EXHIBIT 99.4
EXECUTION COPY
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CWABS, INC.
Depositor
WILMINGTON TRUST COMPANY
Owner Trustee
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MASTER TRUST AGREEMENT
Dated as of August 28, 2000
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CWABS MASTER TRUST
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Table of Contents
Page
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions..........................................................1
Section 1.02. Other Terms..........................................................3
Section 1.03. Rules of Construction................................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name.................................................................5
Section 2.02. Office...............................................................5
Section 2.03. Purposes and Powers..................................................5
Section 2.04. Appointment of Owner Trustee.........................................6
Section 2.05. Initial Capital Contribution of Series Assets........................6
Section 2.06. Declaration of Trust.................................................6
Section 2.07. Liability of Depositor and the Transferor............................6
Section 2.08. Title to Trust Property..............................................6
Section 2.09. Location of Trust....................................................7
Section 2.10. Representations and Warranties of Depositor..........................7
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust.........................................8
Section 3.02. The Transferor Certificates..........................................8
Section 3.03. Authentication of Transferor Certificates............................9
Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates........................................................10
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor Certificate........11
Section 3.06. Maintenance of Office or Agency.....................................11
Section 3.07. Persons Considered Certificateholders...............................11
Section 3.08. Access to List of Certificateholders' Names and Addresses...........11
Section 3.09. Appointment of Certificate Paying Agent.............................12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain Matters........12
Section 4.02. Action by Certificateholders Regarding Certain Matters..............13
Section 4.03. Action by Certificateholders Regarding Bankruptcy...................13
Section 4.04. Restrictions on Certificateholder's Power...........................13
Section 4.05. Majority Interest...................................................14
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds..........................................14
Section 5.02. Method of Payment...................................................14
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority...................................................15
Section 6.02. General Duties......................................................15
Section 6.03. Action on Instruction...............................................15
Section 6.04. No Duties Except as Specified in the Trust Agreement or in
Instructions........................................................16
Section 6.05. No Action Except Under Specified Documents or Instructions..........17
Section 6.06. Restrictions........................................................17
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.....................................17
Section 7.02. Furnishing Documents................................................18
Section 7.03. Representations and Warranties......................................18
Section 7.04. Reliance; Advice of Counsel.........................................19
Section 7.05. Not Acting in Individual Capacity...................................19
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or Payment
Obligations.........................................................19
Section 7.07. Owner Trustee May Own Notes.........................................20
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses...................................20
Section 8.02. Indemnification.....................................................20
Section 8.03. Payments to Owner Trustee...........................................21
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement......................................21
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee.............................22
Section 10.02. Successor Owner Trustee.............................................22
Section 10.03. Merger or Consolidation of Owner Trustee............................23
Section 10.04. Appointment of Co-Trustee or Separate Trustee.......................23
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments..........................................24
Section 11.02. No Legal Title to Series Assets in Certificateholders...............25
Section 11.03. Limitations on Rights of Others.....................................25
Section 11.04. Notices.............................................................25
Section 11.05. Severability........................................................25
Section 11.06. Separate Counterparts...............................................26
Section 11.07. Successors and Assigns..............................................26
Section 11.08. Nonpetition Covenant................................................26
Section 11.09. No Recourse.........................................................26
Section 11.10. Headings............................................................26
Section 11.11. GOVERNING LAW.......................................................26
Section 11.12. Rule 144A Information...............................................26
EXHIBITS
EXHIBIT A Form of Certificate of Trust of
CWABS Master Trust A-1
This MASTER TRUST AGREEMENT, dated as of August 28, 2000, between
CWABS, INC., a Delaware corporation, as Depositor, and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Owner Trustee,
WITNESSETH:
WHEREAS, the parties to this Master Trust Agreement will create the
CWABS Master Trust and provide for, among other things, the issuance of the
Transferor Certificates;
NOW, THEREFORE, the parties to this Master Trust Agreement agree as
follows.
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms
are used in this Master Trust Agreement as defined below.
"Administration Agreement" means the Administration Agreement
associated with a Series specified as one of its Transaction Documents.
"Administrator" means the person acting as such under the
Administration Agreement.
"Agreement" means this Master Trust Agreement together with a Series
Trust Supplement.
"Business Trust Statute" means the Delaware Business Trust Act (12
Del. Code,ss.3801 et seq.).
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit A to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificateholder" means the registered holder of a Transferor
Certificate issued in connection with the creation of a subtrust of the Trust.
"Code" means the Internal Revenue Code of 1986.
"Credit Enhancer" for any Series means the person identified as such
in the related Series Trust Supplement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Expenses" has the meaning assigned to it in Section 8.02.
"Indemnified Parties" has the meaning assigned to it in Section 8.02.
"Indenture" for any Series of Notes means the indenture entered into
between the Trust, an indenture trustee, and any other party, relating to a
particular subtrust of the Trust specifying the principal terms pursuant to
which the Series of Notes are issued.
"Indenture Trustee" for a Series means the entity acting as the
indenture trustee under the related Indenture.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, participation
interest, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever resulting in an encumbrance against real or
personal property of a person, including any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any Financing
Statement under the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or comparable law of any jurisdiction to evidence any of the
foregoing.
"Master Trust Agreement" means this Master Trust Agreement.
"Mortgage Loan" has the meaning given to it in the Sale and Servicing
Agreement that relates to the transfer of the assets of a particular subtrust
of the Trust.
"Noteholder" means a holder of one or more Notes issued by the Trust
for a particular subtrust of the Trust.
"Notes" means the notes of a particular series issued by the Trust
for a particular subtrust of the Trust from time to time pursuant to its
related Indenture.
"Opinion of Counsel" means a written opinion of counsel acceptable to
the Owner Trustee and the counsel may be in-house counsel for the Depositor,
its Affiliates, or the Transferor.
"Responsible Officer" means, any officer within the corporate trust
department of the Owner Trustees, including any vice president, assistant vice
president, managing director, treasurer, assistant treasurer, trust officer,
or any other officer of the Owner Trustees who customarily performs functions
similar to those performed by the persons who at the time are those officers,
respectively, or to whom any corporate trust matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of the Master Trust Agreement or
Indenture.
"Sale and Servicing Agreement" means the sale and servicing agreement
relating to the transfer to a particular subtrust of the Trust of the assets
of the subtrust pursuant to which, among other things, the Depositor transfers
all its interests in the Mortgage Loans specified in it to the subtrust of the
Trust.
"Series" means any series of Notes issued pursuant to an Indenture
secured by the assets of a particular subtrust of the Trust or any related
Transferor Certificates, as the context requires.
"Series Assets" means all assets and property of a subtrust of the
Trust acquired by the subtrust of the Trust pursuant to the related sale and
servicing agreement.
"Series Trust Supplement" means a supplement to this Master Trust
Agreement creating a separate subtrust to accept the transfer of assets under
a particular Sale and Servicing Agreement and to issue Notes, and specifying
the principal terms of any Transferor Certificate relating to the relevant
subtrust.
"Subtrust" means a separate series of the Trust established pursuant
to Section 2.08.
"Transaction Documents" means collectively the Indenture relating to
a subtrust, the Agreement, and any other document designated in the Series
Trust Supplement or the related Indenture as a "Transaction Document" for the
relevant subtrust for the purposes of this Master Trust Agreement.
"Transferor" means the holder of a Transferor Certificate of a
subtrust of the Trust.
"Transferor Certificate" means the certificate of a Series
representing the interest in a particular subtrust of the Trust that is the
right to receive any amounts available for distribution that are not allocable
to Notes secured by the assets of that subtrust and that is executed and
authenticated in accordance with this Master Trust Agreement substantially in
the form attached to the related Series Trust Supplement.
"Transferor Certificate Register" means the register maintained by
the Owner Trustee pursuant to Section 3.04.
"Trust" means the master trust formed pursuant to the Master Trust
Agreement.
Section 1.02. Other Terms.
Defined terms include, as appropriate, all genders and the plural as
well as the singular.
Section 1.03. Rules of Construction.
Except as otherwise expressly provided in this Master Trust Agreement
or unless the context otherwise clearly requires:
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Master Trust Agreement, such as
"Section 3.01(B)," refer to the designated article, section, subsection,
exhibit, or other subdivision of this Master Trust Agreement as a whole and to
all subdivisions of the designated article, section, subsection, exhibit, or
other subdivision. The words "herein," "hereof," "hereto," "hereunder," and
other words of similar import refer to this Master Trust Agreement as a whole
and not to any particular article, section, exhibit, or other subdivision of
this Master Trust Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Master Trust Agreement.
(c) Any party may execute any of the requirements under this Master
Trust Agreement either directly or through others, and the right to cause
something to be done rather than doing it directly shall be implicit in every
requirement under this Master Trust Agreement. Unless a provision is
restricted as to time or limited as to frequency, all provisions under this
Master Trust Agreement are implicitly available and things may happen from
time to time.
(d) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means
"A or B or both," not "either A or B but not both").
(e) A reference to "a thing" or "any of a thing" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any of a thing" is any and all of it. A reference to the plural
of anything as to which there could be either one or more than one does not
imply the existence of more than one (for instance, the phrase "the obligors
on a note" means "the obligor or obligors on a note"). "Until something
occurs" does not imply that it must occur, and will not be modified by the
word "unless." The word "due" and the word "payable" are each used in the
sense that the stated time for payment has past. The word "accrued" is used in
its accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Master Trust
Agreement, to the extent not completely defined, shall be construed in
accordance with generally accepted accounting principles in the United States.
To the extent that the definitions of accounting terms in this Master Trust
Agreement are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Master Trust
Agreement shall control. Capitalized terms used in this Master Trust Agreement
without definition that are defined in the Uniform Commercial Code are used in
this Master Trust Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the word "from" or "beginning"
means "from and including," the word "after" means "from but excluding," the
words "to" or "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other similar
laws of general applicability relating to or affecting creditors' rights and
to general equity principles.
ARTICLE II
ORGANIZATION
Section 2.01. Name.
This Trust shall be known as "CWABS Master Trust," in which name the
Owner Trustee may issue Notes with a specific Series designation and otherwise
conduct the business of the Trust.
Section 2.02. Office.
The office of the Trust shall be in care of the Owner Trustee at
"▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration" or at any other address in the
State of Delaware that the Owner Trustee may designate by written notice to
the Depositor.
Section 2.03. Purposes and Powers.
(a) The Trust is authorized to engage in the following activities:
(i) to issue Notes in one or more Series pursuant to
Indentures;
(ii) to issue Transferor Certificates in one or more Series
pursuant to this Master Trust Agreement and Series Trust
Supplements;
(iii) to Grant Series Assets to an Indenture Trustee pursuant
to an Indenture;
(iv) to distribute to a Transferor pursuant to this Master
Trust Agreement, the Series Trust Supplements, and the other
Transaction Documents any portion of the related Series Assets
released from the Lien of the related Indenture and any other
amounts provided for in the related Sale and Servicing Agreement;
(v) to enter into and perform its obligations under the
Transaction Documents to which it becomes a party;
(vi) to engage in those activities, including entering into
agreements, that are appropriate to accomplish any of the foregoing
or are incidental to them; and
(vii) subject to compliance with the Transaction Documents, to
engage in any other activities appropriate to conserve the Series
Assets of any subtrust and make distributions to any Transferor and
the holders of Notes.
The Trust shall not engage in any activity other than in connection
with the foregoing activities or other than as required or authorized by this
Master Trust Agreement or the other Transaction Documents.
Section 2.04. Appointment of Owner Trustee.
The Depositor appoints the Owner Trustee as trustee of the Trust and
each subtrust effective as of the date of this Master Trust Agreement and each
Series Trust Supplement, as the case may be, to have all the rights and
obligations in this Master Trust Agreement and each Series Trust Supplement.
Section 2.05. Initial Capital Contribution of Series Assets.
The Depositor hereby remits to the Owner Trustee the sum of $1. The
Owner Trustee hereby acknowledges receipt in trust from the Depositor of the
foregoing contribution. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall promptly reimburse the Owner Trustee on
request for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Series Assets
of each subtrust in trust, on the terms of the related Agreement, for the
benefit of the related Transferor, subject to the obligations of the Trust
under the related Transaction Documents. The Trust is a business trust under
the Business Trust Statute and this Master Trust Agreement and the Series
Trust Supplements are the governing instruments of the business trust. The
Owner Trustee shall have all rights and obligations in the Agreements and in
the Business Trust Statute for accomplishing the purposes of the Trust. The
Owner Trustee shall file with the Secretary of State of the State of Delaware
a Certificate of Trust of the Trust.
Section 2.07. Liability of the Transferor.
Except to the extent otherwise provided in this Master Trust
Agreement or in the other Transaction Documents, the Transferor shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the general corporation law
of the State of Delaware.
Section 2.08. Title to Trust Property.
Legal title to all the Series Assets shall be vested in the Trust as
a separate legal entity except where applicable law in any jurisdiction
requires title to any part of the Series Assets to be vested in a trustee, in
which case title shall be vested in the Owner Trustee or any co-trustee or
separate trustee, as the case may be.
The Trust is a series trust pursuant to Sections 3804 and 3806(b)(2)
of the Business Trust Statute, and each series (called a subtrust) shall be a
separate series of the Trust within the meaning of Section 3806(b)(2) of the
Business Trust Statute. As such, separate and distinct records shall be
maintained by the Trust for each subtrust and the assets of the Trust
associated with a particular subtrust shall be held and accounted for by the
Trust separately from the assets of any other subtrust and from any other
assets of the Trust. The debts, liabilities, obligations, and expenses
incurred, contracted for, or otherwise existing with respect to a particular
subtrust shall be enforcable against the assets of the particular subtrust
only, and not against the assets of the Trust generally, or the assets of any
other subtrust. None of the debts, liabilities, obligations, and expenses
incurred, contracted for, or otherwise existing with respect to a particular
subtrust shall be enforcable against the assets of any other subtrust.
Section 2.09. Location of Trust.
The Trust will be located in Delaware and administered in Delaware.
Any bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in Delaware or Illinois. The Trust shall not have any employees in
any State other than Delaware. Nothing in this Master Trust Agreement shall
restrict the Owner Trustee from having employees within or without Delaware.
Payments will be received by the Trust only in Delaware, Illinois, or
California, and payments will be made by the Trust only from Delaware or
Illinois.
Section 2.10. Representations and Warranties of Depositor.
The Depositor represents and warrants to the Owner Trustee as of the
date of this Agreement, and as to any Transaction Document, as of its
datethat:
(a) Organization and Good Standing. The Depositor is a corporation
duly organized and validly existing under the laws of Delaware, with full
power and authority to own its properties and to conduct its business as
presently owned or conducted and to execute, deliver, and perform the
Agreements and any other document related to the Agreements to which it is a
party and to perform its obligations as contemplated by them.
(b) Due Qualification. The Depositor is duly qualified to do business
as a Delaware corporation in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to so qualify or
to obtain required licenses or approvals would have a material adverse effect
on its ability to perform its obligations under the Agreements and the
Transaction Documents to which the Depositor is a party.
(c) Due Authorization; Enforceability. The Depositor has full power
and authority to execute, deliver, and perform the Agreements and the
Transaction Documents to which it is a party and to carry out their respective
terms. The Depositor has full power and authority to sell and assign the
Series Assets to be deposited with any subtrust of the Trust, and the
Depositor has duly authorized that sale and assignment and deposit to any
subtrust of the Trust by all necessary action. The execution, delivery, and
performance by the Depositor of the Agreements and the Transaction Documents
to which the Depositor is a party have been duly authorized by the Depositor
by all necessary action. The Agreements and the Transaction Documents executed
by the Depositor have been duly executed and delivered and constitute the
valid and legally binding obligations of the Depositor enforceable against the
Depositor in accordance with their terms.
(d) No Conflict. The Depositor's execution and delivery of the
Agreements and the Transaction Documents to which the Depositor is a party,
performance of the transactions contemplated by them, and fulfillment of their
terms applicable to the Depositor do not conflict with any requirements of law
applicable to the Depositor or conflict with, result in any breach of any of
the provisions of, or with or without notice or lapse of time constitute a
default under, any indenture, contract, or other instrument to which the
Depositor is a party or by which it or its properties are bound.
(e) Consents. No authorization, consent, license, order, or approval
of or registration or declaration with, any governmental authority is required
to be obtained, effected, or given by the Depositor in connection with the
execution and delivery of the Agreements or the Transaction Documents by the
Depositor or its performance of its obligations under any of them or the
transactions contemplated by any of them, or the transfer of the Series Assets
to any subtrust of the Trust.
(f) Litigation. No actions, proceedings, or investigations are
pending or, to the best of the Depositor's knowledge, threatened against the
Depositor before any governmental authority having jurisdiction over the
Depositor
(i) asserting the invalidity of any Agreement or any
Transaction Documents to which the Depositor is a party,
(ii) seeking to prevent the consummation of any of the
transactions contemplated by any Agreement or any Transaction
Documents to which the Depositor is a party,
(iii) seeking any determination that might materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, any Agreement or any
Transaction Documents to which the Depositor is a party, or
(iv) seeking to affect adversely the income tax attributes of
any subtrust of the Trust under the United States federal or New
York State or Delaware income tax law.
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.05 and until the creation of a subtrust and the issuance
of a Transferor Certificate for a subtrust, the Depositor shall be the sole
beneficiary of the Trust.
Section 3.02. The Transferor Certificates.
(a) Pursuant to Section 3806(b)(2) of the Business Trust Statute, the
Trust may issue Transferor Certificates in one or more Series, the principal
terms of which shall be in a Series Trust Supplement for the Series. The
Transferor Certificates of all outstanding Series shall be equally and ratably
entitled to the benefits of this Master Trust Agreement, without preference,
priority, or distinction, except, with respect to any Series as provided in
the related Series Trust Supplement and except that no Transferor Certificate
shall have any interest in any subtrust or the assets of any subtrust other
than its related subtrust.
(b) By the issuance date of any Transferor Certificate, the Depositor
and the Owner Trustee shall execute and deliver a Series Trust Supplement
specifying the principal terms of the Series. The terms of the Series Trust
Supplement may change the terms of this Master Trust Agreement solely as
applied to its Series and subtrust. If a conflict exists between this Master
Trust Agreement and any Series Trust Supplement, the Series Trust Supplement
shall be controlling for its Series and subtrust. An issuance of Transferor
Certificates by the Trust is subject to the satisfaction of the following
conditions:
(i) By the fifth Business Day before the issuance date of the
Series, the Administrator shall have given the Servicer, the
Indenture Trustee, the Owner Trustee, each Rating Agency, and any
Credit Enhancer written notice of the issuance and its issuance
date. The notice shall state the designation of the Series.
(ii) The Administrator shall have delivered to the Depositor,
the Indenture Trustee, and the Owner Trustee, at least five Business
Days before the issuance date of the Series, the related Series
Trust Supplement, in form satisfactory to the Owner Trustee,
specifying the principal terms of the Series.
When the above conditions are satified the Depositor and the Owner
Trustee shall execute the Series Trust Supplement and shall execute, deliver,
and authenticate the Transferor Certificates of the new Series to the order of
the Depositor. Notwithstanding the provisions of this Section, before the
execution of any Series Trust Supplement, the Owner Trustee may request and
rely on an Opinion of Counsel stating that the execution of the Series Trust
Supplement is authorized or permitted by this Master Trust Agreement and any
Series Trust Supplement related to any outstanding Series. The Owner Trustee
may, but shall not be obligated to, enter into any Series Trust Supplement
that adversely affects the Owner Trustee's own rights, duties, or immunities
under this Master Trust Agreement.
(c) The Transferor Certificates will be substantially in the forms
specified in the relevant Series Trust Supplement and will, on original issue,
be executed, authenticated, and delivered by the Owner Trustee to the order of
the Depositor concurrently with the transfer of the related Mortgage Loans to
the Trust.
(d) The Transferor Certificates will be executed by manual or
facsimile signature on behalf of the Owner Trustee by an authorized officer.
Transferor Certificates bearing the manual or facsimile signatures of
individuals who were, at the time their signatures were affixed, authorized to
sign on behalf of the Owner Trustee shall bind the Trust, notwithstanding that
any of them have ceased to be so authorized before the authentication and
delivery of the Transferor Certificates or did not hold such offices at the
date of the Transferor Certificate. The Transferor Certificates will not be
book-entry certificates.
Section 3.03. Authentication of Transferor Certificates.
No Transferor Certificate shall be entitled to any benefit under this
Master Trust Agreement, or be valid for any purpose, unless the Transferor
Certificate is manually authenticated by the Owner Trustee substantially in
the form provided for in the relevant Agreement, and the authentication on any
Transferor Certificate will be conclusive evidence, and the only evidence,
that the Transferor Certificate has been duly authenticated and delivered. All
Transferor Certificates shall be dated the date of their authentication.
The Trust initially appoints the Indenture Trustee to act as the
authentication agent of the Owner Trustee. All references to the
authentication of the Transferor Certificates shall be considered to include
the authentication agent.
Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates.
The Trust shall keep a Transferor certificate register (the
"Certificate Register") in which, subject to any reasonable regulations it may
prescribe, the Trust shall provide for the registration of the Transferor
Certificates and, to the extent permitted by this Master Trust Agreement and
any related Series Trust Supplement, of transfers and exchanges of the
Transferor Certificates. The certificate registrar (the "Certificate
Registrar") is initially the Indenture Trustee.
Whenever any Transferor Certificate is surrendered for registration
of transfer at the office or agency of the Certificate Registrar maintained
for that purpose and the conditions of this Section have been satisfied, the
Owner Trustee, on behalf of the Trust, shall execute, authenticate, and
deliver in the name of the designated transferees, one or more new Transferor
Certificates of the same Series in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
At the option of its Holder, each Transferor Certificate may be
exchanged for other Transferor Certificates of the same Series, in authorized
denominations of a like aggregate amount, by surrendering the Transferor
Certificate to be exchanged at the office or agency of the Certificate
Registrar maintained for that purpose.
Every Transferor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Certificateholder or an
attorney-in-fact for the Certificateholder duly authorized in writing. Each
transfer must satisfy all transfer restrictions in the Transferor Certificates
and the related Series Trust Supplement. Each Transferor Certificate
surrendered for registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Owner Trustee in accordance with its customary
practice.
No service charge shall be made for the registration of transfer or
exchange of any Transferor Certificate, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of the Transferor Certificate.
The preceding provisions of this Section notwithstanding, the Owner
Trustee need not transfer or exchange, and the Certificate Registrar need not
register transfers or exchanges, of Transferor Certificates during the fifteen
days preceding the due date for any payment on the Transferor Certificates.
The Certificate Registrar shall at all times maintain an office or
agency where Transferor Certificates may be surrendered for registration of
transfer or exchange.
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor
Certificate.
If (a) the Owner Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of a Transferor Certificate and the Owner Trustee
receives the security or indemnity it requires to hold it harmless or (b) any
mutilated Transferor Certificate is surrendered to the Owner Trustee, then in
the absence of notice that the Transferor Certificate has been acquired by a
Protected Purchaser, the Owner Trustee shall execute, authenticate, and
deliver, in exchange for or in lieu of the mutilated, destroyed, lost, or
stolen Transferor Certificate, a new Transferor Certificate of like tenor and
denomination. The Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed on the issuance
of the new Transferor Certificate under this Section. Any duplicate Transferor
Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the relevant subtrust of the Trust, as if originally
issued, whether or not the lost, stolen, or destroyed Transferor Certificate
is found.
Section 3.06. Maintenance of Office or Agency.
The Trust shall maintain an office or agency where notices and
demands on the Trust regarding the Transferor Certificates and the Transaction
Documents may be served. The Trust initially designates Indenture Trustee as
its office for those purposes. The Owner Trustee shall give prompt written
notice to the Certificateholders of the location, and any change in the
location, of this office or agency. If the Trust ever fails to maintain this
office or agency, then presentations, surrenders, notices, and demands may be
made or served at the Corporate Trust Office of the Owner Trustee.
Section 3.07. Persons Considered Certificateholders.
Before due presentation of a Transferor Certificate for registration
of transfer, the Owner Trustee, the Certificate Registrar, and any paying
agent for the Transferor Certificates shall treat the person in whose name any
Transferor Certificate is registered in the Certificate Register as the owner
of the Transferor Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar, and any paying agent for the
Transferor Certificates shall be bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and
Addresses.
The Certificate Registrar shall furnish to the Depositor or the Owner
Trustee a list of the names and addresses of the Transferor Certificateholders
as of the most recent Record Date within fifteen days after receipt by the
Certificate Registrar of a written request for it from the Depositor or the
Owner Trustee.
Section 3.09. Appointment of Certificate Paying Agent.
The paying agent for the Transferor Certificates shall make
distributions to the holder of each Transferor Certificate pursuant to the
relevant Series Trust Supplement and shall report the amounts of those
distributions to the Owner Trustee. The Administrator, on behalf of the Trust,
may remove the Certificate Paying Agent if the Administrator determines in its
sole discretion that the Certificate Paying Agent has failed to perform its
obligations under an Agreement in any material respect. Except as otherwise
provided in a Series Trust Supplement, the Certificate Paying Agent initially
shall be the Indenture Trustee. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent on thirty days' written notice
to the Owner Trustee. If the Indenture Trustee is no longer the Certificate
Paying Agent, the Administrator shall appoint a bank or trust company as
successor to act as Certificate Paying Agent. The Administrator shall cause
the successor Certificate Paying Agent or any additional Certificate Paying
Agent appointed by the Administrator to execute and deliver to the Trust an
instrument in which the successor Certificate Paying Agent or additional
Certificate Paying Agent agrees with the Trust that, as Certificate Paying
Agent, the successor Certificate Paying Agent or additional Certificate Paying
Agent will hold any sums held by it for payment to the Certificateholders in
trust for the benefit of the Certificateholders entitled to them until those
sums are paid to the appropriate Certificateholders. The Certificate Paying
Agent shall return all unclaimed funds to the Trust, and upon removal of a
Certificate Paying Agent, the Certificate Paying Agent shall also return all
funds in its possession to the Trust. Any reference in this Master Trust
Agreement or any Series Trust Supplement to the Certificate Paying Agent shall
include any co-Certificate Paying Agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain
Matters.
(a) The Owner Trustee shall give the Certificateholders thirty days'
written notice before taking any of the following actions on behalf of the
Trust. Within thirty days of the date of the notice the Certificateholders may
instruct the Owner Trustee in writing not to take the proposed action or may
provide alternative direction. Thirty days after giving the notice, if the
Owner Trustee has not been instructed otherwise by a majority of the holders
of the Transferor Certificates of all outstanding Series (voting per capita),
then the Owner Trustee may:
(i) initiate any claim or lawsuit by the Trust, or any
subtrust, or compromise any action, claim, or lawsuit brought by or
against the Trust, or any subtrust;
(ii) file an amendment to the Certificate of Trust;
(iii) amend any Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(iv) amend the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required,
but the amendment materially adversely affects the interests of the
Certificateholders;
(v) amend the Administration Agreement; and
(vi) appoint a successor Certificate Paying Agent, Certificate
Registrar, Administrator, or Indenture Trustee under the Indenture,
or consent to the assignment by the Transfer Agent and Registrar,
Administrator, or Indenture Trustee of its obligations under the
Indenture.
If any Series has more than one holder of its Transferor
Certificates, then the Holders may only give instructions that are unanimously
agreed to.
(b) Notwithstanding Section 4.01(a), without prior notice to the
Certificateholders the Owner Trustee may, on behalf of the Trust:
(i) initiate a claim or lawsuit by the Trust, or any subtrust,
for collection of Series Assets;
(ii) file an amendment to the Certificate of Trust whenever the
amendment is required by the Business Trust Statute; or
(iii) amend the Administration Agreement to cure any ambiguity
or mistake or effect any other amendment that would not materially
adversely affect the interests of the Certificateholders.
The foregoing provisions of this Section 4.01 do not create a duty on
the part of the Owner Trustee to take any of the actions described above.
Section 4.02. Action by Certificateholders Regarding Certain Matters.
Except when directed by the Certificateholders and with the prior
written consent of the Credit Enhancer in the case of (a), (b), or (c) below,
the Owner Trustee may not (a) remove the Administrator pursuant to Section
7(c) of the Administration Agreement, (b) appoint a successor Administrator
pursuant to Section 7(e) of the Administration Agreement, (c) remove the
Master Servicer under the Sale and Servicing Agreement, or (d) except as
expressly provided in the Indenture, sell Series Assets after the termination
of the Indenture.
Section 4.03. Action by Certificateholders Regarding Bankruptcy.
Except upon delivery to the Owner Trustee by each Certificateholder
of a certificate certifying that the Certificateholder reasonably believes
that the Trust is insolvent, the Owner Trustee may not commence a voluntary
proceeding in bankruptcy relating to the Trust.
Section 4.04. Restrictions on Certificateholder's Power.
A Certificateholder shall not direct the Owner Trustee to take or to
refrain from taking any action if that action or inaction would be contrary to
any obligation of the Trust, any subtrust of the Trust, or the Owner Trustee
under this Master Trust Agreement or any of the other Transaction Documents or
would be contrary to Section 2.03. The Owner Trustee shall not be obligated to
follow that direction if given.
Section 4.05. Majority Interest.
Except as expressly provided in this Master Trust Agreement or in any
Series Trust Supplement, any action that may be taken by the
Certificateholders under this Master Trust Agreement shall be taken by
Certificateholders unanimously within any Series and when more than one Series
is involved then by a majority of the Series voting per capita.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds.
(a) The Certificate Paying Agent shall distribute amounts to the
Certificateholders of each Series pursuant to the related Series Trust
Supplement.
(b) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to the Certificateholders, the withholding tax shall
reduce the amount otherwise distributable to the Certificateholders in
accordance with this Section. The Certificate Paying Agent is authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust. This authorization shall not prevent the Certificate Paying
Agent from contesting any tax in appropriate proceedings and withholding
payment of the tax pending the outcome of the proceedings if permitted by law.
The amount of any withholding tax imposed on any distributions shall be
treated as cash distributed to the Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If
withholding tax might be payable on a distribution to a non-U.S.
Certificateholder, the Certificate Paying Agent may in its sole discretion
withhold an appropriate amount to cover that possibility.
Section 5.02. Method of Payment.
Distributions required to be made to a Certificateholder on any
Payment Date shall be made by wire transfer of immediately available funds to
the account of the Certificateholder at a bank or other entity having
appropriate facilities if the Certificateholder so notifies the Certificate
Registrar in writing at least five Business Days before the Payment Date. If
appropriate notice is not given by a Certificateholder, then distributions to
that Certificateholder shall be by check mailed to it at its address in the
Certificate Register.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority.
The Owner Trustee is authorized and directed to execute and deliver
the Transaction Documents to which the Trust is to be a party and each other
document contemplated by the Transaction Documents in such form as the
Depositor shall approve, as evidenced conclusively by the Owner Trustee's
execution of it. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions permitted or
required of the Trust pursuant to the Transaction Documents. The Owner Trustee
is further authorized to take any action the Administrator recommends
regarding the Transaction Documents.
Section 6.02. General Duties.
The Owner Trustee shall discharge all of its responsibilities
pursuant to the Agreement and the other Transaction Documents to which the
Trust is a party and administer the Trust in the interest of the
Certificateholders, subject to the Transaction Documents and the Agreements.
The Owner Trustee shall be considered to have discharged its obligations under
this Master Trust Agreement and the other Transaction Documents to the extent
the Administrator has agreed in the Administration Agreement to perform any
act or to discharge any duty of the Owner Trustee or the Trust under the
Agreement or any other Transaction Document. The Owner Trustee shall not be
liable for the failure of the Administrator to carry out its obligations under
the Administration Agreement or the other Transaction Documents.
The Administrator shall prepare and file any federal, state, or local
income and franchise tax return for the Trust or any subtrust of the Trust as
well as any other applicable return and apply for a taxpayer identification
number on behalf of the Trust. If the Trust is required pursuant to an audit
or administrative proceeding or change in applicable regulations to file
federal, state, or local tax returns, the Administrator shall prepare and file
any tax returns required to be filed by the Trust or any subtrust of the
Trust. The Owner Trustee shall promptly sign the returns and deliver the
returns after signature to the Administrator and the returns shall be filed by
the Administrator.
Section 6.03. Action on Instruction.
(a) Subject to Article IV and in accordance with the Transaction
Documents, the Certificateholders of an affected Series may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Owner Trustee is not required to take any action under any
Agreement or any other Transaction Document if the Owner Trustee reasonably
determines, or is advised by counsel, that the action (i) is likely to result
in liability on the part of the Owner Trustee, (ii) is contrary to the terms
of the relevant Agreement or of any other Transaction Document, or (iii) is
contrary to law.
(c) Whenever the Owner Trustee is (i) unable to decide between
alternative courses of action under any Agreement or any other Transaction
Document, (ii) unsure about the application of any provision of any Agreement
or any other Transaction Document or it appears to be in conflict with any
other applicable provision, or (iii) if any Agreement permits any
determination by the Owner Trustee or is silent or is incomplete about the
course of action that the Owner Trustee is required to take regarding a
particular set of facts, the Owner Trustee may give appropriate notice to the
Certificateholders requesting instruction and, if the Owner Trustee in good
faith follows any instructions it receives, the Owner Trustee shall not be
liable to the Certificateholders on account of its action or inaction. If the
Owner Trustee has not received appropriate instruction within ten days of the
notice (or within any shorter period necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking any action not
inconsistent with the Agreement or the other Transaction Documents that it
deems to be in the best interests of the Certificateholders, and shall have no
liability to the Certificateholders for its action or inaction.
(d) The Owner Trustee may enter into any amendment of any Transaction
Document as to which the Rating Agency Condition is satisfied, and when so
requested by the Certificateholders of a Series, the Owner Trustee shall enter
into any amendment of any related Transaction Documents:
(i) that does not impose further obligations or liabilities on
the Owner Trustee,
(ii) that the Credit Enhancer has consented to, and
(iii) as to which either the Rating Agency Condition is
satisfied or Holders of not less than 66 2/3% of the aggregate
Outstanding Amount of the related Notes have consented.
Section 6.04. No Duties Except as Specified in the Trust Agreement or
in Instructions.
The Owner Trustee shall not have any duty to manage, make any payment
on, register, record, sell, dispose of, or otherwise deal with any Series
Assets, or to otherwise take or refrain from taking any action under any
document contemplated by any Agreement to which the Trust is a party, except
as expressly provided by the relevant Agreement or in any written instruction
received by the Owner Trustee under Section 6.03. No implied duties or
obligations shall be read into any Agreement or any other Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any Financing or Continuation Statement in any public office at any
time or otherwise to perfect or maintain the perfection of any security
interest or lien granted to it under the Sale and Servicing Agreement or to
prepare or file any filing with the Securities and Exchange Commission for the
Trust or to record any Agreement or any other Transaction Document. Wilmington
Trust Company, in its individual capacity, shall, at its own cost and expense,
promptly take all action necessary to discharge any liens on any part of any
Series Assets resulting from actions by, or claims against, Wilmington Trust
Company, in its individual capacity, that are not related to the ownership or
the administration of the Series Assets.
Section 6.05. No Action Except Under Specified Documents or
Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of,
or otherwise deal with any part of any Series Assets, except as provided in
the relevant Agreement, pursuant to the other relevant Transaction Documents,
and in accordance with any instruction delivered to the Owner Trustee pursuant
to Section 6.03.
Section 6.06. Restrictions.
The Owner Trustee shall not take any action that is inconsistent with
the stated purposes of the Trust in Section 2.03. The Certificateholders, by
their acceptance of their Transferor Certificates, agree not to direct the
Owner Trustee to take action that would violate the related Agreement or any
other Transaction Document.
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts created by this Master Trust
Agreement and agrees to perform its duties under each Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of any Series Assets on the terms of the related Transaction
Documents. The Owner Trustee shall not be accountable under any Agreement or
any other Transaction Document under any circumstances except (i) for its own
willful misconduct or gross negligence or (ii) for the inaccuracy of any
representation or warranty contained in Section 7.03. In particular, but not
in limitation (and subject to the exceptions in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee.
(b) The Owner Trustee shall not be liable regarding any action taken
or omitted to be taken by it in accordance with instructions from the
Administrator or the Certificateholders.
(c) No provision of any Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk its funds or otherwise incur
any financial liability in the performance of any of its rights under any
Agreement or any other Transaction Document if the Owner Trustee has
reasonable grounds for believing that repayment of those funds or adequate
indemnity against the risk or liability is not reasonably assured to it.
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness under any of the Transaction Documents, including the principal
and interest on any Series of Notes.
(e) The Owner Trustee shall not be responsible for the validity or
sufficiency of this Master Trust Agreement or for its due execution by the
Depositor or for the form, character, genuineness, sufficiency, value, or
validity of any of the Series Assets, or for the validity or sufficiency of
the Transaction Documents, other than the certificate of authentication on the
Transferor Certificates.
(f) The Owner Trustee shall not be liable to any Noteholder or
Certificateholder, other than as expressly provided for in the related
Agreement or expressly agreed to in the other related Transaction Documents.
(g) The Owner Trustee shall not be liable for the default or
misconduct of the Depositor, the Indenture Trustee, the Administrator, or the
Master Servicer under any of the Transaction Documents or otherwise. The Owner
Trustee shall have no duty to perform the obligations of the Trust or the
Owner Trustee or any other person under any Agreement or the other Transaction
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indentures, the
Master Servicer under the Sale and Servicing Agreements, or the Depositor
under the Sale and Servicing Agreements, or any other person under any other
Transaction Document.
(h) The Owner Trustee need not exercise any of the rights or powers
vested in it by any Agreement, or to institute, conduct, or defend any
litigation under any Agreement or any other Transaction Document or otherwise,
at the request, order, or direction of the related Certificateholders, unless
one or more Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs and liabilities that may be
incurred by the Owner Trustee thereby.
(i) The right of the Owner Trustee to perform any discretionary act
in any Agreement or in any other Transaction Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable other than for its
gross negligence or willful misconduct in the performance of any discretionary
act.
Section 7.02. Furnishing Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly
on written request, copies of all reports, notices, requests, demands,
certificates, financial statements, and any other instruments furnished to the
Owner Trustee under the related Transaction Documents.
Section 7.03. Representations and Warranties.
Wilmington Trust Company hereby represents and warrants to the
Depositor that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver, and perform its obligations
under this Master Trust Agreement and each Series Supplement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Master Trust Agreement and each Series
Supplement, and this Master Trust Agreement and each Series Supplement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Master Trust Agreement and each Series Supplement on
its behalf.
(c) Neither the execution and delivery by it of this Master Trust
Agreement, nor the consummation by it of the transactions contemplated by this
Master Trust Agreement, nor compliance by it with any of the provisions of
this Master Trust Agreement will contravene any federal or Delaware law,
governmental rule, or regulation governing the banking or trust powers of the
Owner Trustee, or any judgment or order binding on it, or constitute a default
under its charter documents or bylaws.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall not be liable to anyone in acting under
this Master Trust Agreement on any signature, instrument, notice, resolution,
request, consent, order, certificate, report, opinion, bond, or other document
or paper believed by it to be genuine or believed by it to be signed by the
proper parties. The Owner Trustee may accept a certified copy of a resolution
of the board of directors or other governing body of any corporate party as
conclusive evidence that the resolution has been duly adopted and that it is
in full force and effect. As to any fact or matter the method of determination
of which is not specifically prescribed in the relevant Agreement, the Owner
Trustee may for all purposes of the Agreement conclusively rely on a
certificate, signed by a Responsible Officer of the relevant party, as to the
fact or matter, and that certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith
in reliance on it.
(b) In the exercise or administration of the trusts under any
Agreement and in the performance of its obligations under any Agreement or the
other Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys under agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of those
agents or attorneys if they were selected by the Owner Trustee with reasonable
care and (ii) may consult with counsel, accountants, and other skilled persons
it selects with reasonable care. The Owner Trustee shall not be liable for
anything done, suffered, or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants, or other persons.
Section 7.05. Not Acting in Individual Capacity.
Except as provided in this Article, (i) in acting in the capacity of
Owner Trustee pursuant to the trusts created by any Agreement, Wilmington
Trust Company acts solely as Owner Trustee under the Agreement and not in its
individual capacity, and (ii) all persons having any claim against the Owner
Trustee under the Agreement or any other Transaction Document shall look only
to the related Series Assets for payment or satisfaction of that claim.
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or
Payment Obligations.
The recitals contained in the Agreements and in the Transferor
Certificates (other than the signature and authentication of the Owner Trustee
on the Transferor Certificates) shall be taken as the statements of the
Depositor, and the Owner Trustee assumes no responsibility for their
correctness. The Owner Trustee makes no representations as to the validity or
sufficiency of any Agreement, of any other Transaction Document, of the
Transferor Certificates (other than the signature and authentication of the
Owner Trustee on the Transferor Certificates), of any Mortgage Loan or related
documents. The Owner Trustee shall not have any responsibility for
(i) the legality, validity, and enforceability of any Mortgage
Loan, or
(ii) the perfection and priority of any security interest
created in any Mortgage Loan or the maintenance of that perfection
and priority, or
(iii) the sufficiency of any Series Assets or their ability to
generate the payments to be distributed under the related Agreement
or the Noteholders under the related Indenture, or
(iv) the validity of the assignment of any Mortgage Loan to a
subtrust of the Trust, or of any intervening assignment, or
(v) the performance or enforcement of any Mortgage Loan, or
(vi) the compliance by the Depositor or the Master Servicer
with any warranty or representation made under any Transaction
Document or in any related document, or
(vii) any action of the Administrator, the Indenture Trustee,
or the Master Servicer or any subservicer taken in the name of the
Owner Trustee.
Section 7.07. Owner Trustee May Own Notes.
Wilmington Trust Company in its individual or any other capacity may
become the owner or pledgee of the Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee, and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses.
The Owner Trustee shall receive as compensation from the Sponsor for
its services under the Agreements fees that have been separately agreed on in
a fee agreement between the Sponsor and the Owner Trustee. The Owner Trustee
shall be entitled to be reimbursed by the Sponsor and the Trust for its other
reasonable expenses under the Agreements, including the reasonable
compensation, expenses, and disbursements of any agents, representatives,
experts, and counsel the Owner Trustee employs in connection with the exercise
and performance of its rights and obligations under the Agreements.
Section 8.02. Indemnification.
The Sponsor shall be liable as primary obligor for, and shall
indemnify the Owner Trustee (in its individual and trust capacities) and its
successors, assigns, agents, and servants (collectively, the "Indemnified
Parties") against any liabilities, obligations, losses, damages, taxes,
claims, actions, and suits, and any reasonable costs, expenses, and
disbursements (including reasonable legal fees and expenses) of any kind
whatsoever (collectively, "Expenses") that may be incurred by or asserted
against the Owner Trustee (in its individual and trust capacities) or any
other Indemnified Party in any way arising out of the Agreements, the other
Transaction Documents, the Series Assets, the administration of the Series
Assets, or the action or inaction of the Owner Trustee under the Agreement,
excepting only that the Sponsor shall not indemnify an Indemnified Party
against Expenses resulting from its willful misconduct or negligence or the
inaccuracy of any representation or warranty made by it. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee and the termination of this Master Trust Agreement. In any
claim, action, or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Sponsor, which approval shall not be unreasonably
withheld.
Section 8.03. Payments to Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this Article shall
not be a part of any Series Assets immediately after their payment. All
amounts then due to the Owner Trustee from the Trust, the Depositor, or the
Master Servicer under any Transaction Document shall be paid in full before
any payments to the Depositor or any holder of a Transferor Certificate.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) The Trust shall dissolve when each subtrust has made the final
distribution of all moneys or other property or proceeds of all Series Assets
in accordance with the terms of the relevant Transaction Documents, and
Article V. Each subtrust of the Trust shall dissolve when the subtrust makes
its final distribution of all moneys or other property or proceeds of its
Series Assets in accordance with the terms of its Transaction Documents, and
Article V. The bankruptcy, liquidation, or dissolution of any
Certificateholder shall not (x) terminate the relevant Agreement or the Trust,
(y) entitle that Certificateholder's legal representatives to obtain an
accounting or to take any action in any court for a partition or winding up of
any part of the relevant subtrust of the Trust or the related Series Assets,
or (z) otherwise affect the rights and obligations of the parties to the
relevant Agreement.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
the Certificateholders may dissolve, revoke, or terminate the Trust.
(c) On the winding up of the Trust and payment of all liabilities of
the Trust in accordance with Section 3808 of the Business Trust Statute, the
Owner Trustee shall cancel the Certificate of Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in
accordance with the provisions of the Business Trust Statute. The Owner
Trustee may rely on the directions of the Administrator with respect to
winding up the Trust. Thereupon, this Master Trust Agreement (other than
Article VIII) and the Trust shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the
trusts created by this Master Trust Agreement by giving written notice of
resignation to the Administrator and the Depositor. When it receives a notice
of resignation, the Administrator shall promptly appoint a successor Owner
Trustee in writing delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee has been so appointed
and assumed trusteeship within thirty days after the notice of resignation,
the resigning Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
The Administrator may remove the Owner Trustee if at any time the
Owner Trustee is legally unable to act, or an Insolvency Event occurs with
respect to the Owner Trustee. If the Administrator removes the Owner Trustee
under the authority of the preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee in writing delivered to the
outgoing Owner Trustee and to the successor Owner Trustee, and shall pay all
fees and expenses owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee shall not become effective until acceptance of
appointment by the successor Owner Trustee pursuant to Section 10.02 and
payment of all fees and expenses of the outgoing Owner Trustee. The
Administrator shall provide notice of any resignation or removal of the Owner
Trustee to each of the Rating Agencies, the Depositor, and the Credit
Enhancer.
Section 10.02. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.01 shall
execute and deliver to the Administrator, the Depositor, and to the
predecessor Owner Trustee an instrument accepting appointment as trustee under
this Master Trust Agreement, and thereupon the resignation or removal of the
predecessor Owner Trustee shall become effective. The successor Owner Trustee
shall become fully vested with all the rights and obligations of its
predecessor under this Master Trust Agreement, with like effect as if
originally named as Owner Trustee without any further act, deed, or
conveyance. The predecessor Owner Trustee shall promptly deliver to the
successor Owner Trustee all documents, statements, and monies held by it under
any Agreement. The Administrator and the predecessor Owner Trustee shall
execute and deliver any instruments and do anything else for fully and
certainly vesting and confirming in the successor Owner Trustee all rights and
obligations under any Agreement.
When a successor Owner Trustee accepts its appointment pursuant to
this Section, the Administrator shall mail notice of the change in trustee to
the Certificateholders, the Depositor, the Indenture Trustee, the Noteholders,
the Credit Enhancer, and the Rating Agencies. If the Administrator fails to
mail that notice within ten days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall mail that notice at
the expense of the Administrator.
The successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business in the State of Delaware
of the successor Owner Trustee.
Section 10.03. Merger or Consolidation of Owner Trustee.
Any person into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any person resulting from any merger,
conversion, or consolidation to which the Owner Trustee is a party, or any
person succeeding to all or substantially all of the corporate trust business
of the Owner Trustee, shall be the successor of the Owner Trustee under this
Master Trust Agreement without the execution or filing of any instrument or
any further act on the part of any of the parties to this Master Trust
Agreement, anything to the contrary notwithstanding. The Owner Trustee shall
mail notice of the merger or consolidation or other action to each Rating
Agency.
Section 10.04. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of the Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Series Assets may at any time be located, the Administrator
and the Owner Trustee acting jointly shall execute and deliver all instruments
to appoint persons approved by the Administrator and Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee, of all or
any part of any Series Assets, and to vest in that person, in that capacity,
such title to the Series Assets or any part thereof and, subject to the other
provisions of this Section, such rights and obligations as the Administrator
and the Owner Trustee consider appropriate. If the Administrator has not
joined in the appointment within fifteen days after the receipt by it of a
request so to do, the Owner Trustee alone may make the appointment. No notice
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.02.
Each separate trustee and co-trustee shall be appointed and act
subject to the following provisions and conditions:
(a) All rights and obligations conferred or imposed on the Owner
Trustee shall be conferred on and exercised or performed by the Owner Trustee
and the separate trustee or co-trustee jointly (the separate trustee or
co-trustee is not authorized to act separately without the Owner Trustee
joining in the act), except to the extent that under applicable law the Owner
Trustee is incompetent or unqualified to perform the acts, in which case those
rights and obligations (including the holding of title to the Series Assets or
any portion of them in that jurisdiction) shall be exercised and performed
singly by the separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(b) No trustee under any Agreement shall be personally liable for any
act or omission of any other trustee under the Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request, or other writing given to the Owner Trustee
shall be considered to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to the relevant
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided in the
instrument of appointment, subject to the relevant Agreement, specifically
including every provision of the relevant Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Owner Trustee.
Each instrument of appointment shall be filed with the Owner Trustee and a
copy of it given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act with respect to the
relevant Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign, or be removed, all
of its estates, properties, rights, and obligations shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
This Master Trust Agreement may be amended in any way by the
Depositor and the Owner Trustee, with the consent of any affected
Certificateholder, but only if the Rating Agency Condition is satisfied and
the amendment would not cause any adverse tax event for any Noteholder.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish a copy of the amendment or consent to the
Certificateholders, the Indenture Trustee, and each Rating Agency.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause its filing with the Secretary of State of
the State of Delaware.
The Owner Trustee may, but shall not be obligated to, enter into any
amendment that affects the Owner Trustee's own rights or obligations under any
Agreement or otherwise.
In connection with the execution of any amendment to this Master
Trust Agreement, the Certificate of Trust, or any amendment of any other
agreement to which the Trust is a party, the Owner Trustee shall be entitled
to receive and conclusively rely upon an Opinion of Counsel to the effect that
the amendment is authorized or permitted by this Master Trust Agreement and
the Transaction Documents.
Section 11.02. No Legal Title to Series Assets in Certificateholders.
The Certificateholders shall not have legal title to any part of any
Series Assets. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest in the
related Series Assets only in accordance with Articles V and IX. No transfer,
by operation of law or otherwise, of any interest of the Certificateholders in
its ownership interest in any Series Assets shall operate to terminate the
related Agreement or the trusts under this Master Trust Agreement or entitle
any transferee to an accounting or to the transfer to it of legal title to any
part of any Series Assets.
Section 11.03. Limitations on Rights of Others.
The provisions of each Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the related Certificateholders, the
Administrator, and, to the extent expressly provided in this Master Trust
Agreement, the related Indenture Trustee and the related Noteholders, and
nothing in this Master Trust Agreement, whether express or implied, shall be
construed to give to any other person any legal or equitable interest in any
Series Assets or under this Master Trust Agreement.
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the relevant
Agreement, all notices shall be in writing and shall be considered given upon
receipt by the intended recipient, if to the Owner Trustee, addressed to the
Corporate Trust Office; if to the Depositor, addressed to CWABS, Inc., c/o
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, telephone
number (▇▇▇) ▇▇▇-▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; or, as to each party,
at any other address designated by it in a written notice to each other party.
(b) Any notice required or permitted to be given to the
Certificateholders shall be given by first-class mail, postage prepaid, at the
addresses of the Certificateholders. Any notice so mailed within the time
prescribed in the relevant Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives the notice.
Section 11.05. Severability.
Any provision of this Master Trust Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions hereof, and that prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable the provision in any other jurisdiction.
Section 11.06. Separate Counterparts.
This Master Trust Agreement may be executed by the parties to this
Master Trust Agreement in separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts shall
together constitute but one instrument.
Section 11.07. Successors and Assigns.
All covenants and agreements contained in this Master Trust Agreement
shall be binding on, and inure to the benefit of, each of the Depositor and
its permitted assignees, the Owner Trustee and its successors, and each
Certificateholder and any of its successors, all as provided in this Master
Trust Agreement. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind its successors.
Section 11.08. Nonpetition Covenant.
Notwithstanding any prior termination of any Agreement, the Depositor
and the Owner Trustee, by entering into the Agreement, and each related
Certificateholder, by accepting a Transferor Certificate, agree that they
shall not, before the date that is one year and one day after the termination
of the Agreement, file or participate in the filing of any petition against
the Trust that could cause the Trust to incur an Insolvency Event. Nothing in
this Master Trust Agreement shall prohibit the Owner Trustee from
participating in or filing proofs of claim in any such proceeding instituted
by any other person.
Section 11.09. No Recourse.
Each Certificateholder by accepting a Transferor Certificate
acknowledges that the Transferor Certificate represents the beneficial
interest in the related subtrust of the Trust only and does not represent
interests in or obligations of the Depositor, the Servicer, the Administrator,
the Owner Trustee, the Indenture Trustee, or any Affiliate of any of them or
any other subtrust of the Trust and no recourse may be had against those
parties or their assets, except as may be expressly stated or contemplated in
the relevant Agreement, the other related Transaction Documents, or the
Transferor Certificates.
Section 11.10. Headings.
The headings of the various Articles and Sections in this Master
Trust Agreement are for convenience of reference only and shall not define or
limit any of the provisions of this Master Trust Agreement.
Section 11.11. GOVERNING LAW.
THIS MASTER TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
Section 11.12. Rule 144A Information.
As long as any of the securities of any Series are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Administrator on behalf of the Trust shall provide to any Noteholder or
Certificateholder and to any prospective purchaser from any of them designated
by any of them on the request of the Noteholder, Certificateholder, or
prospective purchaser, any information required to be provided the holder or
prospective purchaser to satisfy the conditions of Rule 144A(d)(4) under the
Securities Act.
IN WITNESS WHEREOF, the parties to this Master Trust Agreement have
caused this Master Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above written.
CWABS, INC.
Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
Master Servicer
With respect to Article VIII only
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF CWABS MASTER TRUST
This Certificate of Trust of CWABS Master Trust (the "Trust"), dated
August [__], 2000, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code, ss. 3801 et seq.) (the
"Act").
1. Name. The name of the business trust formed hereby is CWABS Master
Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company,
[________________], [_________], Delaware _____, Attention:
[________________].
3. Separate Series. Pursuant to Section 3806(b)(2) of the Act, the
Trust will issue one or more series of beneficial interests (that it calls
Subtrusts) having the rights and preferences specified in the governing
instrument of the Trust, as it may be amended from time to time (each a
"Series").
4. Notice of Limitation of Liability of Each Series. Pursuant to
Section 3804(a) of the Act, the liabilities of each Series shall be limited
such that (a) the debts, liabilities, obligations, and expenses incurred,
contracted for, or otherwise existing with respect to a particular Series
shall be enforceable against the assets of the particular Series only, and not
against the assets of the Trust generally, or the assets of any other Series
and (b) none of the debts, liabilities, obligations, and expenses incurred,
contracted for, or otherwise existing with respect to the Trust generally any
other Series shall be enforceable against the assets of the particular Series.
5. Effective Date. This Certificate of Trust shall be effective upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
Address: not in its individual capacity,
▇▇▇▇▇▇ Square North but solely as owner trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
By: ____________________________
Name:
Title: