conduct its business
as such properties are currently owned and such business is
presently conducted and is proposed to be conducted pursuant
to this Agreement and the Operative Documents;
(ii) It is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in
which the ownership or lease of its property, the conduct of
its business and the performance of its obligations under
this Agreement and the Operative Documents requires such
qualification;
(iii) The Depositor has the corporate power and
authority to execute and deliver this 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 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 Agreement has been duly
authorized by the Depositor by all necessary corporate
action. The Depositor has duly executed this Agreement and
this Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable against the
Depositor, in accordance with its terms;
(iv) To the best knowledge of the Depositor,
no consent, license, approval or authorization or
registration or declaration with, any Person or with any
governmental authority, bureau or agency is required in
connection with the execution, delivery or performance of
this Agreement and the Operative Documents, except for such
as have been obtained, effected or made;
(v) The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the
certificate of trust of the Depositor, or any material
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
Operative 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; and
(vi) There are no proceedings or
investigations pending or, to its knowledge threatened
against it before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality
having jurisdiction over it or its properties (A) asserting
the invalidity of this Agreement or any of the Operative
Documents, (B) seeking to prevent the issuance of the
Certificates or the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the
Operative Documents, (C) seeking any determination or ruling
that might materially and adversely affect its performance
of its obligations under, or the validity or enforceability
of, this Agreement or any of the Operative Documents, or (D)
seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Notes or the
Certificates.
Section 2.11 Federal Income Tax Allocations. In the
event that the Trust is treated as a partnership for Federal income tax
purposes, net income of the Trust for any month as determined for Federal
income tax purposes (and each item of income, gain, loss, credit and deduction
entering into the computation thereof) shall be allocated to the extent of
available net income, among the Certificateholders as of the first Record Date
following the end of such month, in proportion to the Percentage Interest of
their Certificates on such Record Date.
Net losses of the Trust, if any, for any month as determined
for Federal income tax purposes (and each item of income, gain, loss, credit
and deduction entering into the computation thereof) shall be allocated among
the Certificateholders as of the first Record Date following the end of such
month in proportion to their Percentage Interest on such Record Date until the
principal balance of the Certificates is reduced to zero. The Seller is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly
reflect the economic income, gain or loss to the Certificateholders,
or as otherwise required by the Code.
Section 2.12 Covenants of the Seller. The Seller agrees
and covenants for the benefit of each Certificateholder, the Insurer and the
Owner Trustee, during the term of this Agreement, and to the fullest extent
permitted by applicable law, that:
(a) it shall not, for any reason, institute
proceedings for the Trust to be adjudicated a bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings against the
Trust, or file a petition seeking or consenting to reorganization or relief
under any applicable federal or state law relating to the bankruptcy of the
Trust, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a
substantial part of the property of the Trust or cause or permit the Trust to
make any assignment for the benefit of creditors, or admit in writing the
inability of the Trust to pay its debts generally as they become due, or
declare or effect a moratorium on the debt of the Trust or take any action in
furtherance of any such action;
(b) it shall obtain from each counterparty to each
Operative Document to which it or the Trust is a party and each other
agreement entered into on or after the date hereof to which it or the Trust is
a party, an agreement by each such counterparty that prior to the occurrence
of the event specified in Section 9.1(e) such counterparty shall not institute
against, or join any other Person in instituting against, it or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceedings under the laws of the United States or any state
of the United States; and
(c) it shall not, for any reason, withdraw or attempt to
withdraw from this Agreement, dissolve, institute proceedings for it to be
adjudicated insolvent, or consent to the institution of insolvency or
conservatorship proceedings against it, or file a petition seeking or
consenting to reorganization or relief under any applicable federal or state
law relating to insolvency, or consent to the appointment of a receiver,
liquidator, assignee, conservator, sequestrator (or other similar official) of
it or a substantial part of its property, or make any assignment for the
benefit of creditors, or admit in writing its inability to pay its debts
generally as they become due, or declare or effect a moratorium on its debt or
take any action in furtherance of any such action.
Section 2.13 Covenants of the Certificateholders. Each
Certificateholder agrees:
(a) to be bound by the terms and conditions of the
Certificates and of this Agreement, including any supplements or amendments
hereto and to perform the obligations of a Certificateholder as set forth
therein or herein, in all respects as if it were a signatory hereto. This
undertaking is made for the benefit of the Trust, the Owner Trustee, the
Insurer and all other Certificateholders present and future;
(b) to hereby appoint the Seller as such
Certificateholder's agent and attorney-in-fact to sign any federal income tax
information return filed on behalf of the Trust, if any, and agree that, if
requested by the Trust, it will sign such federal income tax information
return in its capacity as holder of an interest in the Trust. Each
Certificateholder also hereby agrees that in its tax returns it will not take
any position inconsistent with those taken in any tax returns that may be
filed by the Trust;
(c) if such Certificateholder is other than an
individual or other entity holding its Certificate through a broker who
reports securities sales on Form 1099B, to notify the Owner Trustee of any
transfer by it of a Certificate in a taxable sale or exchange, within 30 days
of the date of the transfer; and
(d) until the completion of the events specified in
Section 9.1(e), not to, for any reason, institute proceedings for the Trust or
the Seller to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or file
a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Seller or the Trust or a substantial part of
its property, or cause or permit the Seller or the Trust to make any
assignment for the benefit of its creditors, or admit in writing its inability
to pay its debts generally as they become due, or declare or effect a
moratorium on its debt or take any action in furtherance of any such action.
Except as provided in Section 2.13, and notwithstanding any
other provision to the contrary in this Agreement, no Certificateholder shall
be deemed to have adopted, be bound by, or succeed in any way to any
representation by, or duty of indemnification by or any other duty of, the
Seller, including those contained in Sections 2.10, 2.11, 2.12, 8.2 or
elsewhere herein.
Section 2.14 Investment Company. Neither the Seller,
the Depositor nor any Holder shall take any action that would cause the Trust
to become an "investment company" required to register under the Investment
Company Act of 1940, as amended.
ARTICLE III.
Certificates and Transfer of Interests
Section 3.1 Initial Ownership. Upon the formation of
the Trust by the contribution by the Depositor pursuant to Section 2.5, the
Owner Trustee, contemporaneously therewith, having full power, authority, and
authorization to do so, has executed, authenticated, dated, issued, and
delivered, in the name and on behalf of the Trust, to the order of the
Depositor, one or more Certificates representing in the aggregate a 100%
interest in the Trust, and has registered such Certificates pursuant to the
Depositor's instructions on the Certificate Register in the name of the
Seller. Such Certificates are duly authorized, validly issued, and entitled to
the benefits of this Agreement. For so long as the Seller shall own such 100%
interest in the Trust, the Seller shall be the sole beneficial owner of the
Trust. For so long as any Notes remaining outstanding, the Seller shall not
transfer its ownership interest in the Trust, in whole or in part, without the
Insurer's prior written consent.
Section 3.2 The Certificates. The Certificates shall
be issued in one or more Percentage Interests, all of which shall
collectively, for all outstanding Certificates equal an aggregate Percentage
Interest of 100% at all times. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of an authorized officer of the
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefit of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of authentication and delivery of such Certificates. A transferee
of a Certificate shall become a Certificateholder, and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder,
upon due registration of such Certificate in such transferee's name pursuant
to Section 3.4.
Section 3.3 Authentication of Certificates.
Concurrently with the initial sale of the Mortgage Loans to the Trust pursuant
to the Sale and Servicing Agreement, the Owner Trustee shall cause each
Certificate to be executed on behalf of the Trust, authenticated and delivered
to or upon the written order of the Seller, signed by its chairman of the
board, its president or any vice president, its treasurer or any assistant
treasurer without further corporate action by the Seller, in authorized
denominations. No Certificate shall entitle its holder to any benefit under
this Agreement, or shall be valid for any purpose, unless there shall appear
on such Certificate a certificate of authentication substantially in the form
set forth in Exhibit A, executed by the Owner Trustee, by manual signature;
such authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. All Certificates
shall be dated the date of their authentication. The Trust shall not issue any
other Certificate without the prior written consent of the Insurer.
Section 3.4 Registration of Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Owner Trustee
shall be the initial Certificate Registrar.
Section 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Certificate and
(b) there shall be delivered to the Certificate Registrar, the Owner Trustee
and the Insurer such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Certificate
shall have been acquired by a protected purchaser, the Owner Trustee on behalf
of the Trust shall execute and the Owner Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like class, tenor and denomination.
In connection with the issuance of any new Certificate under this Section, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 3.6 Persons Deemed Certificateholders. Every
Person by virtue of becoming a Certificateholder in accordance with this
Agreement and the rules and regulations of the Certificate Registrar shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and the Insurer and any agent of the Owner Trustee, the
Certificate Registrar and the Insurer, may treat the Person in whose name any
Certificate shall be registered in the Certificate Register as the owner of
such Certificate for the purpose of receiving distributions pursuant to the
Sale and Servicing Agreement and the Indenture and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or the
Insurer nor any agent of the Owner Trustee, the Certificate Registrar or the
Insurer shall be bound by any notice to the contrary.
Section 3.7 Access to List of Certificateholders'
Names and Addresses. The Owner Trustee shall furnish or cause to be furnished
to the Servicer, the Seller, the Indenture Trustee or the Insurer, within 15
days after receipt by the Owner Trustee of a request therefor from such Person
in writing, a list, of the names and addresses of the Certificateholders as of
the most recent Record Date. If three or more Holders of Certificates or one
or more Holders of Certificates evidencing not less than 25% by Percentage
Interest apply in writing to the Owner Trustee, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Certificateholders.
Each Holder, by receiving and holding a Certificate, shall be deemed to have
agreed not to hold any of the Seller, the Servicer, the Owner Trustee or the
Insurer or any agent thereof accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
Section 3.8 Maintenance of Office or Agency. The
Owner Trustee shall maintain in Wilmington, Delaware an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner
Trustee in respect of the Certificates and the Operative Documents may be
served. The Owner Trustee initially designates its Corporate Trust Office for
such purposes. The Owner Trustee shall give prompt written notice to the
Seller, the Certificateholders and the Insurer of any change in the location
of the Certificate Register or any such office or agency.
Section 3.9 ERISA. The Certificates may not be
acquired by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to the provisions of Title I of ERISA, (ii)
a plan as (as defined in Section 4975(e)(1) of the Code) that is subject to
Section 4975 of the Code, or (iii) any person acting on behalf of or using the
assets of a plan described in (i) or (ii) (each, a "Benefit Plan Investor")
above. By accepting and holding its beneficial ownership interest in its
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan Investor.
Section 3.10 Restrictions on Transfer of Certificates.
(a) The Certificates shall be assigned, transferred, exchanged, pledged,
financed, hypothecated or otherwise conveyed (collectively, for purposes of
this Section 3.10 and any other Section referring to the Certificates,
"transferred" or a "transfer") only in accordance with this Section 3.10.
(b) No transfer of a Certificate shall be made unless
such transfer is exempt from the registration requirements of the Securities
Act of 1933, as amended, and any applicable state securities laws or is made
in accordance with said Act and laws. Except for the initial issuance of the
Certificates to the Seller, the Owner Trustee shall require (i) the transferee
to execute an investment letter acceptable to and in form and substance
satisfactory to the Owner Trustee and the Insurer certifying to the Owner
Trustee and the Insurer the facts surrounding such transfer, which investment
letter shall not be an expense of the Owner Trustee or the Insurer, or (ii) if
the investment letter is not delivered, a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Owner Trustee, the
Insurer and the Seller that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor from
said Act or is being made pursuant to said Act, which Opinion of Counsel shall
not be an expense of the Owner Trustee, the Insurer or the Seller. The Holder
of a Certificate desiring to effect such transfer shall, and does hereby agree
to, indemnify the Seller, the Owner Trustee and the Insurer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) The Certificates and any interest therein shall not
be transferred except upon satisfaction of the following conditions precedent:
(i) the Person that acquires a Certificate shall (A) be organized and existing
under the laws of the United States of America or any state thereof or the
District of Columbia; (B) expressly assume, by an agreement supplemental
hereto, executed and delivered to the Owner Trustee, the performance of every
covenant and obligation of the Seller hereunder except for the covenants and
obligations contained in Sections 2.1, 2.2, 2.3, 2.4, 3.3 and 3.4 of the Sale
and Servicing Agreement, Section 7.1 of the Indenture and under the Credit
Line Agreements and the Mortgage Notes; (ii) the person that acquires a
Certificate shall deliver to the Owner Trustee, the Indenture Trustee and the
Insurer an Officer's Certificate stating that such transfer and such
supplemental agreement comply with this Section 3.10 and that all conditions
precedent provided by this subsection 3.10 have been complied with and an
Opinion of Counsel stating that such transfer and such supplemental agreement
comply with this Section 3.10 and that all conditions precedent provided by
this Section 3.10 have been complied with, and the Owner Trustee may
conclusively rely on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein and shall incur no
liability in so relying; (iii) the person that acquires a Certificate shall
deliver to the Owner Trustee and the Insurer a letter from each Rating Agency
confirming that its rating of the Notes, after giving effect to such transfer,
will not be reduced or withdrawn without regard to the Policy; (iv) the person
that acquires a Certificate shall deliver to the Owner Trustee and the Insurer
an Opinion of Counsel to the effect that (a) such transfer will not adversely
affect the treatment of the Notes after such transfer as debt for federal and
applicable state income tax purposes, (b) such transfer will not result in the
Trust being subject to tax at the entity level for federal or applicable state
tax purposes, (c) such transfer will not have any material adverse impact on
the federal or applicable state income taxation of a Noteholder and (d) such
transfer will not result in the arrangement created by this Agreement or any
"portion" of the Trust, being treated as a taxable mortgage pool as defined in
Section 7701(i) of the Code; (v) all filings and other actions necessary to
continue the perfection of the interest of the Trust in the Mortgage Loans and
the other property conveyed hereunder shall have been taken or made and (vi)
the prior written consent of the Insurer has been obtained, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, the
requirement set forth in subclause (i)(A) of this Section 3.10 shall not apply
in the event the Owner Trustee and the Insurer shall have received a letter
from each Rating Agency confirming that its rating of the Notes, after giving
effect to a proposed transfer to a Person that does not meet the requirement
set forth in subclause (i)(A), shall not be reduced or withdrawn without
regard to the Policy. Notwithstanding the foregoing, the requirements set
forth in this paragraph (c) shall not apply to the initial issuance of the
Certificates to Mellon Bank, N.A.
(d) Except for the initial issuance of the Certificates
to Mellon Bank, N.A., no transfer of a Certificate shall be made unless the
Owner Trustee and the Insurer shall have received a representation letter from
the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Owner Trustee and the Insurer, to the effect that such
transferee is not a Benefit Plan Investor, which representation letter shall
not be an expense of the Owner Trustee.
(e) No transfer or pledge of the Certificates shall
result in more than 98 other holders of Certificates.
Section 3.11 Acceptance of Obligations. The Seller
agrees to be bound by and to perform all the duties of the Seller set forth in
this Agreement.
Section 3.12 Payments on Certificates. The Holders of
the Certificates will be entitled to distributions on each Payment Date, as
provided in the Indenture.
ARTICLE IV.
Voting Rights and Other Actions
Section 4.1 Prior Notice to Holders 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, the
Indenture Trustee and the Insurer in writing of the proposed action and (i)
the Insurer shall have consented in writing thereto and (ii) 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, with the written consent of the Insurer, provided
alternative direction:
(a) 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 or unless such amendment would not materially and
adversely affect the interests of the Holders);
(b) the amendment of any Operative Document;
(c) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or, pursuant to
this Trust Agreement, of a successor Certificate Registrar or the consent to
the assignment by the Note Registrar, Paying Agent, Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this Trust
Agreement, as applicable;
(d) the consent to the calling or waiver of any default
under any Operative Document;
(e) the consent to the assignment by the Indenture Trustee
or Servicer of their respective obligations under any Operative Document;
(f) confess a judgment against the Trust;
(g) possess Trust assets or assign the Trust's right to
property for other than a Trust purpose;
(h) cause the Trust to lend any funds to any entity; or
(i) change the Trust's purpose and powers from those
enumerated in this Trust Agreement.
The Owner Trustee shall notify the Certificateholders and the Insurer in
writing of any appointment of a successor Note Registrar, or Certificate
Registrar within five Business Days thereof.
In addition, the Owner Trustee shall not (i) cause the Trust
to merge or consolidate with or into any other entity, or convey or transfer
all or substantially all of the Trust's assets to any other entity; (ii) cause
the Trust to incur, assume or guaranty any indebtedness other than as set
forth in this Trust Agreement or (iii) except as provided in Article IX
hereof, dissolve, terminate or liquidate the Trust in whole or in part.
Section 4.2 Action by Certificateholders with Respect
to Certain Matters. (a) The Owner Trustee shall not have the power, except
upon the written direction of the Insurer or in the event that an Insurer
Default shall have occurred and is continuing, the Security Majority in
accordance with the Operative Documents, to (i) remove the Servicer under the
Sale and Servicing Agreement and (ii) except as expressly provided in the
Operative Documents, sell the Mortgage Loans after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the Insurer or the
Security Majority, as the case may be, and the furnishing of indemnification
satisfactory to the Owner Trustee by the Certificateholders.
(b) Upon the written request of any Certificateholder
(a "Proposer"), the Owner Trustee shall distribute promptly to all
Certificateholders any request for action or consent of Certificateholders
submitted by such Proposer. The Owner Trustee shall provide a reasonable
method for collecting responses to such request and shall tabulate and report
the results thereof to the Certificateholders and the Seller. The Owner
Trustee shall have no responsibility or duty to determine if any such proposed
action or consent is permitted under the terms of this Agreement or applicable
law.
Section 4.3 Action by Certificateholders with Respect
to Bankruptcy. Until one year and one day following the day on which the Notes
have been paid in full, the Owner Trustee shall not have the power to, and
shall not commence any proceeding or other actions contemplated by Section
2.12(a) relating to the Trust without the prior written consent of the Insurer
(unless an Insurer Default shall have occurred and is continuing) or the
Security Majority upon an Insurer Default. Until one year and one day
following the day on which the Notes have been paid in full, all amounts due
to the Insurer under the Insurance Agreement have been paid in full, the
Policy has terminated and the Indenture Trustee has surrendered the Policy to
the Insurer, the Owner Trustee shall not have the power to, and shall not,
commence any proceeding or other actions contemplated by Section 2.12(a)
relating to the Trust without the prior written consent of all of the
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.4 Restrictions on Certificateholders' Power.
(a) The Certificate-holders shall not direct the Owner Trustee to take or
refrain from taking any action if such action or inaction would be contrary to
any obligation of the Trust or the Owner Trustee under this Agreement or any
of the Operative Documents or would be contrary to Section 2.3 or otherwise
contrary to law nor shall the Owner Trustee be obligated to follow any such
direction, if given.
(b) No Certificateholder shall have any right by virtue
or by availing itself of any provisions of this Agreement to institute any
suit, action, or proceeding in equity or at law upon or under or with respect
to this Agreement or any Operative Document, unless the Certificateholders are
the Instructing Party pursuant to Section 6.3 and unless a Certificateholder
previously shall have given to the Owner Trustee a written notice of default
and of the continuance thereof, as provided in this Agreement, and also unless
Certificateholders evidencing not less than 25% by Percentage Interest shall
have made written request upon the Owner Trustee to institute such action, suit
or proceeding in its own name as Owner Trustee under this Agreement and shall
have offered to the Owner Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Owner Trustee, for 30 days after its receipt of such notice, request,
and offer of indemnity, shall have neglected or refused to institute any such
action, suit, or proceeding, and during such 30-day period no request or waiver
inconsistent with such written request has been given to the Owner Trustee
pursuant to and in compliance with this Section or Section 6.3; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Owner Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb, or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner provided in this Agreement and for the equal,
ratable, and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 4.4, each and every
Certificateholder and the Owner Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 4.5 Majority Control. No Certificateholder
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust except as expressly provided in this Agreement.
Except as expressly provided herein, any action that may be taken by the
Certificateholders under this Agreement may be taken by the Holders of
Certificates evidencing not less than a majority of the Percentage Interests
in the Trust. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Certificateholders evidencing not less than a majority of the
Percentage Interests in the Trust at the time of the delivery of such notice.
Section 4.6 Rights of Insurer. Notwithstanding
anything to the contrary in the Operative Documents, without the prior written
consent of the Insurer (or if an Insurer Default shall have occurred and is
continuing, the prior written consent of the Security Majority) the Owner
Trustee shall not (i) remove the Servicer, other than in accordance with
Section 4.2, (ii) initiate any claim, suit or proceeding by the Trust or
compromise any claim, suit or proceeding brought by or against the Trust,
other than with respect to the enforcement of any Mortgage Loan or any rights
of the Trust thereunder, (iii) authorize the merger or consolidation of the
Trust with or into any other business trust or other entity (other than in
accordance with Section 3.10 of the Indenture), (iv) amend the Certificate of
Trust or (v) amend this Agreement in accordance with Section 11.1 of this
Agreement.
Section 4.7 Separateness. The Trust shall: (i) not
commingle its assets with those of any other entity; (ii) maintain its
financial and accounting books and records separate from those of any other
entity; (iii) maintain appropriate minutes or other records of all appropriate
actions and maintain books and records separate from any other entity; (iv)
conduct its own business in its own name; (v) except as expressly set forth
herein, pay its indebtedness, operating expenses and liabilities from its own
funds; (vi) enter into transactions with affiliates only on terms that are
commercially reasonable and on the same terms as would be available in an
arm's length transaction; (vii) not pay the indebtedness, operating expenses
and liabilities of any other entity; (viii) not hold out its credit as being
available to satisfy the obligation of any other entity; (ix) not make loans
to any other entity or buy or hold evidence of indebtedness issued by any
other entity (except for cash and investment-grade securities); (x) use
separate stationery, invoices, and checks bearing its own name; (xi) allocate
fairly and reasonably any overhead expenses that are shared with an affiliate,
including paying for office space and services performed by any employee of
any affiliate; (xii) not identify itself as a division of any other entity,
except for tax purposes as provided in Section 2.6 hereof; (xiii) hold itself
out as a separate identity; and (xiv) maintain adequate capital in light of
its contemplated business operation.
ARTICLE V.
Certain Duties
Section 5.1 Accounting and Records to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Subject to
Sections 6.1(a)(iii) and 6.1(b) of the Sale and Servicing Agreement, the
Seller shall (a) maintain (or cause to be maintained) the books of the Trust
on a calendar year basis on the accrual method of accounting, including,
without limitation, the allocations of net income under Section 2.11 hereof,
(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 (including Schedule K1, if applicable) to enable each
Certificateholder to prepare its Federal and state income tax returns, (c)
file or cause to be filed, if necessary, such tax returns relating to the
Trust (including a partnership information return, Form 1065), and direct the
Owner Trustee or the Servicer, as the case may be, to make such elections as
may from time to time be required or appropriate under any applicable state or
Federal statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a branch, or if applicable, as a partnership, for Federal
income tax purposes and (d) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.1(b)(ii) of the Sale and
Servicing Agreement with respect to income or distributions to
Certificateholders and the appropriate forms relating thereto. The Owner
Trustee or the Servicer, as the case may be, shall make all elections pursuant
to this Section as directed in writing by the Seller. The Owner Trustee shall
sign all tax information returns presented to it in final execution form, if
any, filed pursuant to this Section 5.1 and any other returns as may be
required by law, and in doing so shall rely entirely upon, and shall have no
liability for information provided by, or calculations provided by, the Seller
or the Servicer. The Trust shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect to
the Mortgage Loans. The Trust shall not make the election provided under
Section 754 of the Code.
Section 5.2 Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.1 and in the event that the Trust
is characterized as a partnership, the Owner Trustee shall sign on behalf of
the Trust the tax returns of the Trust presented to it in final execution
form, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the Seller, as
agent, on behalf of the Certificateholders.
(b) In the event that the Trust is characterized as a
partnership, the Seller shall be the "tax matters partner" of the Trust
pursuant to the Code.
ARTICLE VI.
Authority and Duties of Owner Trustee
Section 6.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Operative Documents to
which the Trust is named as a party and each certificate or other document
attached as an exhibit to or contemplated by the Operative Documents to which
the Trust is named as a party and any amendment thereto, in each case, in such
form as the Seller shall approve as evidenced conclusively by the Owner
Trustee's execution thereof, and on behalf of the Trust, to direct the
Indenture Trustee to authenticate and deliver Notes in the aggregate principal
amount of $669,000,000. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Operative Documents. The Owner Trustee is further
authorized from time to time to take such action as the Instructing Party
recommends with respect to the Operative Documents so long as such activities
are consistent with the terms of the Operative Documents.
Section 6.2 General Duties. It shall be the duty of
the Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and to administer the
Trust in the interest of the Holders, subject to the Operative Documents and
in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Operative Documents to the extent the
Servicer has agreed in the Sale and Servicing Agreement to perform any act or
to discharge any duty of the Trust or the Owner Trustee hereunder or under any
Operative Document, and the Owner Trustee shall not be liable for the default
or failure of the Servicer to carry out its obligations under the Sale and
Servicing Agreement.
Section 6.3 Action upon Instruction. (a) Subject to
Article IV, the Insurer (so long as an Insurer Default shall not have occurred
and be continuing) or the Certificateholders (if an Insurer Default shall have
occurred and be continuing) (the "Instructing Party") shall have the exclusive
right to direct the actions of the Owner Trustee in the management of the
Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Operative Document. The Instructing Party
shall not instruct the Owner Trustee in a manner inconsistent with this
Agreement or the Operative Documents.
(b) The Owner Trustee shall not be required to take any
action hereunder or under any Operative Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Operative Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of
this Agreement or any Operative Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Instructing Party requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Instructing Party received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Operative Documents, as it shall deem
to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to
the application of any provision of this Agreement or any Operative Document
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Instructing Party requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or
the Operative Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
Section 6.4 No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record,
sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any
Operative Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or file
any Commission filing for the Trust or to record this Agreement or any
Operative Document. The Owner Trustee nevertheless agrees that it will, at its
own cost and expense, promptly take all action as may be necessary to
discharge any Liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee (solely in its individual
capacity) and that are not related to the ownership or the administration of
the Owner Trust Estate.
Section 6.5 No Action Except under Specified Documents
or Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) in accordance with the
Operative Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 6.3.
Section 6.6 Restrictions. The Owner Trustee shall not
take any action (a) that is inconsistent with the purposes of the Trust set
forth in Section 2.3 or (b) that, to the actual knowledge of the Owner
Trustee, would result in the Trust's becoming taxable as a corporation or a
publicly traded partnership for Federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
ARTICLE VII.
Concerning the Owner Trustee
Section 7.1 Acceptance of Trust and Duties. The Owner
Trustee accepts the trust hereby created and agrees to perform its duties
hereunder with respect to such trust but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of
the Operative Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Operative Document under any
circumstances, except (i) for its own willful misconduct, bad faith or gross
negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by the Owner Trustee in its
individual capacity, (iii) for liabilities arising from the failure of the
Owner Trustee to perform obligations expressly undertaken by it in the last
sentence of Section 6.4 hereof, (iv) for any investments issued by the Owner
Trustee or any branch or affiliate thereof in its commercial capacity or (v)
for taxes, fees or other charges on, based on or measured by, any fees,
commissions or compensation received by the Owner Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any error
of judgment, not constituting gross negligence, made by a Responsible Officer
of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect
to any action taken or omitted to be taken by it if such action or omission is
in accordance with the instructions of the Instructing Party, the Seller, the
Servicer or any Certificateholder pursuant to the terms hereof;
(c) no provision of this Agreement or any Operative
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or
powers hereunder or under any Operative Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Operative
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or
in respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or in
respect of the validity or sufficiency of the Operative Documents, other than
the certificate of authentication on the Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty or obligation to the
Seller, the Insurer, Indenture Trustee, any Certificateholder, other than as
expressly provided for herein and in the Operative Documents;
(f) the Owner Trustee shall not be liable for the
default or misconduct of the Seller, the Insurer, the Indenture Trustee, or
the Servicer under any of the Operative Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations under
this Agreement or the Operative Documents that are required to be performed by
the Seller under this Agreement, by the Indenture Trustee under the Indenture
or the Servicer under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise
or in relation to this Agreement or any Operative Document, at the request,
order or direction of the Instructing Party or any of the Certificateholders,
unless such Instructing Party or Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or thereby.
The right of the Owner Trustee to perform any discretionary act enumerated in
this Agreement or in any Operative Document shall not be construed as a duty,
and the Owner Trustee shall not be answerable for other than its negligence,
bad faith or willful misconduct in the performance of any such act.
Section 7.2 Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Operative Documents.
Section 7.3 Representations and Warranties. Wilmington
Trust Company hereby represents and warrants, in its individual capacity, to
the Seller, the Insurer and the Holders (which shall have relied on such
representations and warranties in issuing the Policy), that:
(a) It is a Delaware banking corporation, duly
organized and validly existing in good standing under the laws of the State of
Delaware. It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of
this Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware state law, governmental rule or regulation
governing its banking or trust powers 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.
Section 7.4 Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the Operative Documents, the Owner Trustee (i) may act directly
or through its agents or attorneys pursuant to agreements entered into with
any of them, and (ii) may consult with counsel, accountants and other skilled
persons to be selected with reasonable care and employed by it. The Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion not
contrary to this Agreement or any Operative Document.
Section 7.5 Not Acting in Individual Capacity. Except
as provided in this Agreement, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Operative
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section 7.6 Owner Trustee Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates
(other than the signature and countersignature of the Owner Trustee on the
Certificates) shall be taken as the statements of the Seller and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Operative Document or of the Certificates (other than the
signature and countersignature of the Owner Trustee on the Certificates) or
the Notes (other than the signature of the Owner Trustee on the Notes), or of
any Mortgage Loan or related documents. The Owner Trustee shall at no time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage Loan, or the perfection and
priority of any security interest created by any Mortgage Loan or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments
to be distributed to Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without limitation: the existence,
condition and ownership of any Mortgage Loan; the existence and enforceability
of any insurance thereon; the existence and contents of any Mortgage Loan on
any computer or other record thereof; the validity of the assignment of any
Mortgage Loan to the Trust or of any intervening assignment; the completeness
of any Mortgage Loan; the performance or enforcement of any Mortgage Loan; the
compliance by the Seller, the Servicer or any other Person with any warranty
or representation made under any Operative Document or in any related document
or the accuracy of any such warranty or representation or any action of the
Indenture Trustee or the Servicer or any Sub-Servicer taken in the name of the
Owner Trustee.
Section 7.7 Owner Trustee May Own Certificates and
Notes. Subject to the provisions of Section 3.1 hereof, the Owner Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Seller, the Indenture Trustee and
the Servicer in banking transactions with the same rights as it would have if
it were not Owner Trustee.
Section 7.8 Payments from Owner Trust Estate. All
payments to be made by the Owner Trustee under this Agreement or any of the
Operative Documents to which the Trust or the Owner Trustee is a party shall
be made only from the income and proceeds of the Owner Trust Estate and only
to the extent that the Owner Trust shall have received income or proceeds from
the Owner Trust Estate to make such payments in accordance with the terms
hereof. Wilmington Trust Company, or any successor thereto, in its individual
capacity, shall not be liable for any amounts payable under this Agreement or
any of the Operative Documents to which the Trust or the Owner Trustee is a
party.
Section 7.9 Doing Business in Other Jurisdictions.
Notwithstanding anything contained to the contrary, neither Wilmington Trust
Company or any successor thereto, nor the Owner Trustee shall be required to
take any action in any jurisdiction other than in the State of Delaware if the
taking of such action will, even after the appointment of a co-trustee or
separate trustee in accordance with Section 10.5 hereof, (i) require the
consent or approval or authorization or order of or the giving of notice to,
or the registration with or the taking of any other action in respect of, any
state or other governmental authority or agency of any jurisdiction other than
the State of Delaware; (ii) result in any fee, tax or other governmental
charge under the laws of the State of Delaware becoming payable by Wilmington
Trust Company (or any successor thereto); or (iii) subject Wilmington Trust
Company (or any successor thereto) to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by Wilmington
Trust Company (or any successor thereto) or the Owner Trustee, as the case may
be, contemplated hereby.
ARTICLE VIII.
Compensation of Owner Trustee
Section 8.1 Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Seller and the Owner Trustee, and the Owner Trustee shall be entitled to be
reimbursed by the Seller for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the Operative Documents.
Section 8.2 Indemnification. The Seller shall be
liable as primary obligor for, and the Servicer pursuant to the Sale and
Servicing Agreement shall be the secondary obligor for, and shall indemnify
the Owner Trustee (in its individual and trust capacities) and its officers,
directors, successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, "Expenses") which
may (in its trust or individual capacities) at any time be imposed on,
incurred by, or asserted against the Owner Trustee or any Indemnified Party in
any way relating to or arising out of this Agreement, the Operative Documents,
the Owner Trust Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee hereunder, except only that the Seller
shall not be liable for or required to indemnify the Owner Trustee from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.1. The indemnities contained in this Section and
the rights under Section 8.1 shall survive the resignation or termination of
the Owner Trustee or the termination of this Agreement. In any event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Seller which approval shall not be unreasonably withheld.
Section 8.3 Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article VIII shall be deemed not to
be a part of the Owner Trust Estate immediately after such payment.
Section 8.4 Non-recourse Obligations. Notwithstanding
anything in this Agreement or any Operative Document, the Owner Trustee agrees
in its individual capacity and in its capacity as Owner Trustee for the Trust
that all obligations of the Trust to the Owner Trustee individually or as
Owner Trustee for the Trust shall be recourse to the Owner Trust Estate only
and specifically shall not be recourse to the assets of any Certificateholder.
ARTICLE IX.
Termination of Trust Agreement
Section 9.1 Termination of Trust Agreement. (a) This
Agreement and the Trust shall terminate and be of no further force or effect
upon the later of (i) the maturity or other liquidation of the last Mortgage
Loan (including the redemption by the Servicer at its option of the corpus of
the Trust as described in Section 10.1(b) and Section 10.1(c) of the
Indenture) and the subsequent distribution of amounts in respect of such
Mortgage Loans as provided in the Operative Documents, (ii) the payment to
Certificateholders of all amounts required to be paid to them pursuant to this
Agreement and the payment to the Insurer of all amounts payable or
reimbursable to it pursuant to the Sale and Servicing Agreement and the
Insurance Agreement and (iii) the termination of the Indenture and the
Insurance Agreement; provided, however, that the rights to indemnification
under Section 8.2 and the rights under Section 8.1 shall survive the
termination of the Trust. The Servicer shall promptly notify the Owner Trustee
and the Insurer of any prospective termination pursuant to this Section 9.1.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in clause (a), neither the
Seller nor any other Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying
the Payment Date upon which the Certificateholders shall surrender their
Certificates to the Indenture Trustee for payment of the final distribution
and cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such redemption from the Servicer given pursuant to Section 8.6(c)(xii) of the
Sale and Servicing Agreement, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Indenture
Trustee therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Indenture Trustee therein specified. The
Owner Trustee shall give such notice to the Certificate Registrar (if other
than the Owner Trustee) and the Indenture Trustee at the time such notice is
given to Certificateholders. Upon presentation and surrender of the
Certificates, the Indenture Trustee shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 8.6(b)(xi) of the Indenture.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed, subject to
applicable escheat laws, by the Owner Trustee to the Seller and Holders shall
look solely to the Seller for payment.
(d) Any funds remaining in the Trust after funds for
final distribution have been distributed or set aside for distribution shall
be distributed by the Owner Trustee to the Seller.
(e) Notwithstanding any other provision to the contrary
herein, the Trust shall not dissolve or liquidate so long as any Notes are
outstanding.
(f) 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 Secretary of State
in accordance with the provisions of Section 3810 of the Business Trust
Statute.
ARTICLE X.
Successor Owner Trustees and Additional Owner Trustees
Section 10.1 Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times be a corporation (i) satisfying
the provisions of Section 3807(a) of the Business Trust Statute; (ii)
authorized to exercise corporate trust powers; (iii) having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by Federal or State authorities; (iv) having (or having a parent which has) a
rating of at least Baa3 by Moody's or A-1 by Standard & Poor's or being
otherwise acceptable to the Rating Agencies; and (v) acceptable to the Insurer
in its sole discretion. If such corporation shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in Section 10.2.
Section 10.2 Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Seller, the Insurer and
the Servicer. Upon receiving such notice of resignation, the Seller shall
promptly appoint a successor Owner Trustee, meeting the qualifications set
forth in Section 10.1 herein, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee, provided that the Seller shall have
received written confirmation from each of the Rating Agencies that the
proposed appointment will not result in an increased capital charge to the
Insurer by either of the Rating Agencies. 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 or the
Insurer may petition any court of competent jurisdiction for the appointment
of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of Section 10.1 and shall fail to resign
after written request therefor by the Seller, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then a majority of the Certificateholders with
the consent of the Insurer (so long as no Insurer Default shall have occurred
and is continuing) may remove the Owner Trustee. If a majority of the
Certificateholders shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Seller shall promptly appoint a successor
Owner Trustee acceptable to the Insurer, meeting the qualifications set forth
in Section 10.1 herein, by written instrument, in triplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so removed,
one copy to the Insurer and one copy to the successor Owner Trustee and the
Seller shall pay all fees owed to the outgoing Owner Trustee, if not
previously paid by the Trust.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.3 and payment of all reasonable
fees and expenses owed to the outgoing Owner Trustee. The Servicer shall
provide written notice of such resignation or removal of the Owner Trustee to
each of the Rating Agencies and the Insurer.
Notwithstanding any other provision of this Agreement, and
in addition to any other method of removal of the Owner Trustee contained
herein, upon a proposal made pursuant to Section 4.2(b) and the subsequent
consent of Certificateholders representing no less than 66-2/3% of the
Percentage Interests in the Trust, the Owner Trustee may be removed as Owner
Trustee, subject to the consent of the Insurer (so long as no Insurer Default
shall have occurred and is continuing), which consent is not to be
unreasonably withheld. In the event the Owner Trustee is removed pursuant to
this paragraph, the provisions of this Agreement, including Article X herein,
shall apply as if the Owner Trustee had resigned hereunder.
Section 10.3 Successor Owner Trustee. Any successor
Owner Trustee appointed pursuant to Section 10.2 shall execute, acknowledge
and deliver to the Seller, the Servicer, the Insurer and to its predecessor
Owner Trustee an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Owner Trustee
shall become effective and such successor Owner Trustee, without any further
act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Seller and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor Owner
Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Servicer shall mail notice of the successor of
such Owner Trustee to all Certificateholders, the Indenture Trustee, the
Insurer, and the Noteholders. If the Servicer shall fail to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the
expense of the Servicer.
The successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State reflecting the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
Section 10.4 Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the successor of the
Owner Trustee hereunder, provided such corporation shall be eligible pursuant
to Section 10.1, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided further that the Owner Trustee shall mail
notice of such merger or consolidation to the Rating Agencies and the Insurer.
Section 10.5 Appointment of Co-Owner Trustee or
Separate Owner Trustee. Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Owner Trust Estate or any Mortgaged
Property may at the time be located, the Servicer and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee and the Insurer to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Owner Trust Estate, and to vest
in such Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Servicer and the Owner Trustee
may consider necessary or desirable. If the Servicer shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Owner Trustee subject to the approval of the Insurer (which approval shall
not be unreasonably withheld) shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section 10.1
and no notice of the appointment of any co-trustee or separate trustee shall
be required pursuant to Section 10.3, except that notice to and written
consent of, the Insurer shall be required for the 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:
(i) all rights, powers, duties and
obligations conferred or imposed upon the Owner Trustee
shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the
Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or
any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Servicer and the Owner Trustee acting
jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee and a copy thereof given to
the Servicer and the Insurer.
Any separate trustee or co-trustee may at any time appoint
the Owner Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
ARTICLE XI.
Miscellaneous
Section 11.1 Supplements and Amendments. (a) This
Agreement may be amended by the Seller and the Owner Trustee, with the prior
written consent of the Insurer (so long as no Insurer Default shall have
occurred and is continuing) and prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders (i) to
cure any ambiguity or defect or (ii) to correct, supplement or modify any
provisions in this Agreement; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel which may be based upon a certificate of
the Servicer, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to
time, with the prior written consent of the Insurer (so long as no Insurer
Default shall have occurred and is continuing) by the Seller and the Owner
Trustee, with prior written notice to the Rating Agencies, and, to the extent
such amendment materially and adversely affects the interests of the
Noteholders, with the consent of the Noteholders evidencing not less than a
majority of the Outstanding Amount of the Notes and, the consent of the
Certificateholders evidencing not less than a majority of the Percentage
Interests in the Trust (which consent of any Holder of a Certificate or Note
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate or Note and of any Certificate or Note issued upon
the transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Certificate or Note) for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that, subject to
the express rights of the Insurer under the Operative Documents, no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Mortgage Loans
or distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage
of the Outstanding Amount of the Notes and the Certificates, the Holders of
which are required to consent to any such amendment, without the consent of
the Holders of all the outstanding Notes or Holders of all outstanding
Certificates, as applicable.
Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to the Insurer, to each Certificateholder and the
Indenture Trustee.
It shall not be necessary for the Depositor to consent to or
execute any amendment or for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Agreement or in any other Operative Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust, the
Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or
the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise. The Owner Trustee shall furnish copies of any such
amendments to the Rating Agencies.
Section 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their ownership interest therein only in
accordance with Section 3.12 and Article IX. No transfer, by operation of law
or otherwise, of any right, title or interest of the Certificateholders to and
in their ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
Section 11.3 Limitations on Rights of Others. Except
for Section 11.7, the provisions of this Agreement are solely for the benefit
of the Owner Trustee, the Seller, the Certificateholders, the Servicer and, to
the extent expressly provided herein, the Insurer, the Indenture Trustee and
the Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 11.4 Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing
and shall be deemed given upon receipt personally delivered, delivered by
overnight courier or mailed first class mail or certified mail, in each case
return receipt requested, and shall be deemed to have been duly given upon
receipt, if to the Owner Trustee, addressed to the Corporate Trust Office; if
to the Seller, addressed to Mellon Bank, N.A., One Mellon Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Asset Backed Finance, AIM 151-0410,
addressed to Insurer, Ambac Assurance Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance Department - MBS, Telecopy
No.:▇▇▇-▇▇▇-▇▇▇▇, Confirmation No.: 212-668-0340, if to the Depositor,
addressed to ▇.▇. ▇▇▇▇▇▇ Acceptance Corporation I, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
Section 11.5 Severability. Any provision of this Agreement
that is prohibited or unenforceable in any 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 11.6 Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 11.7 Assignments; Insurer. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. This Agreement shall also inure
to the benefit of the Insurer for so long as an Insurer Default shall not have
occurred and be continuing. Without limiting the generality of the foregoing,
all covenants and agreements in this Agreement which confer rights upon the
Insurer shall be for the benefit of and run directly to the Insurer, and the
Insurer shall be entitled to rely on and enforce such covenants, subject,
however, to the limitations on such rights provided in this Agreement and the
Operative Documents. The Insurer may disclaim any of its rights and powers
under this Agreement (but not its duties and obligations under the Policy)
upon delivery of a written notice to the Owner Trustee.
Section 11.8 Express Agreement. With respect to the
Insurer, the Indenture Trustee and the Noteholders, the Owner Trustee
undertakes to perform or observe only such of the covenants and obligations of
the Owner Trustee as are expressly set forth in this Agreement, and no implied
covenants or obligations with respect to the Insurer, the Indenture Trustee or
the Noteholders shall be read into this Agreement or the other Operative
Agreements against the Owner Trustee. The Owner Trustee shall not be deemed to
owe any fiduciary duty to the Insurer, the Indenture Trustee or the
Noteholders, and shall not be liable to any such person other than as a result
of the gross negligence or willful misconduct of the Owner Trustee in the
performance of its express obligations under this Agreement.
Section 11.9 No Petition. The Owner Trustee (in its
individual capacity and as Owner Trustee), by entering into this Agreement,
each Certificateholder, by accepting a Certificate, and the Indenture Trustee
and each Noteholder by accepting the benefits of this Agreement, hereby
covenants and agrees 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, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law.
Section 11.10 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 Servicer, the Seller, the Owner
Trustee, the Indenture Trustee, the Insurer or any Affiliate thereof and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Certificates or the
Operative Documents.
Section 11.11 Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
Section 11.12 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.13 Servicer. The Servicer is authorized to
prepare, or cause to be prepared, execute and deliver on behalf of the Trust
all such documents, reports, filings, instruments, certificates and opinions
as it shall be the duty of the Trust or Owner Trustee to prepare, file or
deliver pursuant to the Operative Documents. Upon written request, the Owner
Trustee shall execute and deliver to the Servicer a limited power of attorney
appointing the Servicer the Trust's agent and attorney-in-fact to prepare, or
cause to be prepared, execute and deliver all such documents, reports,
filings, instruments, certificates and opinions.
Section 11.14 No Borrowing. The Trust shall not
issue, incur, assume, guarantee or otherwise become liable, directly or
indirectly, for any Indebtedness except for (i) the Notes, (ii) obligations
owing from time to time to the Insurer under the Insurance Agreement and (iii)
any other Indebtedness permitted by or arising under the Operative Documents
except that the Trust shall not incur any Indebtedness that would cause it, or
any portion thereof, to be treated as a "taxable mortgage pool" under Section
7701(i) of the Code. The proceeds of the Notes shall be used exclusively to
fund the Trust's purchase of the Mortgage Loans and the other assets specified
in the Sale and Servicing Agreement and to pay the Trust's organizational,
transactional and start-up expenses.
Section 11.15 Nonpetition Covenant. (a) Until one year
plus one day shall have elapsed since the full discharge of all obligations
under the Indenture with respect to Noteholders in accordance with its terms,
neither the Seller or Depositor nor any assignee of the Seller or Depositor
shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Trust
under any federal or state bankruptcy, insolvency or similar law or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Trust without the
consent of the Owner Trustee.
(b) So long as Notes remain outstanding, no voluntary petition for
the purpose of commencing or sustaining a case against the Trust under any
federal or state bankruptcy, insolvency or similar law shall be filed
without the consent of the Owner Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY, as
Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Financial Services Officer
MELLON BANK, N.A., as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ ACCEPTANCE CORPORATION I,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Exhibit A
---------
ASSET BACKED CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE
EXTENT DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.10 OF THE TRUST
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE OWNER TRUSTEE AND THE INSURER, TO THE EFFECT THAT SUCH TRANSFEREE
IS NOT (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (ii) A
PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR (iii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN, WHICH REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF
THE OWNER TRUSTEE OR THE INSURER.
NO TRANSFER OF A CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE
IN ACCORDANCE WITH SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE
OF THE CERTIFICATE TO THE DEPOSITOR, THE OWNER TRUSTEE SHALL REQUIRE
(i) THE TRANSFEREE TO EXECUTE AN INVESTMENT LETTER ACCEPTABLE TO AND
IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND THE
INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE INSURER THE FACTS
SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE OR THE INSURER OR (ii) IF THE INVESTMENT
LETTER IS NOT DELIVERED, A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO
AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE, THE
INSURER AND THE SELLER THAT SUCH TRANSFER MAY BE MADE PURSUANT TO AN
EXEMPTION, DESCRIBING THE APPLICABLE EXEMPTION AND THE BASIS
THEREFOR, FROM SAID ACT OR IS BEING MADE PURSUANT TO SAID ACT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE, THE
INSURER, THE DEPOSITOR OR THE SELLER. THE HOLDER OF A CERTIFICATE
DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES HEREBY AGREE TO,
INDEMNIFY THE SELLER, THE DEPOSITOR AND THE INSURER AGAINST ANY
LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT
MADE IN ACCORDANCE WITH SUCH FEDERAL AND STATE LAWS.
THE CERTIFICATES AND ANY INTEREST THEREIN SHALL NOT BE TRANSFERRED
EXCEPT UPON SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT: (I)
THE PERSON THAT ACQUIRES A CERTIFICATE SHALL (A) BE ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE
OR THE DISTRICT OF COLUMBIA THEREOF, (B) EXPRESSLY ASSUME, BY AN
AGREEMENT SUPPLEMENTAL HERETO, EXECUTED AND DELIVERED TO THE OWNER
TRUSTEE, THE PERFORMANCE OF EVERY COVENANT AND OBLIGATION OF THE
SELLER UNDER THE TRUST AGREEMENT, EXCEPT FOR THE COVENANTS AND
OBLIGATIONS CONTAINED IN SECTIONS 2.1, 2.2, 2.3, 2.4, 3.3 AND 3.4 OF
THE SALE AND SERVICING AGREEMENT, SECTION 7.1 OF THE INDENTURE AND
UNDER THE CREDIT LINE AGREEMENTS AND THE MORTGAGE NOTES; (II) THE
PERSON THAT ACQUIRES A CERTIFICATE SHALL DELIVER TO THE OWNER TRUSTEE
AND THE INSURER AN OFFICER'S CERTIFICATE STATING THAT SUCH TRANSFER
AND SUCH SUPPLEMENTAL AGREEMENT COMPLY WITH SECTION 3.10 OF THE TRUST
AGREEMENT AND THAT ALL CONDITIONS PRECEDENT PROVIDED BY SECTION 3.10
OF THE TRUST AGREEMENT HAVE BEEN COMPLIED WITH AND AN OPINION OF
COUNSEL STATING THAT SUCH TRANSFER AND SUCH SUPPLEMENTAL AGREEMENT
COMPLY WITH SECTION 3.10 AND THAT ALL CONDITIONS PRECEDENT PROVIDED
BY SECTION 3.10 HAVE BEEN COMPLIED WITH, AND THE OWNER TRUSTEE MAY
CONCLUSIVELY RELY ON SUCH OFFICER'S CERTIFICATE, SHALL HAVE NO DUTY
TO MAKE INQUIRIES WITH REGARD TO THE MATTERS SET FORTH THEREIN AND
SHALL INCUR NO LIABILITY IN SO RELYING; (III) THE PERSON THAT
ACQUIRES A CERTIFICATE SHALL DELIVER TO THE OWNER TRUSTEE AND THE
INSURER A LETTER FROM EACH RATING AGENCY CONFIRMING THAT ITS RATING
OF THE NOTES, AFTER GIVING EFFECT TO SUCH TRANSFER, WILL NOT BE
REDUCED OR WITHDRAWN WITHOUT REGARD TO THE POLICY; (IV) THE PERSON
THAT ACQUIRES A CERTIFICATE SHALL DELIVER TO THE OWNER TRUSTEE AND
THE INSURER AN OPINION OF COUNSEL TO THE EFFECT THAT (A) SUCH
TRANSFER WILL NOT ADVERSELY AFFECT THE TREATMENT OF THE NOTES AFTER
SUCH TRANSFER AS DEBT FOR FEDERAL AND APPLICABLE STATE INCOME TAX
PURPOSES, (B) SUCH TRANSFER WILL NOT RESULT IN THE TRUST BEING
SUBJECT TO TAX AT THE ENTITY LEVEL FOR FEDERAL OR APPLICABLE STATE
TAX PURPOSES, (C) SUCH TRANSFER WILL NOT HAVE ANY MATERIAL ADVERSE
IMPACT ON THE FEDERAL OR APPLICABLE STATE INCOME TAXATION OF A
NOTEHOLDER AND (D) SUCH TRANSFER WILL NOT RESULT IN THE ARRANGEMENT
CREATED BY THE TRUST AGREEMENT OR ANY "PORTION" OF THE TRUST, BEING
TREATED AS A TAXABLE MORTGAGE POOL AS DEFINED IN SECTION 7701(i) OF
THE CODE; (V) ALL FILINGS AND OTHER ACTIONS NECESSARY TO CONTINUE THE
PERFECTION OF THE INTEREST OF THE TRUST IN THE MORTGAGE LOANS AND THE
OTHER PROPERTY CONVEYED UNDER THE TRUST AGREEMENT SHALL HAVE BEEN
TAKEN OR MADE.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
MELLON HOME EQUITY LINE OF CREDIT TRUST 2001-1
ASSET BACKED CERTIFICATE
Percentage Interest: 100%
Cut-Off Date:
Close of business on March 1, 2001
First Payment Date: Issue Date: March 23, 2001
April 20, 2001
No. 1
Mellon Bank, N.A.
-----------------
Registered Holder
The Trust was created pursuant to a Trust Agreement dated as
of March 1, 2001 (the "Trust Agreement"), between Mellon Bank, N.A. (the
"Seller"), ▇.▇. ▇▇▇▇▇▇ Acceptance Corporation I (the "Depositor") and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as Mellon Home Equity Line of Credit Trust 2001-1 "Asset Backed
Certificates." Also issued under the Indenture dated as of March 1, 2001 (the
"Indenture") between the Trust and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
indenture trustee (the "Indenture Trustee") are the Mellon Home Equity Line of
Credit Asset-Backed Notes (the "Notes"). These Certificates are issued under
and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue
of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of adjustable- adjustable-rate home
equity revolving credit line loans secured by first or second deeds of trust
or Mortgages on primarily one-to-four family residential properties.
Under the Trust Agreement, there will be distributed on the
20th day of each month or, if such 20th day is not a Business Day, the next
Business Day (the "Payment Date"), commencing on April 20, 2001, to the Person
in whose name this Certificate is registered at the close of business on the
Business Day preceding such Payment Date (the "Record Date") such
Certificateholder's Percentage Interest in the amount to be distributed to
Certificateholders on such Payment Date.
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 Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable.
It is the intent of the Seller, the Servicer, and the
Certificateholders that, for purposes of Federal income taxes, the Trust will
be treated as a branch. In the event that the Certificates are held by more
than one Holder, it is the intent of the Seller, the Servicer, and the
Certificateholders that, for purposes of Federal income taxes, the Trust will
be treated as a partnership and the Certificateholders will be treated as
partners in that partnership. The Seller and any other Certificateholders, by
acceptance of a Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Certificates for such tax purposes as
partnership interests in the Trust. Each Certificateholder, by its acceptance
of a Certificate, covenants and agrees that such Certificateholder will not at
any time institute against the Trust or the Seller, or join in any institution
against the Trust or the Seller 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 Operative Documents.
Distributions on this Certificate will be made as provided
in the Sale and Servicing Agreement and the Indenture by the Indenture Trustee
by wire transfer or check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon. Except as otherwise provided in the
Trust Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
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.
Date: ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇ HOME EQUITY LINE OF CREDIT
TRUST 2001-1
By: WILMINGTON TRUST COMPANY not in its
individual capacity but solely as Owner
Trustee
By:
-----------------------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within
mentioned Trust Agreement.
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee
By:_____________________________
Authenticating Agent
(Reverse of Certificate)
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, the Insurer, the Depositor, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Operative
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections with respect to the Mortgage Loans, as more specifically set forth
herein, in the Sale and Servicing Agreement and in the Indenture. A copy of
each of the Sale and Servicing Agreement and the Trust Agreement may be
examined during normal business hours at the principal office of the Seller,
and at such other places, if any, designated by the Seller, by any
Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Trust Agreement at any time by the Seller and the Owner Trustee with the prior
written consent of the Insurer and with the consent of the holders of the
Notes and the Certificates evidencing not less than a majority of the
outstanding Notes and the Certificates. Any such consent by the holder of this
Certificate shall be conclusive and binding on such holder and on all future
holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Trust Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the holders of any of the Certificates (other than the Seller or the Insurer).
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Owner Trustee in the Corporate Trust Office,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or
more new Certificates in authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is
Wilmington Trust Company.
Except for Certificates issued to the Seller, the
Certificates are issuable only as registered Certificates without coupons. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates in authorized
denominations evidencing the same aggregate denomination, as requested by the
holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, the Insurer
and any agent of the Owner Trustee, the Certificate Registrar, the Insurer or
the Insurer may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar, the Insurer nor 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 upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of
all property held as part of the Trust
The recitals contained herein shall be taken as the
statements of the Seller or the Servicer, as the case may be, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Certificate or of any Mortgage Loan or related document.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual or
facsimile signature, this Certificate shall not entitle the holder hereof to
any benefit under the Trust Agreement or the Sale and Servicing Agreement or
be valid for any purpose.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
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(Please print or type name and address, including postal zip code, of assignee)
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the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________ Attorney to transfer said Certificate on the
books of the Certificate Registrar, with full power of substitution in the
premises.
Dated:
*
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Signature Guaranteed:
*
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* NOTICE: The signature to this assignment must correspond
with the name of the registered owner as it appears on the face of
the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed
by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as
may be determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
EXHIBIT B
CERTIFICATE OF TRUST OF
MELLON HOME EQUITY LINE OF CREDIT TRUST 2001-1
This Certificate of Trust of Mellon Home Equity Line of
Credit Trust 2001-1 (the "Trust") is being duly executed and filed by the
undersigned, 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 Mellon Home Equity Line of Credit Trust 2001-1.
2. Delaware Trust. The name and business address of
the Owner Trustee of the Trust in the State of Delaware is Wilmington Trust
Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attn: Corporate Trust Administration.
3. This Certificate of Trust will be effective March
__, 2001.
IN WITNESS WHEREOF, the undersigned, in accordance with
Section 3811(a) of the Act, has duly executed this Certificate of Trust.
WILMINGTON TRUST COMPANY
not in its individual capacity but solely
as Owner Trustee of the Trust
By:
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Name:
Title: